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HomeMy Public PortalAbout105-2014 - Metro - Cardno Atc. - Asbestos Survey - 1225 S A St & 120 N. 14th StPROFESSIONAL SERVICES AGREEMENT THIS AGREEMENT made and entered into this day of 2014, and referred to as Contract No. 105-2014, by and between the City of Richmond, 141 iana, a municipal corporation acting by and through its Board of Public Works and Safety (hereinafter referred to as the "City") and Cardno ATC, 7988 Centerpoint Drive, Suite 100, Indianapolis, Indiana, 46256 (hereinafter referred to as the "Contractor"). SECTION 1. STATEMENT AND SUBJECT OF WORK City hereby retains Contractor to professional asbestos investigations of the properties located at 1225 South A Street and 120 North 14'h Street, both located in Richmond, Indiana, as more fully described on Contractor's proposal. Contractor's proposal, consisting of seven (7) pages, dated August 22, 2014, is attached hereto as Exhibit A, which Exhibit is incorporated by reference and made a part of this Agreement. Contractor agrees to abide by the same. 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. SECTION III. COMPENSATION City shall pay Contractor a sum estimated not to exceed Three Thousand Six Hundred Fifty Dollars ($3,650.00) for the complete and satisfactory performance of this Agreement. SECTION IV. TERM OF AGREEMENT This Agreement shall be effective when signed by all parties and shall continue in effect until completion of the appraisals. Contract No.105 -2014 Page 1 of 5 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 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. Coveraze 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 Page 2 of 5 D. Comprehensive Auto Liability Section 1. Bodily Injury Section 2. Property Damage E. Comprehensive Umbrella Liability $1,000,000 each person $1,000,000 each occurrence $1,000,000 each occurrence $1,000,000 each occurrence $1,000,000 each aggregate F. Malpractice/Errors & Omissions Insurance $500,000 each occurrence $500,000 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. 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. Page 3 of 5 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 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. 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 Courts. By executing this Page 4 of 5 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 B `5�� Y� Vicki Robinson, President By: IM-4-- Richard Foore, Member LN Anthony L. Foster, II, Member AP PROVED. . Sarah L. Hutton, Mayor Date: "CONTRACTOR" CARDNO ATC 7988 Centerpoint Drive, Suite 100 Indianapolis, IN 46256 By: t �� Printed. Title-7-:�,,t/C ioAC- Date: Page 5 of 5 EXHIBIT PAGE --LOFZ �� Candno' ATC August 22, 2014 Mr. Tony Foster II Executive Director, City of Richmond Department of Metropolitan Development 50 North 5rh Street Richmond, Indiana 47374 tfosterdrich mondindiana. gov Subject: Asbestos Consulting Services Property 1: Residential structure split into at least eight (8) units 1225 S A Street, Richmond, Indiana Property 2: Residential structure split into six (6) units 140 North 14rh Street, Richmond, Indiana Cardno ATC Proposal No. 086-2014-0572 Dear Mr. Foster: Cardno ATC is pleased to submit the following proposal for asbestos investigations at the above mentioned sites located in Richmond, Indiana. We would like to thank you for allowing us the opportunity to provide this proposal. We propose to perform a comprehensive asbestos investigation in which suspect materials observed throughout the buildings will be documented and either sampled or assumed to contain asbestos. Select Category I and II non -friable material samples will not be collected as part of this survey unless deemed by the inspector to be in friable condition, as these materials can be disposed of as regular construction debris utilizing routine demolition activities, i.e. no abrading, sanding, grinding. All samples will be collected by Cardno ATC building inspectors who are accredited by the State of Indiana, as required by Indiana regulations. To minimize the cost of sample analysis and sample shipment by mail, a local, fully accredited laboratory will perform all analyses. During an asbestos investigation, the site is inspected for the presence of surfacing materials (i.e., plaster and textured paint), thermal system insulation (i.e., pipe coverings and pipe fitting insulation) and miscellaneous materials (i.e., floor tile, wallboard and roofing materials) that may contain more than 1 percent asbestos. All of the materials suspected of being asbestos - containing materials (ACMs) are categorized in homogeneous areas (HAs). Each HA consists of all observed materials found in various locations in a building that are similar in color, appearance, texture and date of installation. Shopling dw Furore Cardno ATC 7988 Centerpoint Dr. Suite 100 Indianapolis, IN 46256 Phone +1317 849 4990 Fax +1317 849 4278 www.cardno.com www.cardnoatc.com Australia • Belgium • Canada • Colombia • Ecuador • Germany • Indonesia • Italy Kenya • New Zealand - Papua New Guinea • Peru • Tanzania • United Arab Emirates United Kingdom • United States • Operations in 85 countries EXHIBIT _L PAGE _0E-1 2 cn/'!C no- . City of Richmond ATC August 22, 2014 Shaping 1M Wtun Conducting sampling to identify asbestos -containing materials will cost-effectively enable City of Richmond to properly plan asbestos abatement activities, if warranted. The EPA's National Emission Standard for Hazardous Air Pollutants (NESHAP) standard for asbestos (40 CFR Part 61, Subpart M) requires thorough inspections for the presence of both friable and non -friable ACMs in all buildings to be demolished or renovated. Local, state and federal environmental agencies may also require notification prior to any renovation or demolition activities in public or commercial buildings, and this investigation will provide data required for in these notifications. When asbestos is found in a bulk sample of friable material, but the asbestos content is determined by visual estimation to be less than 10%, the building owner/operator may either (1) elect to assume that the material contains more than 1 % asbestos and is therefore a legally defined ACM, or (2) require verification of the asbestos content using the Point Counting method. Unless otherwise directed by the client, Cardno ATC will assume that visual estimation is acceptable for the purposes of this investigation. Following the investigations, the results will be made available to the appropriate client representative through a written report. This report will detail survey and sampling methods, sample results, an assessment of the condition of the hazardous materials and recommendations, if warranted. Cardno ATC will perform these investigations for a lump -sum cost of $3,650.00. This cost will include labor, mileage, PLM analysis of up to 60 bulk samples for asbestos, project review and generation of a final report for each property. Cardno ATC's estimate of sampling cost is based on the assumption that a representative sample of all suspected ACM materials are accessible for sampling. Any Additional PLM analysis will be performed for $10.00 per sample and any point -count analysis will be performed for $46.00 per sample. However, no additional analysis will be performed without the appropriate client representative's consent. Our professional services will be performed, our findings obtained and our recommendations prepared in accordance with customary principles and practices in the fields of environmental science and engineering. This warranty is in lieu of all other warranties either express or implied and no other warranties will be given. Please acknowledge the terms of our proposal by completing the requested information, signing and dating the Proposal Acceptance Form. We ask that you return an executed copy of the Proposal Acceptance Form (or other signed authorization that references our proposal number). The written proposal, including the terms and conditions, constitutes the contract. Upon our receipt of signed authorization, we will schedule and begin work on the project. This proposal and any associated terms and conditions are considered to be valid for a period of 90 days from the date above. www.cardnoatc.com PHIFT-7—LPAGE OF2_1 3 cnrwno-- City of Richmond AT August 22, 2014 utl the futon We appreciate the opportunity to provide you with this proposal and look forward to working with you on this project. Please call us if you have any questions or comments about our proposal. Sincerely, am"a K-T'axz„-- Laura M. Totten Industrial Hygiene Group Manager for Cardno ATC Direct Line +1 317 579 4081 Email: laura.totten(cDcardno.com Enc: Proposal Acceptance Form Rob Walker, LPG Principal Geologist for Cardno ATC Direct Line +1 317 579 4014 Email: rob.walkerO-)cardno.com www.cardnoatc.com •. . A%B/,dlfO' ngdwFon PROPOSAL ACCEPTANCE FORM This Agreement is made by acceptance below of the Contract Document this August 22, 2014, by and between City of Richmond of Richmond, Indiana ("Client'), and ATC Group Services Inc. d/b/a Cardno ATC of Indianapolis, Indiana. Client and Cardno ATC agree as follows: 1. CONTRACT DOCUMENT — Referred to as the "Contract Document" or "Agreement." Defined as: PROPOSAL ACCEPTANCE FORM, the GENERAL TERMS AND CONDITIONS, and any proposals that includes a scope of services, fee schedules and other documents listed below under PROFESSIONAL SERVICES. 2. PROFESSIONAL SERVICES — Cardno ATC will provide professional services ("Services") for the Client as indicated in the following documents: 2.1 Proposal No. 086-2014-0572 dated the August 22, 2014, AND 2.2 Other proposal documents by reference: AND 2.3 Other subcontracts, service agreements, and/or vendor contracts (list): N/A 3. DESIGNATED REPRESENTATIVES — The parties designate the following named individuals as their authorized representatives to provide approvals, directives, and permissions, including changes, and to receive notices or other communications under this agreement at the following addresses: DESIGNATED REPRESENTATIVE ATC GROUP SERVICES INC. d/b/a Cardno ATC Name: Laura Totten Address: 7988 Centerpoint Drive, Suite 100 Indianapolis, Indiana 46256 Phone: (317) 579-4081 Email: Iaura.tottenCcl)-cardno.com DESIGNATED REPRESENTATIVE CLIENT Name: Address: Phone: Email: YOUR SIGNATURE INDICATES ACCEPTANCE OF THE CONTRACT DOCUMENT, AS DEFINED ABOVE, UNLESS EXPRESSLY MODIFIED IN WRITING. ACCEPTED BY: ATC GROUP SERVICES INC. d/b/a Cardno ATC By: Title: Date: CLIENT: By: (Person authorized to execute contracts) Title: Date: www.cardnoatc.com BI PAGE OF ATC CLIENT SERVICE AGREEMENT 1. SERVICES TO BE PERFORMED Cardno ATC shall prepare a proposal and/or a service order for Client. The proposal and/or service order shall describe the work to be performed (Services), the location (Site), fees and/or rates to be charged, certain special conditions of performance including equipment, sampling protocols, and necessary reimbursable expenses. Cardno ATC will be authorized to proceed with the Services (Service Order), when Client indicates its acceptance by signing this Agreement. The proposal, Service Order, this Agreement and any attachments pertaining to thereto shall comprise the Contract Document. 2. ADDITIONAL SERVICES If any additional or different Services are required to complete an existing Service Order, these additional Services shall be set forth in a new Service Order satisfying all applicable and appropriate requirements including a separate schedule of fees and Services (Change Order). 3. COMPENSATION Client will pay Cardno ATC for Services and expenses in accordance with the Service Order. Cardno ATC will submit periodic invoices to Client together with reasonable supporting documentation requested by Client and a final bill upon completion of its services. Unless otherwise agreed in writing, there shall be no retainage. Payment is due within thirty (30) days regardless of whether Client has been reimbursed by any other party. Cardno ATC may suspend work, withhold reports and vacate the site without liability if payment is not received. Client will indemnify Cardno ATC for all claims concerning the suspension of work for nonpayment regardless of whether the claims are by the Client, someone claiming through the client, or by a third party. Client agrees to pay Cardno ATC's attorney's fees, and all other costs incurred in collecting past due amounts. Cardno ATC may from time to time revise its fens and/or rates and advise client either by general notification, or by specific Service Order. 4. EXPENSES Unless otherwise stated in the Service Order, Client agrees to pay Cardno ATC for its reimbursable expenses, in addition to its fees. Reimbursable expenses are expenditures made by Cardno ATC in the interest of the contracted Services. Reimbursable expenses shall be billed, and paid, in accordance with the schedule included with the Service Order. Cardno ATC will submit a Change Order to Client detailing other reimbursable expenses not outlined in the Service Order, for written authorization prior to billing. 5. INSURANCE Cardno ATC agrees that it now carries, and will continue to carry during the performance of any Services under this Agreement, Workers' Compensation and Employer's Liability, Commercial General Liability (including Contractual Liability), Commercial Automobile Liability, Professional Liability and Contractor's Pollution Liability insurance coverage with limits at or above those described below. a. Workers' Compensation (statutory) Employer's Liability ■ Each accident $ 1,000,000 ■ Disease — Each Employee $ 1,000,000 ■ Disease — Policy Limit $ 1,000,000 b. Commercial General Liability ■ Each Occurrence $1,000,000 ■ Personal and Advertising Injury $1,000,000 ■ General Aggregate $2,000,000 ■ Products and Completed Operations Aggregate $2,000,000 c. Commercial Automobile Liability ■ Combined Single Limit $1,000,000 d. Errors and Omissions / Professional Liability ■ Each Claim $1,000,000 ■ Annual Aggregate $1,000,000 e. Contractor's Pollution Liability ■ Each Claim $1,000,000 ■ Annual Aggregate $1,000,000 6. OBLIGATIONS OF CLIENT Client warrants that all information provided to Cardno ATC concerning the required Services is complete and accurate to the best of Client's knowledge. Client agrees to advise Cardno ATC prior to commencement of the Services, and during the work, of any hazardous conditions on or near the Site known to Client. Client understands that Cardno ATC is relying upon the completeness and accuracy of information supplied to it by Client and Cardno ATC will not independently verify such information unless otherwise provided in the Service Order. Client shall be solely responsible for and shall indemnify and hold harmless Cardno ATC for any costs, expenses or damages incurred by Cardno ATC due to Client's failure to follow applicable reporting and governmental requirements. Client will not hold Cardno ATC liable if Cardno ATC's recommendations are not followed and waives any claim against Cardno ATC, and agrees to defend, indemnify and hold Cardno ATC harmless from any claim or liability for injury or loss that results from failure to properly implement Cardno ATC's recommendations. 7. STANDARD OF CARE Cardno ATC's Services as defined by the Service Order shall be performed in accordance with generally accepted industry principles and practices, consistent with a level of care and skill ordinarily practiced by the consulting profession currently providing similar services under similar circumstances at the time the Services were provided. Client agrees to give Cardno ATC written notice within one (1) year of any breach or default under this section and to provide Cardno ATC a reasonable opportunity to cure such breach or default, without the payment of additional fees to Cardno ATC, as a condition precedent to any claim for damages. 8. LIMITATIONS OF METHOD RELIABILITY The Client recognizes and agrees that all testing and remediation methods have inherent reliability limitations; no method or number of sampling locations can guarantee that a condition will be discovered within the performance of a Service Order as authorized by the Client. The Client further acknowledges and agrees that reliability of testing or remediation methods varies according to the sampling frequency and other variables and that these factors, including cost, have been considered in the Client's selection of Services. Cardno ATC's observations only represent conditions observed at the time of the Site visit. Cardno ATC is not responsible for changes that may occur to the Site after Cardno ATC completes the Services. 9. INTERPRETATION OF DATA Cardno ATC shall not be responsible for the interpretation of Cardno ATC data by third parties, or the information developed by third parties from such data. Client recognizes that subsurface conditions may vary from those encountered at the locations where the borings, surveys, or explorations are made by Cardno ATC and that the data interpretations and recommendations of Cardno ATC's personnel are based solely on the information available to them. 10. THIRD PARTY INFORMATION Cardno ATC is dependent on information available from various governmental agencies and private database firms to aid in evaluating the history of the Site. Cardno ATC shall not be liable for any such agency's or database fi m's failure to make relevant files or documents properly + � Cardno ATC Client Services Agreement EXHIBIT ,.-L PAGE -(j_OF= 2012 available, to properly index files, or otherwise to fail to maintain or produce accurate or complete records. 11. SITE ACCESS Client grants or shall obtain for Cardno ATC a right of entry to all parts of the Site necessary to complete the requested Services and unless otherwise specified in the Service Order, it represents that it has obtained the applicable permits and licenses for the proposed Services. If Client does not own the Site, Client represents that it has or will obtain prior to the commencement of the Services, the authority and permission of the owner and/or the occupant of the Site. Client acknowledges that due to the nature of some Services unavoidable damage may occur. Client waives its right of recovery for such unavoidable damage, and if Client is not the owner of the Site, Client agrees to indemnify and defend Cardno ATC against any claims by the owner and/or occupant for any such damage. Unless otherwise specified in the Service Order, Cardno ATC is not liable for damages caused by exploratory demolition or investigation to identify, quantify, or evaluate building materials, systems, and/or components not readily accessible to Cardno ATC during Cardno ATC's performance of the Services. Cardno ATC is not responsible for unforeseen conditions that exist on the Site within building systems that prohibit or deter Cardno ATC from gaining access to building materials, systems, and/or components. 12. SITE CONTROL Cardno ATC's testing, observation, or inspection of the work of other parties on a project shall not relieve such parties of their responsibility to perform their work in accordance with applicable plans, specifications and safety requirements. Continuous monitoring by Cardno ATC's employees does not mean that Cardno ATC is observing or verifying all Site work or placement of all materials. Client agrees that Cardno ATC will only make on -Site observations appropriate to the Services provided by Cardno ATC and will not relieve others of their responsibilities to perform the work. 13. TEST AND SAMPLING LOCATIONS Unless otherwise specified in the Service Order, the accuracy of test or sampling locations and elevations will be commensurate only with pacing and approximate measurements or estimates. Client should retain the services of a professional surveyor if greater accuracy is required. Client will furnish a diagram indicating the accurate location of the Site. Sample locations may also be indicated on the diagram. Cardno ATC reserves the right to deviate a reasonable distance from the boring and sampling locations unless this right is specifically revoked by Client in writing at the time the diagram is supplied. 14. SAMPLES AND EQUIPMENT Unless otherwise specified in the Service Order or required by law, Cardno ATC will not retain any samples obtained from the Site. At no time does Cardno ATC assume title to the samples; all samples shall remain the property of the Client. Cardno ATC will, however, sign manifests as agent for Client. All laboratory and field equipment contaminated during Cardno ATC's Services that cannot readily and adequately cleansed of its hazardous contaminants shall become the property and responsibility of Client. Client shall purchase all such equipment as an expense of the Services, and it shall be turned over to the Client for proper disposal unless otherwise specified in the Service Order. 15. ENGINEERING AND CONSTRUCTION SERVICES If the Services requested only require geotechnical engineering, subsurface exploration, construction materials testing, and or engineering, Cardno ATC assumes that there are no hazardous substances or constituents in the soils or groundwater underlying the Site. Cardno ATC's duties and responsibilities are limited to performing tests and monitoring of specific construction activities as outlined in the Service Order. Unless otherwise specified in the Service Order, any consulting, testing or monitoring related to environmental conditions, including, but not limited to hazardous waste, soil or groundwater contamination, or air pollutants are not part of Cardno ATC's engineering and construction Services. If it becomes apparent during the field exploration that hazardous substances or constituents may be present, field operations will be terminated without liability. 16.OPINIONS OF COSTS Cardno ATC may provide estimates of costs for remediation or construction as appropriate based on available data, designs, or recommendations. However, these opinions are intended primarily to provide information on the range of costs and are not intended for use in firm budgeting or negotiation unless specifically agreed to in writing by Cardno ATC. 17. SAFETY Cardno ATC shall not, unless otherwise specified in the Service Order, be responsible for health and safety procedures, construction means, methods, techniques, sequences, or procedures, nor be responsible for the acts or omissions of contractors or other parties on the Site. 18. UTILITIES Unless otherwise specified in the Service Order, it is Client's responsibility to mark or furnish the locations of all underground man-made obstructions at all Sites that the Client owns and/or operates. Client shall indemnify, defend and hold harmless Cardno ATC from and against any claims, losses or damages incurred or asserted against Cardno ATC related to Client's failure to mark, protect or advise Cardno ATC of underground structures or utilities. 19. ROOF CUTS Unless otherwise specified in the Service Order, if roof cuts/samples are required by the Services, it is the responsibility of the Client to make appropriate repairs. If a roofing contractor or maintenance personnel selected by Client is not on the roof to make repairs at the time samples are obtained, Cardno ATC may make temporary repairs, which may result in additional charges. Cardno ATC personnel are not certified in roofing repair, therefore under no circumstances, shall Cardno ATC be responsible for any water damage to the roofing system, building, or its contents resulting from Cardno ATC's temporary repairs. 20. HAZARDOUS CONDITIONS OR SUBSTANCES The Client acknowledges that Cardno ATC has neither created nor contributed to the creation or existence of any hazardous, radioactive, toxic, irritant, pollutant, substance or constituent at the Site. All Site generated hazardous and non -hazardous waste, including used disposable protective gear and equipment, are the property of the Client. Client agrees to indemnify and hold harmless Cardno ATC against all claims for injury or loss sustained by any party, including the United States, from exposure, release, or the presence of any such hazardous, radioactive, toxic, irritant, pollutant, substance or constituent at the Site. This indemnity includes but is not limited to, Cardno ATC acting as Client's agent to sign waste manifests, allegations that Cardno ATC is a handler, generator, operator, treater or storer, transporter or disposer under any federal, state or local, law, regulation or ordinance, and Client's or third party's violation of federal, state or local, law, regulation or ordinance, related to the handling, storage, or disposal of hazardous substances or constituents attor introduced to the Site, before or after the completion of the Services. 21. RIGHT TO STOP WORK If, during the performance of a Service Order, any unforeseen hazardous substance, material, 1'1 gwratm Page 2 of 3 EXHIBIT PAGE -1 OF • Cardno ATC Client Services Agreement 2012 element, constituent, condition, or occurrence is encountered which, in Cardno ATC's reasonable judgment significantly affects or may affect the Services provided, the risk involved in providing the Services, or the recommended scope of Services, Cardno ATC may immediately suspend work. 22. CARDNO ATC AND CLIENT INDEMNIFICATION Cardno ATC shall indemnify and hold harmless Client against claims, demands, and lawsuits, to the extent arising out of or caused by the negligence or willful misconduct of Cardno ATC, in connection with activities conducted in the performance of the Services. The Client shall indemnify and hold harmless Cardno ATC from and against claims, demands, and lawsuits, to the extent arising out of or caused by Client's breach of this Agreement or the negligence or willful misconduct of the Client or other contractors retained by Client in connection with activities conducted in the performance of the Services. If a dispute arises between the parties resulting in litigation, the prevailing party shall be entitled to recover all reasonable costs incurred. Client agrees that all indemnifications granted to Cardno ATC shall also be granted to those subcontractors retained by Cardno ATC for the performance of the Services. 23. LIMIT OF LIABILITY Cardno ATC's total liability for all claims or causes of action of any kind including but not limited to negligence, bodily injury or property damage, breach of contract or warranty shall not exceed the amounts recoverable from the insurance limits set forth in this Agreement. 24. CONSEQUENTIAL DAMAGES In no event shall either party be liable to the other party for any consequential, incidental, punitive, or indirect damages including but not limited to loss of income, loss of profits, loss or restriction of use of property, or any other business losses regardless if such damages are caused by breach of contract, negligent act or omission, other wrongful act, or whether Cardno ATC shall be advised, shall have other reason to know, or in fact shall know of the possibility of such damages. 26. WARRANTY Cardno ATC is not a manufacturer. If any equipment is used or purchased by Cardno ATC for a Service Order the manufacturer's warranties if any on the equipment are solely those of the manufacturer. Cardno ATC makes no other representation, guarantee, or warranty, expressed or implied, in fact or by law, whether of merchantability, fitness for any particular purpose or otherwise, concerning any of the goods or Services which may be furnished by Cardno ATC to Client. 26. DOCUMENTS Project -specific documents and data produced by Cardno ATC under this Agreement shall, upon completion of the Service Order become the property of Client upon payment of amounts owed Cardno ATC. Cardno ATC shall have the right, but not the obligation, to retain copies of all such materials. 27. RELIANCE Documents and data produced by Cardno ATC are not intended or represented by Cardno ATC to be suitable for use or reliance beyond the scope or purpose for which they were originally prepared, or for anyone except the Client. Any such unauthorized use will be at the Client's or third parry's sole risk. 28. THIRD -PARTY CLAIMS Client agrees to pay Cardno ATC's costs (including reasonable attorney's fees) for defending Cardno ATC against any claims that a third party or a regulatory agency asserts against Cardno ATC related to the Services that were provided to Client. Claims include legal actions by a third party or a regulatory agency that are based upon the discoveries, findings or conclusions disclosed in documents or reports supplied to Client by Cardno ATC. 29. SUBPOENAS The Client is responsible for payment of Cardno ATC's time and expenses resulting from Cardno ATC's response to subpoenas issued by any party, involving any legal or administrative proceeding in which Cardno ATC is not named as a party, in connection with any Services performed under this Agreement. Charges are based on fee schedules in effect at the time the subpoena is served. Cardno ATC shall not object on Client's behalf to any subpoena, but will make reasonable efforts to cooperate with Client if Client chooses to object. 30. TERMINATION OF CONTRACT This Agreement may be terminated by either party upon seven (7) days written notice provided that any incomplete or unfinished Service Order will remain in effect until completed, unless otherwise agreed to in writing. In the event of termination or suspension, by the Client, Cardno ATC shall be paid for Services performed prior to the termination date plus reasonable termination and suspension expenses. 31. ASSIGNMENT Neither the Client nor Cardno ATC may assign, or transfer its benefits, rights, duties, or interest in this Agreement without the written consent of the other party. This Agreement shall be binding on and inure to the benefit of the successors and assigns of the parties. 32. FORCE MAJEURE Neither Client nor Cardno ATC shall hold the other responsible for damages or delays in performance caused by uncontrollable events, which could not reasonably have been anticipated or prevented, including but not limited to, acts of God, the public enemy, acts of the Government of the United States or of the several states, or any foreign country, or any of them acting in their sovereign capacity, materially different Site conditions, wars, riots, terrorism, rebellions, sabotage, fires, explosions, accidents, floods, strikes, or other conceded acts of workers, lockouts, or changes in laws, regulations, or ordinances. 33. GENERAL PROVISIONS The captions and headings throughout this Agreement are for convenience only and do not define, limit, modify, or add to the meaning of any provision of this Agreement. If any provision of this Agreement is in conflict with any provision of the Service Order, the terms and conditions of this Agreement shall prevail unless the conflict concerns the scope of Services to be provided. If any provision shall to any extent be deemed invalid, it shall be modified if possible to fulfill the intent of the parties as reflected in the original provision and the remainder of this Agreement shall not be affected. This Contract Document represents the entire understanding between the parties and supersedes any and all prior contracts whether written or oral. Nothing contained in this Contract Document shall be construed to be for the benefit of any persons not a party to this Agreement. No third party beneficiary rights are created. The validity, interpretation, and performance of this Agreement shall be governed by and construed in accordance with the laws of the state in which the Site is located. Any legal action arising out of this Agreement shall be venued in a court of competent jurisdiction within the state and county of the Site. No waiver by either party of any default by the other party in the performance of any provision of this Agreement shall operate as or be construed as a waiver of any future default, whether like or different in character. Cardno ATC is solely responsible for the performance of this Agreement, and no parent, subsidiary or affiliated company, or any of its directors, officers, employees, or agents shall have any legal responsibility whether in contract or tort, including negligence. ATC Page 3 of 3