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HomeMy Public PortalAbout093-2015 - Metro - TRC Environmental Corp. - Phase 1 Environmental Study - CSX AcquistionPROFESSIONAL SERVICES AGREEMENT THIS AGREEMENT made and entered into this Y" day of A20t/�, 2015, and referred to as Amended Contract No. 93-2015, by and between the City a 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 conduct a Phase I Environmental Study for the CSX rail line to be acquired by the City (hereinafter "Project"). The proposal of Contractor, dated July 31, 2015, is attached hereto as Exhibit "A", which Exhibit consists of twelve (12) 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 Il. 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. Amended Contract No. 93-2015 Page 1 of 6 SECTION III. COMPENSATION The Contractor shall be paid a total amount not to exceed Three Thousand Five Hundred Dollars and Zero Cents ($3,500.00), subject to adjustment as indicated in Exhibit A, 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. 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. 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 negligence or willful misconduct during the performance of this Agreement, 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 Page 2 of 6 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 A. Worker's Compensation & Disability Requirements B. Employer's Liability C. Comprehensive General Liability Section 1. Bodily Injury Section 2. Property Damage Comprehensive Auto Liability Section 1. Section 2. E. Umbrella Liability Bodily Injury Property Damage Limits Statutory $100,000 $1,000,000 each occurrence $2,000,000 aggregate $1,000,000 each occurrence $1,000,000 each person $1,000,000 each occurrence $1,000,000 each accident $1,000,000 each occurrence $2,000,000 each annual aggregate F. Malpractice/Errors & Omissions Insurance $1,000,000 each claim $1,000,000 each annual 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 e 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: 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 Page 4 of 6 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 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. Page 5 of 6 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 y: Vicki Robinson, President Richard Foore, Member "CONTRACTOR" TRC ENVIRONMENTAL CORP. 10475 Crosspoint Boulevard, Suite 250 Indianapolis, IN 46256 Printed: cv a 0. . I�r By: I Title: Anthony VKster, 11, Member APPROVED: 4 Date: Sarah L. Hutton, Mayor Date: 4�// f _// 5�� Page 6 of 6 EXHIBIT PAGE' 10475 Crosspoint Blvd. Suite 250 Indianapolis, IN 46256 317.517.2616 PHONE www.tresolutions.com July 31, 2015 City of Richmond, Indiana 50 North 5th Street Richmond, Indiana 47374 Attention: Tony Foster II Executive Director, City of Richmond Department of Metropolitan Development Reference: ASTM Phase I Environmental Site Assessments Potential Right of Way Purchase TRC Proposal No. 241169.9990 Dear Mr. Foster: At your request, TRC Environmental Corporation (TRC) is pleased to provide this proposal for the performance of a Phase I Environmental Site Assessment (Phase I ESA) in accordance with the American Society for Testing and Materials E 1527-13 Standard Practice for Environmental Site Assessments: Phase I Environmental Site Assessment Process (ASTM E 1527-13) for a Right of Way that was historically utilized as a CSX rail line. TRC understands that the approximately 10.73 acre Site consists of a former railroad right-of-way located in Richmond, Wayne County, Indiana. The right of way is approximately 50 feet (ft) in width and approximately one (1) mile in length. TRC further understands that this Phase I ESA is being performed in anticipation of potentially purchasing the Site property. TRC understands that this assessment is not funded with a federal grant awarded under the U.S. EPA Brownfields Assessment and Characterization program nor is the potential property transaction being financed with a Small Business Administration (SBA) loan. PROPOSED SCOPE OF SERVICES I. ASTM Phase I ESA A. Scope of Services The purpose of this Phase I ESA is to identify Recognized Environmental Conditions (RECs) at the Site, as defined by the ASTM E 1527-13 standard. 241169.9990PRP/cau EXHIBIT PAIE1= Mr. Tony Foster II Executive Director, City of Richmond Department of Metropolitan Development July 31, 2015 TRC Proposal Number 241169.9990 Page 2 The scope of services for this proposed Phase I ESA includes the following tasks: • Perform a Site and vicinity reconnaissance; • Provide a description of current Site operations; • Conduct historical source reviews and provide descriptions of historical Site conditions; • Conduct interviews with Site owners, operators, occupants, and/or local officials, as applicable; • Conduct reviews of environmental database and regulatory agency records; • If the Site or any adjoining property is identified on one or more of the standard environmental record sources identified in the ASTM E 1527-13 standard, Section 8.2.1, pertinent regulatory files and/or records associated with the listing may be reviewed. If, in the environmental professional's opinion, such a review is not warranted, the environmental professional will explain in the report the justification for not conducting the regulatory file review. • Conduct reviews of previous environmental reports/documentation, as provided to TRC; • Conduct reviews of environmental liens, if requested by the User (see Cost Section below); and • Prepare a report summarizing findings, opinions, and conclusions. According to the ASTM E 1527-13 standard, a Phase I ESA is considered valid if completed within 180 days prior to the date of acquisition of the subject property. If the Phase I ESA is completed between 180 days and one year of the date of acquisition, several components of the assessment will need to be updated. This cost estimate assumes the following: • Access to the Site and all on -site structures will be coordinated by the Client or Client representative; • The Site visit (including travel time) can be conducted in one eight -hour day by one TRC professional; • The Site property matches the description above and does not differ in operations, size or setting; • TRC will have timely, complete and unobstructed access to the Sites; • The ASTM E 1527-13 standard identifies reasonably ascertainable sources as information that can be provided within 20 calendar days of receiving a written, telephone, or in -person request from the source at no more than a nominal cost intended to cover the source's cost of retrieving and duplicating the information. Given the schedule of this proposed assessment, as stipulated by the Client, files requested from regulatory agencies as part of this assessment may not be provided to TRC within the proposed project schedule. File information included in this proposed assessment must be provided within the schedule outlined in Section IV of this proposal. This cost estimate assumes this Phase I ESA does not require additional regulatory agency files and records review under the ASTM E 1527-13 standards [8.2.2.1 Regulatory Agency File and Records Review]. If additional file review requests appear material for the evaluation of recognized environmental conditions, we will communicate potential agency turn -around and efforts to conduct the inquiry. We will not perform these requests without authorization from you given the additional cost and confidential nature of the project. • Should the schedule be changed or project be put on "hold" by the Client, all costs incurred by TRC up to the notification of change of schedule or "hold" status will be billed to the Client. Additional fees that TRC may incur once the project has resumed will also be billed to the Client in addition to the below -quoted fee; and 241169.9990PRP/cau IBIT PAGE OF. Mr. Tony Foster II Executive Director, City of Richmond Department of Metropolitan Development July 31, 2015 TRC Proposal Number 241169,9990 Page 3 • No delays beyond TRC's control will be encountered in performing the scope of services such as unforeseen travel circumstances, inclement weather, and conditions deemed unsafe by TRC personnel, etc. B. User Responsibilities The completion of the Phase I ESA is intended to satisfy one of the requirements for the "User" to qualify for the innocent landowner, contiguous property owner, or bona fide prospective purchaser limitations pursuant to Comprehensive Environmental Response, Compensation and Liability Act (CERCLA), thereby constituting all appropriate inquiries into the previous ownership and uses of the property consistent with good commercial or customary practice as defined by 42 U.S.C. §9601(35)(B) of CERCLA. Section 6 of the ASTM E 1527-13 standard describes the tasks to be performed by the "User" of the Phase I ESAs in order to qualify for one of the above -listed Landowner Liability Protections (LLPs). A User is defined by the ASTM E 1527-13 standard as the party seeking to use Practice E 1527 to complete an environmental site assessment of the property. A User may include, without limitation, a potential purchaser of property, a potential tenant of property, an owner of the property, a lender, or property manager. Based on this definition, TRC understands that the User associated with this Phase I ESA proposal is The City of Richmond. A standard questionnaire consistent with Appendix X.3 of the ASTM E 1527-13 standard is included with this proposal and is to be completed by the User and returned to TRC before the Site reconnaissance is conducted. In addition, it is expected that readily available "Helpful Documents" as defined by the ASTM E 1527-13 standard (i.e. prior environmental or remediation reports, environmental registrations, permits, etc.) will be provided to TRC within the timeframe and scope of the project. Failure to provide this information to TRC could result in a determination that the "all appropriate inquiry" is not complete. II. Additional Tasks (if applicable) A. ASTM Non -Scope Issues The ASTM E 1527-13 standard lists several issues that are not within the scope of a Phase I ESA. These "non -scope" issues may include: • Asbestos -containing materials • Lead -based paint • Wetlands • Cultural and historic resources • Health and safety • Endangered species • Mold • Radon • Lead in drinking water • Detailed regulatory compliance • Industrial hygiene • Ecological resources • Biological agents • Indoor Air Quality Unrelated to Releases of Hazardous • Substances or Petroleum Products into the Environment Should you wish to have any of the above issues or any other non-ASTM-related issue included as part of the scope of work, please advise TRC so that a separate budget can be developed. 241169.9990PRP/cau EXHIBIT PAGEOF Mr. Tony Foster II Executive Director, City of Richmond Department of Metropolitan Development July 31, 2015 TRC Proposal Number 241169.9990 Page 4 III. Report An electronic DRAFT report will be issued for your review and comment. Upon receipt and consideration of your comments, the FINAL report will be issued upon your authorization. The FINAL report will be provided electronically on our secure website for your access as a portable document format (PDF) and on two compact discs (CDs). IV. Schedule TRC can complete the above scope of work to meet your schedule assuming authorization to proceed is received from you and timely access to the Site is obtained by TRC at least fifteen business days prior to the due date of the Phase I ESA report. TRC will provide the DRAFT report to you within six to eight business days following the Site reconnaissance. TRC will provide a FINAL Phase I ESA reports within three business days following receipt of Client comments on the DRAFT report. Please note that provided the above referenced schedule, reasonable time and cost as defined by ASTM E 1527-13 is defined to be 20 calendar days from the date of the information request be it a local agency or file request, which may not be consistent with the date of authorization to commence this scope of work. Not all information may be received by TRC given the more expedited schedule for this scope of work. V. Cost We propose a lump sum cost of $3,500 for the services outlined in the above scope of work This estimate may change if additional work or any other services not specifically included in the scope of work are requested or required. If TRC determines this estimated amount to be insufficient to complete the scope of work, TRC will provide an estimate of the additional cost for authorization. This Phase I ESA does not include additional regulatory agency files and records review under the ASTM E 1527-13 standards [8.2.2.1 Regulatory Agency File and Records Review]. If additional file review requests appear material for the evaluation of recognized environmental conditions through the review of the regulatory database search or Site interviews, we will communicate potential agency turn -around and efforts to conduct the inquiry. We will not perform these requests without authorization from you given the additional cost and confidential nature of the project. This above cost estimate does not include a search for environmental liens and activity use limitations that may appear on recorded land titles. The search is a User requirement pursuant to the ASTM E 1527-13 standard and must be performed in order to comply with the ASTM E 1527-13 standard. The search differs from a standard chain of title search in that standard chain of title searches do not typically document environmental liens and activity use restrictions. The estimated cost given above includes the production of an electronic copy of the report to be provided to the Client on two CDs. The cost includes addressing comments from one client or client representative review of the DRAFT report. Should additional reviews of the DRAFT report be necessary, or additional CD copies or paper copies be requested by the Client, the additional expenses will be provided for your authorization. 241169.9990PRP/cau EXHIBIT PAGE S OF I?� Mr. Tony Foster II Executive Director, City of Richmond Department of Metropolitan Development July 31, 2015 TRC Proposal Number 241169.9990 Page 5 The Client agrees to pay for all services and reimbursable expenses in accordance with the attached Terms and Conditions. VI. Closing If the scope of services, letter agreement, and Terms and Conditions are acceptable, please sign below and return to the undersigned. We thank you and are appreciative for the opportunity, and look forward to working with you on this project. Please do not hesitate to contact us should you have any questions. Sincerely, TRC Environmental Corporation Joseph P. Bruns Project Manager Enclosures: TRC Standard Terms and Conditions User Questionnaire Brooks Bertl, P.E., P.G. Principal Consultant I hereby certify that I am authorized to enter into this agreement on behalf of Client, and accept and agree to the foregoing and all attachments including the Terms and Conditions on behalf of Client. Name, Title (please print) Company Name (please print) Signature 241169.9990PRP/cau Date EXHIBIT F PAGE OFF 2 TRC ENVIRONMENTAL CORPORATION TERMS AND CONDITIONS 1.0 SERVICES TRC Environmental Corporation ("Consultant") will provide environmental 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 and Terms attached as Exhibit 1 or 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. 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. Proposal NumberT&C/sap - 1 - 4/8/2013 EXHIBIT ��0F 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 STANDARD OF CARE 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. Reasonable people may disagree on matters involving professional 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 standard 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 Proposal NumberT&C/sap - 2 - 4/8/2013 EXHIBIT PAGE OF 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 IS EXCLUSIVE AND IN LIEU OF ANY AND ALL WARRANTIES, WHETHER WRITTEN, ORAL, IMPLIED OR STATUTORY, INCLUDING ANY WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. 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 assumes full responsibility for any claims, suits, accidents, injuries (including death) or damages to the person or property of any third party resulting from its own negligent, reckless or willful acts or those of any of its employees, representatives, contractors, consultants and agents in connection with the services rendered, and, to the extent of its proportionate responsibility therefor, will indemnify, defend and save harmless the other Party, its employees, representatives, contractors, consultants and agents from any costs, liabilities or expenses arising out of such negligent, reckless or willful acts. 8.2 Notwithstanding the foregoing, in the event that Consultant performs intrusive ground work as part of the Scope of Work, Client shall indemnify, defend and hold Consultant harmless from and against any and all claims, suits, accidents, injuries (including death) or damages to the person or property of any third party, including reasonable attorney's fees, resulting directly or indirectly from, or in any way 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. Proposal NumberT&C/sap - 3 - 4/8/2013 EXHIBIT PAGE � OF 1 Z 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 may request that Consultant limit or fully avoid any such third party communications. Client will indemnify and hold Consultant harmless from and against loss, damage, expense or penalty 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. Proposal NumberT&C/sap - 4 - 4/8/2013 ' EXHIBIT PAGE �,OF� 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 party 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 Proposal NumberT&C/sap - $ - 4/8/2013 EXHIBIT _ PAGE I OF MI unable to access required locations or perform required services in conformance with applicable safety 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; (iii) 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. 19.0 WAIVER 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. Proposal NumberT&C/sap - f) - 4/8/2013 1 fXH - � PAGE �OF� 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, without regard to choice of law or conflict of law principles. 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. Proposal Numbeff&C/sap - 7 - 4/8/2013