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
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Vicki Robinson, President
By:
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Richard Foore, Member
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Anthony L. Foster, II, Member
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Sarah L. Hutton, Mayor
Date:
"CONTRACTOR"
CARDNO ATC
7988 Centerpoint Drive, Suite 100
Indianapolis, IN 46256
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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
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City of Richmond ATC
August 22, 2014
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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
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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
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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,
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• 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
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