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HomeMy WebLinkAboutTerracon consultants, Inc.-Professional Services Agreement-08.20.2007 8, ao-67 Qe Leo, a667- 71?- Tr v,.4.1/4 August 17, 2007 lierracon k' f.4' 3 Consulting Engineers&Scientists Mr. Don Temeyer City of Waterloo IA AUG 20 6612 Chancellor Drive,Suite102 aoo Cedar Falls, Iowa 2 715 Mulberry St ` Phone 319.277.4016 Waterloo, Iowa 50703 Fax 319.277.4320 www.terracon.com Telephone: 319-291-4366 (00 IOWP Facsimile: 319-291-4262 E-mail: RE: Proposal for Phase I Environmental Site Assessment Community National Bank Parking Lot Parcel 8913-26-230-006 Waterloo, Iowa 50704 Terracon Proposal No: CF07330 Dear Mr. Temeyer: Terracon Consultants, Inc. (Terracon) appreciates the opportunity to submit this proposal to City of Waterloo IA (client) to conduct a Phase I Environmental Site Assessment (ESA) of the above-referenced site. A. PROJECT INFORMATION We understand the site is currently a concrete parking lot for Community National Bank situated on approximately 0.321 acres south of 422 Commercial Street, Waterloo, Iowa. If this is not accurate, or if you have additional useful information, please inform us as soon as possible. B. SCOPE OF SERVICES 1. Base Phase I ESA Services The ESA will be performed consistent with the procedures included in ASTM E 1527-05, Standard Practice for Environmental Site Assessments: Phase I Environmental Assessment Process. The purpose of this ESA is to assist the client in developing information to identify recognized environmental conditions' (RECs) in connection with the site as reflected by the scope of this proposal. If modifications to the scope of services are required, please contact us to discuss proposal revisions. ' Recognized Environmental Conditions are defined by ASTM E 1527-05 as"the presence or likely presence of any hazardous substances or petroleum products on a property under conditions that indicate an existing release, a past release, or a material threat of release of any hazardous substances or petroleum products into structures on the property or into the ground, groundwater, or surface water of the property. The term Delivering Success for Clients and Employees Since 1965 More Than 95 Offices Nationwide City of Waterloo IA 1ierracon Proposal No: CF07330 �oset sEgees&s;e ; s August 17, 2007 includes hazardous substances or petroleum products even under conditions of compliance with laws. The term is not intended to include de minimis conditions that generally do not present a material risk of harm to the public health or the environment and that generally would rot be the subject of an enforcement action if brought to the attention of appropriate governmental agencies." Physical Setting The physical setting for the site will be described based on a review of the applicable USGS topographic quadrangle map, USDA soil survey, and selected geologic reference information. Historical Use Information A review of selected historical sources, where reasonably ascertainable and readily available, will be conducted in an attempt to document obvious past land use of the site and adjoining properties back to 1940 or when the site was initially developed, whichever is earlier. The following selected references, depending on applicability and likely usefulness, will be reviewed for the site. • Historical topographic maps • Aerial photographs (approximate 10 to 15 year intervals) • City directories (approximate 5 year intervals) • Fire (Sanborn) insurance maps • Property tax file information • Site title search information, if provided by client • Environmental liens, if provided by the client • Building departmert records • Zoning records • Prior environmental reports, permits and registrations; or geotechnical reports, if provided by the client Pursuant to ASTM E 1527-05. the client should engage a title company or title professional to undertake a review of reasonably ascertainable recorded land title records and lien records for environmental liens currently recorded against or relating to the site. If the client is unable to provide land title records or environmental lien information, an abstract firm may be contracted by Terracon to develop a chain of title from a review of land title records for an additional fee. Documentation of environmental liens, if recorded, will be provided with the chain of title. Note, however, unless specifically requested within three days of project commencement, Terracon will rely on the client to provide land title records. If land title 2 City of Waterloo IA lierracon Proposal No: CF07330 Consulting Engineers&Scientists August 17, 2007 records or environmental lien information are not provided for review in a timely manner, Terracon may conclude that the absence of records represents a significant data gap, which must be documented in the final report. The client and the current owner or their representative will be interviewed to provide information regarding past uses of the site and information pertaining to the use of hazardous substances and petroleum products on the site. Additionally, a reasonable attempt will be made to interview past owners, operators, and occupants of the site to the extent that they are identified within the scope of the ESA and are likely to have material information that is not duplicative of information already obtained through the assessment process. Regulatory Records Review Consistent with ASTM E 1527-05, outlined below are the following federal, state, and tribal databases, where applicable are typically reviewed for indications of RECs, and the approximate minimum search distance of the review from the nearest property boundary. A database firm will be subcontracted to access governmental records used in this portion of the assessment. Additional federal, state, and local databases may be reviewed if provided by the database firm. Determining the location of unmapped facilities is beyond the scope of this assessment. Governmental Records Search Distance Federal NPL Site List 1.0 mile Federal NPL (Delisted) Site List 0.5 mile Federal CERCLIS NFRAP Sil:e List 0.5 mile Federal RCRA Corrective Actions (CORRACTS) TSD Facilities List 1.0 mile Federal RCRA Non-CORRACTS TSD Facilities List 0.5 mile Federal RCRA Generators List Site and Adjoining Federal Institutional Control/E:ngineering Control Registries Site Only Federal ERNS List Site Only State and Tribal-Equivalent NPL Site Lists 1.0 mile State and Tribal-Equivalent CERCLIS Lists 0.5 mile State and Tribal Landfill and/or Solid Waste Disposal Site Lists 0.5 mile State and Tribal Leaking UST Lists 0.5 mile State and Tribal Registered UST Lists Site and Adjoining State and Tribal Institutional Control/Engineering Control Registries Site Only State and Tribal VCP Site Lists j 0.5 mile State and Tribal Brownfield Site Lists 0.5 mile Tribal databases will only be evaluated if the site is located in an area where a recognized tribe has jurisdiction for environmental affairs. In addition to the database review and if customary practice for the site location, an attempt will be made to review reasonably ascertainable and useful local lists or records such as Brownfield sites, landfill/solid waste disposal sites, registered storage tanks, land records, 3 City of Waterloo IA lierracon Proposal No: CF07330 r �Ex Pesos east= August 17,2007 emergency release reports, and contaminated public wells. A reasonable attempt will also be made to interview at least one staff member of any one of the following types of local government agencies: fire department, health agency, planning department, building department, or environmental department. As an alternative, a written request for information may be submitted to the local agencies. If the results of the regulatory records review/local agency inquiry appear to warrant a review of applicable regulatory agency files, a cost estimate will be provided to the client for pre- approval. Please note that all requested files may not be available from regulatory agencies within the client's requested project schedule. Site and Adjoining/Surrounding Property Reconnaissance A site reconnaissance will be conducted to identify RECs. The reconnaissance will consist of visual observations of the site from the site boundaries and selected interior portions of the site. The site reconnaissance will include, where applicable, an interview with site personnel who the client has identified as having knowledge of the uses and physical characteristics of the site. Pertinent observations from the site reconnaissance will be documented including: • Site description • General site operations • Aboveground chemical or waste storage • Visible underground chemical or waste storage, drainage, or collection systems • Electrical transformers • Obvious releases of hazardous substances or petroleum products The adjoining property reconnaissance will consist of visual observations of the adjoining/surrounding properties from the site boundaries and accessible public right-of- ways. Report Preparation Two hard copies of the final report will be submitted that presents the results of this assessment, based upon the scope of services and limitations described herein. The final report will be signed by an environmental professional responsible for the Phase I ESA, and the report will contain an environmental professional statement as required by 40 CFR 312.21(d). Recommendations will be developed as part of the Phase I ESA scope of services. Prior to final report issuance, the client may request additional copies at a charge of$50.00 per report copy. 4 City of Waterloo IA lierracon Proposal No: CF07330 Consulting Engineers&SdenHsts August 17,2007 2. Additional Services Beyond Base ESA At the direction of the client, additional services beyond the scope of the base Phase I ESA have not been included. 3. Additional Services Not Included The following services, although not specifically required by ASTM E 1527-05, may also be performed concurrently with ESAs and may be beneficial for the evaluation of environmental conditions and/or an evaluation of specific business environmental risks at the site. At your direction, these services have not been included as part of the scope of services for this ESA. Please note that this list is not all-inclusive. If you seek additional services, please contact us for a supplemental proposal and cost estimate. • Limited Radon Records Review • Limited Wetland Review • Limited Threatened/Endangered Species Review • Limited Historic Properties/Archaeological Resources Review If the site is intended for future development, Terracon can also provide for geotechnical investigations, geologic hazards (like growth faulting), construction materials testing, construction draw reviews and scope and budget reviews services. 4. Schedule Services will be initiated upon receipt of the written notice to proceed. The final report will be submitted on or before August 27, 2007 provided your written notice to proceed is received by August 20, 2007 and site access can be obtained within one day after the notice to proceed. In order to comply with the proposed schedule, please provide the following items at the time of notification to proceed. • A signed Agreement for Services evidencing acceptance of this scope of services • The completed ASTM E 1527-05 User Questionnaire, supplied as an attachment to this proposal • Right of entry to conduct the assessment, including access to building interiors • Notification of any restrictions or special requirements (such as confidentiality, scheduling, or on-site safety requirements) regarding accessing the site • An accurate legal description and/or a diagram of the site such as a surveyor's plat map or scaled architect's drawing (if such diagrams exist) 5 City of Waterloo IA lierracon Proposal No: CF07330 August 17, 2007 • Current site owner, property manager, occupant information (including tenant list), and contact information for persons knowledgeable about the site history including current and historical use of hazardous substances and petroleum products on site (e.g., names, phone numbers, etc.) • Copies of environmental reports, permits and registrations, and geotechnical reports that were previously prepared for the site • Information relating to known or suspect environmental conditions at the site, including commonly known or reasonable ascertainable information within the local community about the site that is material to RECs in connection with the site • Information about environmental liens and activity and use limitations for the site, if any • Specialized knowledge or experience that is material to RECs in connection with the site, if any • Knowledge that the purchase price of the site is significantly less than the purchase price of comparable properties • Land title records Please note that requested regulatory files or other information may not be provided to Terracon by the issuance date of the report. Consideration of information not received by the issuance date of the report is beyond the scope of this ESA. 5. Reliance The ESA report will be prepared for the exclusive use and reliance of City of Waterloo IA. Reliance by any other party is prohibited without the written authorization of the client and Terracon. If the client is aware of additional parties that will require reliance on the ESA report, the names, addresses, and relationship of these parties should be provided for Terracon approval prior to the time of authorization to proceed. Terracon may grant reliance on the ESA report to those approved parties upon receipt of a fully executed Reliance Agreement (available upon request) and receipt of information requested in the Reliance Agreement. If, in the future, the client and Terracon consent to reliance on the ESA by a third party, Terracon may grant reliance upon receipt of a fully executed Reliance Agreement, requested information and receipt of an additional minimum fee of$250.00 per relying party. Reliance on the ESA by the client and all authorized parties will be subject to the terms, conditions, and limitations stated in the Agreement for Services, sections of this proposal incorporated therein, the Reliance Agreement, and ESA report. The limitation of liability defined in the Agreement for Services is the aggregate limit of Terracon's liability to the client and all relying parties. 6 City of Waterloo IA 1ierracon Proposal No: CF07330 �osIti tg;eef5�sC1es� August 17, 2007 Continued viability of the report is subject to ASTM E 1527-05 Sections 4.6 and 4.8. If the ESA will be used by a different user (third party) than the user for whom the ESA was originally prepared, the third party must also satisfy the user's responsibilities in Section 6 of ASTM E 1527-05. 6. Scope and Report Limitations The findings and conclusions presented in the final report will be based on the site's current utilization and the information collected as discussed in this proposal. Please note that we do not warrant database or third party information (such as from interviewees) or regulatory agency information used in the compilation of reports. Phase I ESAs, such as the one proposed for this site, are of limited scope, are noninvasive, and cannot eliminate the potential that hazardous, toxic, or petroleum substances are present or have been released at the site beyond what is identified by the limited scope of this ESA. In conducting the limited scope of services described herein, certain sources of information and public records will not be reviewed. It should be recognized that environmental concerns may be documented in public records that are not reviewed. This ESA does not include subsurface or other invasive assessments, business environmental risk evaluations, or other services not particularly identified and discussed herein. No ESA can wholly eliminate uncertainty regarding the potential for RECs. The limitations herein must be considered when the user of this report formulates opinions as to risks associated with the site. No warranties, express or implied, are intended or made. An evaluation of significant data gaps will be based on the information available at the time of report issuance, and an evaluation of information received after the report issuance date may result in an alteration of our opinions and conclusions. We have no obligation to provide information obtained or discovered by us after the date of the report, or to perform any additional services, regardless of whether the information would affect any conclusions, recommendations, or opinions in the report. This disclaimer specifically applies to any information that has not been provided by the client. 7 City of Waterloo IA lierracon Proposal No: CF07330 August 17, 2007 C. COMPENSATION BASE PHASE I ESA SERVICES -LUMP SUM (Including physical setting, historical use information, records review, and site and adjoining/surrounding property reconnaissance, as detailed in Section B. The cost to $1,850.00 contract an abstract firm to develop a chain of title or an environmental lien search is not included in this fee.) * Not included in the scope of services per the client's direction. The fee is valid for 90 days from the date of this proposal and is based on the assumption that all field services will be performed under safety Level D personal protective procedures and that only one site visit will be made by Terracon personnel. The lump sum fee is based on the assumptions and conditions provided at the time of this proposal. D. AUTHORIZATION If this scope of services meets with your approval, work may be initiated by returning an original copy of the attached Agreement for Services to our Cedar Falls, Iowa office. Project initiation may be expedited by sending a copy of the signed Agreement for Services via e- mail or facsimile. We appreciate the opportunity to provide this proposal and look forward to working with you on this project. If you have any questions or comments regarding this proposal or require additional services, please give me a call. Sincerely, Terracon Consultants, Inc. David C. Cleary Ed D. Bertch, P.G. REM Project Manager Environmental Department Manager Attachments: ASTM E 1527-05 User Questionnaire Agreement for Services 8 ASTM E 1527-05 USER QUESTIONNAIRE Page 1 of 2 Proposal No: CF07330 In order to qualify for one of the Landowner Liability Protections (LLPs) offered by the Small Business Relief and Brownfields Revitalization Act of 2001, the user must respond to the following questions. Failure to provide this information to the environmental professional may result in significant data gaps, which may limit our ability to identify recognized environmental conditions resulting in a determination that "all appropriate inquiry" is not complete. This form represents a type of interview and as such, the user has an obligation to answer all questions in good faith, to the extent of their actual knowledge. Site Name: Site Address: 1) Are you aware of any environmental cleanup liens against the site that are filed or recorded under federal, tribal, state, or local law(40 CFR 312.25)? No Yes If yes, please explain. 2) Are you aware of any activity and use limitations (AULs), such as engineering controls, land use restrictions, or institutional controls that are in place at the site and/or have been filed or recorded in a registry under federal, tribal, state, or local law(40 CFR 312.26)? No Yes If yes, please explain. 3) As the user of this ESA, do you have any specialized knowledge or experience related to the site or nearby properties? For example, are you involved in the same line of business as the current or former occupants of the site or an adjoining property so that you would have specialized knowledge of the chemicals and processes used by this type of business(40 CFR 312-28)? No Yes If yes, please explain. 4) Does the purchase price being paid for this site reasonably reflect the fair market value of the site (40 CFR 312.29)? No Yes If no, have you considered whether the lower purchase price is because contamination is known or believed to be present at the site(40 CFR 312.29)? No Yes If yes, please explain. 5) Are you aware of commonly known or reasonably ascertainable information about the site that would help the environmental professional to identify conditions indicative of releases or threatened releases (40 CFR 312.30)? No Yes If yes, please explain. 6) As the user of this ESA, based on your knowledge and experience related to the site, are there any obvious indicators that point to the presence or likely presence of contamination at the site (40 CFR 312.31)? No Yes If yes, please explain. Request for Information and Documentation In addition to the specific questions outlined above, the user is requested to provide the following information and documentation, as available. ASTM requires that this information, if available, be provided to the environmental professional prior to the site visit. Please return this form with the signed and completed Agreement for Services. ASTM E 1527-05 USER QUESTIONNAIRE Page 2 of 2 Proposal No: CF07330 Item Not Applicable, Contacts/Comments Supplied Not Available or Item Requested Not Known (See Proposal) or X, «X>> Indicate Attachment Point of Contact for Access Name/Phone: Current Site Owner Name/Phone: Current Facility Operator Name/Phone: Contacts for Prior Owners Name/Phone: Contacts for Prior Occupants Name/Phone: Access Restrictions Notification of Special Requirements Regarding Confidentiality Legal Description and Diagram/Survey of Site Chain of Title with Grantor/Grantee Summary(back to 1940 or first developed use) Reasons for Conducting ESA Helpful Documents Checklist Pursuant to ASTM E 1527-05 § 10.8, do you know whether any of the following documents exist related to the subject property and, if so,whether copies can and will be provided to the environmental professional? Check all that apply. ❑ Environmental site assessment reports ❑ Notices or other correspondence from any governmental agency relating to past or current ❑ Environmental compliance audit reports violations of environmental laws with respect to the property or relating to environmental liens ❑ encumbering the property Geotechnical studies ❑ Reports regarding hydrogeologic conditions on the El Registrations for underground injection systems property or surrounding area 0 Environmental permits/plans,solid waste permits, ElRegistrations for above or underground storage tanks hazardous waste disposal permits,wastewater permits,NPDES permits,underground injection permits,SPCC plans Name (Authorized Client Representative) Title Signature Date Please return this form with the signed and completed Agreement for Services. lierracon AGREEMENT FOR SERVICES This AGREEMENT is between City of Waterloo IA("Client")and Terracon Consultants, Inc.("Consultant")for Services to be provided by Consultant for Client on the Community National Bank Parking Lot project("Project"),as described in the Project Information section of Consultant's Proposal dated August 17,2007 ("Proposal")unless the Project is otherwise described in Exhibit A to this Agreement(which section or Exhibit is incorporated into this Agreement). 1. Scope of Services. The scope of Consultant's services is described in the Scope of Services section of the Proposal ("Services"), unless Services are otherwise described in Exhibit B to this Agreement (which section or exhibit is incorporated into this Agreement). Portions of the Services may be subcontracted. Consultant's Services do not include the investigation or detection of, nor do recommendations in Consultant's reports address the presence or prevention of biological pollutants (e.g., mold, fungi, bacteria, viruses, or their byproducts) occupant safety issues, such as vulnerability to natural disasters, terrorism, or violence. If Services include purchase of software, Client will execute a separate software license agreement. Consultant's findings, opinions,and recommendations are based solely upon data and information obtained by and furnished to Consultant at the time of the Services. 2. Acceptance. Client agrees that execution of this Agreement is a material element of the consideration Consultant requires to execute the Services,and if Services are initiated by Consultant prior to execution of this Agreement as an accommodation for Client at Client's request,both parties shall consider that commencement of Services constitutes formal acceptance of all terms and conditions of this Agreement. Additional terms and conditions may be added or changed only by written amendment to this Agreement signed by both parties. In the event Client uses a purchase order or other form to administer this Agreement, the use of such form shall be for convenience purposes only and any additional or conflicting terms it contains are stricken.This Agreement shall not be assigned by either party without prior written consent of the other party. 3. Change Orders. Client may request changes to the scope of Services by altering or adding to the Services to be performed. If Client so requests, Consultant will return to Client a statement(or supplemental proposal)of the change setting forth an adjustment to the Services and fees for the requested changes. Following Client's review, Client shall provide written acceptance. If Client does not follow these procedures,but instead directs, authorizes, or permits Consultant to perform changed or additional work, the Services are changed accordingly and Consultant will be paid for this work according to the fees stated or its current fee schedule. If project conditions change materially from those observed at the site or described to Consultant at the time of proposal,Consultant is entitled to a change order equitably adjusting its Services and fee. 4. Compensation and Terms of Payment.Client shall pay compensation for the Services performed at the fees stated in the Compensation section of the Proposal unless fees are otherwise stated in Exhibit C to this Agreement (which section or Exhibit is incorporated into this Agreement). If not stated in either, fees will be according to Consultant's current fee schedule. Fee schedules are valid for the calendar year in which they are issued.Consultant may invoice Client at least monthly and payment is due upon receipt of invoice.Client shall notify Consultant in writing, at the address below, within 15 days of the date of the invoice if Client objects to any portion of the charges on the invoice, and shall promptly pay the undisputed portion.Client shall pay a finance fee of 1.5%per month,but not exceeding the maximum rate allowed by law,for all unpaid amounts 30 days or older. Client agrees to pay all collection-related costs that Consultant incurs, including attorney fees.Consultant may suspend Services for lack of timely payment. 5. Third Party Reliance.This Agreement and the Services provided are for Consultant and Client's sole benefit and exclusive use with no third party beneficiaries intended. Reliance upon the Services and any work product is limited to Client, and is not intended for third parties. For a limited time period not to exceed three months from the date of the report, Consultant will issue additional reports to others agreed upon with Client, however Client understands that such reliance will not be granted until those parties sign and return Consultant's reliance agreement and Consultant receives the agreed-upon reliance fee. 6. LIMITATION OF LIABILITY. CLIENT AND CONSULTANT HAVE EVALUATED THE RISKS AND REWARDS ASSOCIATED WITH THIS PROJECT, INCLUDING CONSULTANT'S FEE RELATIVE TO THE RISKS ASSUMED, AND AGREE TO ALLOCATE CERTAIN OF THE RISKS SO, TO THE FULLEST EXTENT PERMITTED BY LAW, THE TOTAL AGGREGATE LIABILITY OF CONSULTANT (AND ITS RELATED CORPORATIONS AND EMPLOYEES)TO CLIENT AND THIRD PARTIES GRANTED RELIANCE IS LIMITED TO THE GREATER OF $10,000 OR ITS FEE FOR ANY AND ALL INJURIES, DAMAGES, CLAIMS, LOSSES, OR EXPENSES (INCLUDING ATTORNEY AND EXPERT FEES)ARISING OUT OF CONSULTANT'S SERVICES OR THIS AGREEMENT REGARDLESS OF CAUSE(S)OR THE THEORY OF LIABILITY,INCLUDING NEGLIGENCE,INDEMNITY,OR OTHER RECOVERY. 7. Indemnity/Statute of Limitations. Consultant and Client shall defend, indemnify, and hold harmless the other, their agents, and employees, from and against legal liability for all claims, losses, damages, and expenses to the extent such claims, losses, damages, or expenses are caused by their negligent acts, errors, or omissions. In the event such claims, losses, damages, or expenses are caused by the joint or concurrent negligence of Consultant and Client,they shall be borne by each party in proportion to its own negligence under comparative fault principles. Causes of action arising out of Consultant's services or this Agreement regardless of cause(s)or the theory of liability, including negligence,indemnity or other recovery shall be deemed to have accrued and the applicable statute of limitations shall commence to run not later than the date of Consultant's substantial completion of services on the project. 8. Warranty. Consultant will perform the Services in a manner consistent with that level of care and skill ordinarily exercised by members of the profession currently practicing under similar conditions in the same locale. CONSULTANT MAKES NO WARRANTIES OR GUARANTEES, EXPRESS OR IMPLIED, RELATING TO CONSULTANT'S SERVICES AND CONSULTANT DISCLAIMS ANY IMPLIED WARRANTIES OR WARRANTIES IMPOSED BY LAW,INCLUDING WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. 9. Insurance. Consultant represents that it now carries, and will continue to carry: (i) workers' compensation insurance in accordance with the laws of the states having jurisdiction over Consultant's employees who are engaged in the Services, and employer's liability insurance ($1,000,000);(ii)commercial general liability insurance($1,000,000 occ/$2,000,000 agg); (iii)automobile liability insurance($1,000,000 B.I.and P.D.combined single limit);excess liability($5,000,000 occ/agg);and(iv)professional liability insurance($1,000,000 claim/agg).Certificates of insurance will be provided upon request. Client and Consultant shall waive subrogation against the other party on all general liability and property coverage. Agreement Reference Number(Terracon Proposal or Project Number):CF07330 Page 1 of 2 Rev. 1-06 lierracon 10. CONSEQUENTIAL DAMAGES. NEITHER PARTY SHALL BE LIABLE TO THE OTHER FOR LOSS OF PROFITS OR REVENUE; LOSS OF USE OR OPPORTUNITY; LOSS OF GOOD WILL; COST OF SUBSTITUTE FACILITIES, GOODS, OR SERVICES; COST OF CAPITAL; OR FOR ANY SPECIAL,CONSEQUENTIAL,INDIRECT,PUNITIVE,OR EXEMPLARY DAMAGES. 11. Dispute Resolution. Client shall not be entitled to assert a Claim against Consultant based on any theory of professional negligence unless and until Client has obtained the written opinion from a registered, independent, and reputable engineer, architect, or geologist that Consultant has violated the standard of care applicable to Consultant's performance of the Services. Client shall provide this opinion to Consultant and the parties shall endeavor to resolve the dispute within 30 days,after which Client may pursue its remedies at law.This Agreement shall be governed by and construed according to Kansas law. 12. Subsurface Explorations. Subsurface conditions throughout the site may vary from those depicted on logs of discrete borings, test pits, or other exploratory services. Client understands Consultant's layout of boring and test locations is approximate and that Consultant may deviate a reasonable distance from those locations. Consultant will take reasonable precautions to reduce damage to the site when performing Services; however, Client accepts that invasive services such as drilling or sampling may damage or alter the site. Site restoration is not provided unless specifically included in the Services. 13. Testing and Observations. Client understands that testing and observation are discrete sampling procedures, and that such procedures indicate conditions only at the depths, locations, and times the procedures were performed. Consultant will provide test results and opinions based on tests and field observations only for the work tested. Client understands that testing and observation are not continuous or exhaustive, and are conducted to reduce-not eliminate-project risk.Client agrees to the level or amount of testing performed and the associated risk.Client is responsible (even if delegated to contractor)for notifying and scheduling Consultant so Consultant can perform these Services. Consultant shall not be responsible for the quality and completeness of contractor's work or their adherence to the project documents, and Consultant's performance of testing and observation services shall not relieve contractor in any way from its responsibility for defects discovered in its work,or create a warranty or guarantee. Consultant will not supervise or direct the work performed by contractor or its subcontractors and is not responsible for their means and methods. 14. Sample Disposition, Affected Materials, and Indemnity. Samples are consumed in testing or disposed of upon completion of tests (unless stated otherwise in the Services). Client shall furnish or cause to be furnished to Consultant all documents and information known or available to Client that relate to the identity, location, quantity, nature, or characteristic of any hazardous waste, toxic, radioactive, or contaminated materials ("Affected Materials") at or near the site, and shall immediately transmit new, updated, or revised information as it becomes available. Client agrees that Consultant is not responsible for the disposition of Affected Material unless specifically provided in the Services,and that Client is responsible for directing such disposition. In the event that test samples obtained during the performance of Services (i) contain substances hazardous to health, safety, or the environment, or (ii) equipment used during the Services cannot reasonably be decontaminated,Client shall sign documentation(if necessary)required to ensure the equipment and/or samples are transported and disposed of properly, and agrees to pay Consultant the fair market value of this equipment and reasonable disposal costs. In no event shall Consultant be required to sign a hazardous waste manifest or take title to any Affected Materials. Client shall have the obligation to make all spill or release notifications to appropriate governmental agencies. The Client agrees that Consultant neither created nor contributed to the creation or existence of any Affected Materials conditions at the site.Accordingly,Client waives any claim against Consultant and agrees to indemnify and save Consultant,its agents, employees, and related companies harmless from any claim, liability or defense cost, including attorney and expert fees, for injury or loss sustained by any party from such exposures allegedly arising out of Consultant's non-negligent performance of services hereunder,or for any claims against Consultant as a generator,disposer,or arranger of Affected Materials under federal,state,or local law or ordinance. 15. Ownership of Documents. Work product, such as reports, logs, data, notes, or calculations, prepared by Consultant shall remain Consultant's property. Proprietary concepts, systems,and ideas developed during performance of the Services shall remain the sole property of Consultant.Files shall be maintained in general accordance with Consultant's document retention policies and practices. 16. Utilities. Client shall provide the location and/or arrange for the marking of private utilities and subterranean structures. Consultant shall take reasonable precautions to avoid damage or injury to subterranean structures or utilities. Consultant shall not be responsible for damage to subterranean structures or utilities that are not called to Consultant's attention, are not correctly marked, including by a utility locate service, or are incorrectly shown on the plans furnished to Consultant. 17. Site Access and Safety. Client shall secure all necessary site related approvals, permits, licenses, and consents necessary to commence and complete the Services and will execute any necessary site access agreement. Consultant will be responsible for supervision and site safety measures for its own employees, but shall not be responsible for the supervision or health and safety precautions for any other parties,including Client,Client's contractors,subcontractors,or other parties present at the site. 18. Termination. Either party may terminate this Agreement or the Services upon written notice to the other. In such case,Consultant shall be paid costs incurred and fees earned to the date of termination plus reasonable costs of closing the project. Consultant: Terrac n Consultants, Inc. Client: City of erloo IA By: Date: 08/17/2007 By: Date: s`r'/a,0/D7 Name/Title: David C.Cleary/Project Manager Name/ itle: )' Address 6612 Chancellor Drive,Ste. 102 AddressJ �L�v 715 Mulberry St Cedar Falls, Iowa 50613-5644 Waterloo, Iowa 50703 Phone: 319-277-4016 Fax: 319-277-4320 Phone: 319-291-4366 Fax: 319-291-4262 Agreement Reference Number(Terracon Proposal or Project Number):CF07330 Page 2 of 2 Rev. 1-06