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HomeMy WebLinkAboutEnvironmental Forensic Investigations - Underground Storage Tank Removal E p INV,R0 re siCs MASTER SERVICES AGREEMENT This Agreement("Agreement"), with an effective date of August 10,2005, is made by and between Environmental Forensic Investigations,Inc., an Indiana Corporation, ("Consultant") and the City of Carmel located Carmel, Indiana 46032 ("Client"). In consideration of the mutual covenants and promises contained herein,the parties agree as follows: 1 SCOPE OF SERVICES 1.1 The services to be performed by Consultant under this Agreement("Services") shall be set forth in individual task orders using the general format set forth in Attachment A ("Task Order"), attached hereto and incorporated herein by reference. 2 INDEPENDENT CONTRACTOR 2.1 Except as may otherwise be noted herein; Consultant shall serve as Client's independent consultant and shall provide those services indicated herein. Notwithstanding the provisions of Article 22.2, Consultant may retain subcontractors to perform services Consultant customarily has performed by subcontractors. Should Consultant determine it appropriate or necessary to rely on a subcontractor when it is not customary to do so, Consultant shall obtain prior written approval or subsequent written confirmation from Client. 3 TASK ORDER PROCESS 3.1 Upon the request for Services from the Client, the Consultant shall prepare a Task Order containing an identification of the task("Task Order or Task"), description of the requested Services,compensation to be paid to Consultant for the performance of the Services("Compensation"), and a proposed schedule for the performance ("Schedule") of the Services. 3.2 Upon mutual agreement of the parties, the Task Order shall be finalized and executed by the parties. The effective date of the Task Order will be as set forth in the Individual Task Order. 3.3 Changes to the Task Order shall be made in accordance with Article 5. 4 PAYMENT FOR SERVICES 4.1 Client recognizes that timely payment of Consultant's invoices is a material part of the consideration Consultant requires to perform the services covered in this Agreement. 4.2 The Consultant shall submit invoices for payment on a monthly basis. Client acknowledges that price changes may occur and that the Consultant will notify Client in advance of such changes, implementation of any price changes requires prior approval by the Client. Consultant has the sole responsibility for notifying the Client of any and all changes in cost associated with the work conducted under each Task Order. Client shall 1 of 13 Services Agreement-City of Carmel 4,ENU1RC? -ire sits pay Consultant for services rendered in U.S. funds drawn upon U.S.banks, in accordance with the rates and charges detailed in the Task Order. 4.3 If Client objects to any portion of an invoice,Client shall so notify Consultant within fifteen(15)calendar days from the date of receipt of the invoice, identify the cause of the objection, and pay when due that portion of the invoice not in dispute. Client has fifteen (15)calendar days from receipt of the invoice to dispute any charges contained therein after which time Client's right is waived and payment will be made in full. Disputes shall be resolved in accordance with the procedures set forth in Article 19, Dispute Resolution, of this Agreement. 4.4 Payment of invoices is in no case subject to unilateral discounting or set-offs by Client and payment of non-disputed charges are due regardless of suspension or termination of this Agreement by either party. 4.5 Client shall pay an additional charge of one-and-one-half(1.5)percent(or the maximum allowable by law,whichever is lower) of the invoiced amount per month for any payment received by Consultant more than sixty(60)calendar days from the date of the invoice, excepting any portion of the invoiced amount in dispute and resolved in favor of the Client. Disputed amounts shall not be subject to these charges until such time as the disputed amount is resolved, at which time the sixty(60)day period referred to in this Article 4.5 will begin to run. Payment thereafter shall first be applied to accrued interest and then to the principal unpaid amount. 4.6 If Client fails to pay undisputed invoiced amounts within seventy-five(75) calendar days of the date of the invoice,as set forth in this Article 4, or otherwise is in breach of this Agreement,Consultant may ten(10)business days after providing written notice, without waiving any other claim against Client and without incurring any liability to Client, suspend or terminate this Agreement. 5 CHANGE ORDERS 5.1 Client may, from time to time, order modifications or changes in the Scope of Services ("Changes")by written change order in the general format of Attachment B ("Change Order"), incorporated herein by reference. In addition,Consultant, based upon material changes to the Services or conditions or circumstances unforeseen at the time the Task Order was developed, may submit Change Orders. Change Orders shall consist of additions to, deletions from, or other revisions to the Services and/or Compensation and/or Project Schedule. 5.2 Failure of the parties to agree on whether the Change Order requires a change to the Compensation or if a Change Order should result in a change in the Schedule shall be subject to the Disputes provisions of this Agreement. 2 of 13 Services Agreement-City of Cannel ENMIR t. -'‘rensics 6 FORCE MAJEURE 6.1 Neither party shall be responsible for a delay or default in its performance under this Agreement if such delay is caused by a force majeure event. To the extent that the Services are delayed by a force majeure event, Consultant will be entitled to an equitable adjustment to the Task Schedule and Compensation as a result of any such delay. For purposes of this Agreement, a"force majeure" event is any delay that results without fault or negligence of either party and which is due to causes beyond the party's control, including without limitation, acts of God or public enemy; acts of terrorism; fires; floods; strikes; embargoes; unusually severe weather; market failures; and delays of subcontractors due to such causes. 7 UNANTICIPATED RISKS 7.1 Discovery of Unanticipated Risks. If during the course of Consultant's performance under this Agreement,unanticipated risks are discovered at any of the locations involved in accomplishing the Services(collectively the"Project Site")that had not been identified in the documentation provided to Consultant by Client or were otherwise contemplated or known to Consultant during the development of the particular Task Order, then the Scope of Services, Schedule, and Compensation and the applicable work activities may be modified or terminated. Unanticipated risks include,but are not limited to, unknown and unanticipated environmental conditions or materials or substances(including hazardous materials or substances) found to be present at the Project Site. 7.2 Suspending or Terminating Services based on Unanticipated Risks. In the event that Services are suspended or terminated because of the discovery of unanticipated risks, it is agreed that the Consultant shall be paid for the total undisputed charges for labor performed,reimbursable charges, and all other related amounts owed which were incurred up to the date of suspension or termination of the work activities,including but not limited to all necessary additional labor or reimbursable charges incurred as a result of the discovery of unanticipated risks and demobilization expenses. 7.3 Immediate Measures upon Discovery of Unanticipated Risks. Client acknowledges and agrees that the discovery of unanticipated risks may make it necessary for the Consultant to take immediate measures to protect health, safety, and welfare and the- environment prior to notifying Client of the taking of such measures. The Consultant agrees to notify Client as soon as possible should unanticipated risks or suspected unanticipated risks be encountered. Client hereby authorizes the Consultant to take immediate measures that in the Consultant's sole judgment are necessary to preserve and protect the health, safety, and welfare of the Project Site,the environment, Consultant's personnel,other on-site personnel, and the public. Client agrees to compensate the Consultant for all additional services and costs for these measures. 7.4 Indemnification from Unanticipated Risks. Client shall,to the fullest extent permitted by law, waive any claim against Consultant, and indemnify, defend, and hold Consultant harmless from any claim or liability for injury or loss allegedly arising from Consultant's discovery of unanticipated hazardous materials or suspected hazardous materials,or the 3 of 13 Services Agreement-City of Carmel EOVIR� ; ‘rensics presence of these materials at the site. Client shall compensate Consultant for any time spent or expenses incurred by Consultant in defense of any such claim. 7.5 Aquifer Cross-Contamination. Sampling conducted as a part of this Agreement may result in unavoidable cross-contamination of certain subsurface areas, as when a probe or boring device moves through a contaminated zone and links it to an aquifer,underground stream, or other hydrous body not previously contaminated. Because Consultant is powerless to totally eliminate this risk despite use of due care, and because sampling is an essential element of Consultant's Services, Client shall to the fullest extent permitted by law, waive any claim against Consultant, and indemnify, defend, and hold Consultant harmless from any claim or liability for injury or loss arising from cross-contamination allegedly caused by Consultant's sampling, unless caused by Consultant's sole negligence. 8 DISPOSAL OF SAMPLES &INVESTIGATION WASTES 8.1 All soil,rock,water,and other material samples and associated Investigation Derived Residual Wastes (IDRW)collected from the Project Site as a part of this Agreement are deemed Client's property at all times. 8.2 Uncontaminated Samples. All uncontaminated samples will be appropriately discarded thirty(30)calendar days after issuance to Client of the document transmitting the data obtained from the samples,unless Client advises the Consultant otherwise. Upon request,the Consultant will deliver samples to the Client at the Client's expense. 8.3 Contaminated or Potentially Contaminated Samples. If in the Consultant's opinion any of the samples are or may be affected by substances or constituents hazardous or detrimental to human health,safety or the environment as defined by federal,state or local statutes,regulations,or ordinances("Regulated Substances"),Consultant shall analyze such samples and,if necessary,package such samples in accordance with applicable law. Client shall arrange for and shall be responsible for transport and lawful disposal procedures for such samples (i.e.,remove the samples from Consultant's custody and transport them to a disposal site). 8.4 Investigation Derived Residual Waste. All material generated during the performance of any and all Services under this Agreement, including,but not limited to, waste samples,purge water, and cuttings, which contain Regulated Substances shall be properly stored on-site until analyzed and arrangements are made for proper disposal. Client shall arrange for and shall be responsible for transport and lawful disposal procedures for such samples. 8.5 Consultant shall not under this Agreement arrange for or otherwise dispose of substances affected by Regulated Substances, unless expressly provided for in the Consultant's Scope of Work. Consultant will at Client's request help Client identify appropriate alternatives for off-site treatment, storage, or disposal of such substances, but Consultant shall not make any independent determination about selection of a treatment, storage,or disposal facility,nor will Consultant subcontract such activities through transporters. Client shall sign all manifests for the disposal of substances affected by Regulated 4 of 13 Services Agreement-City of Cannel ENV RO : t,renSICS � b� Substances. However, if Client directs Consultant to sign such manifests and/or hire a contractor to transport,treat, or dispose of the Regulated Substances, Consultant shall do so only as Client's agent(notwithstanding any other provision in this Agreement to the contrary) so that Consultant shall not be considered a generator,transporter,or disposer of materials affected by Regulated Substances. 8.6 Any equipment contaminated in performing Services under this Agreement that cannot be reasonably decontaminated by Consultant shall become the responsibility of the Client to decontaminate,or become the property and responsibility of Client. All such equipment shall be delivered to Client and disposed of in a manner similar to that indicated for hazardous materials. 8.7 Indemnification from Disposal of Materials contaminated with Regulated Substances. Because the involvement with Client's contaminated samples can expose Consultant to severe risks,Client shall,to the fullest extent permitted under law,waive any claim against Consultant, and indemnify,defend, and hold Consultant harmless from any claim or liability for injury or loss from any claim or liability for injury or loss allegedly arising from Consultant's containing, labeling,transporting,testing, storing,or other handling of Client's contaminated samples, unless expressly provided for in the Consultant's Scope of Work and any claim or liability for injury or loss from any claim or liability for injury or loss is caused by Consultant's negligence. Client shall also compensate Consultant for any time spent or expenses incurred by Consultant in defense of such claims. 9 RIGHT OF ENTRY 9.1 Right of Entry. Client shall arrange to provide for Consultant's Right-of-Access to the Project Site from time to time as needed by the Consultant in order to perform the requested work. The Consultant will use reasonable care to minimize damage to the Project Site. However,Client acknowledges that the use of exploration equipment,the process of mobilizing and demobilizing such equipment,as well as performing under this Agreement may unavoidably cause some property damage for which the restoration, remediation,or correction is not part of this Agreement,unless expressly provided for in the Consultant's Scope of Work. If the Consultant is asked to restore, remediate, or correct the property,the Consultant will execute a Change Order as provided for in Article 5. Client shall,to the fullest extent peiuiitted by law, waive any claim against Consultant, and indemnify, defend, and hold Consultant harmless from any claim or liability for injury or loss allegedly arising from Consultant's exploratory activities, except for damages resulting from Consultant's negligence. Client shall compensate Consultant for any time spent or expenses incurred by Consultant in defense of any such claim. 10 BURIED UTILITIES 10.1 Client Supplied Information. Client shall arrange to provide Consultant with information identifying the type and location of utility lines and other man-made objects beneath the surface of the Project Site. The Consultant will take reasonable precautions to avoid damaging these man-made objects by preparing,prior to penetrating the Project Site's surface, a subsurface sketch indicating the locations intended for penetrations and, 5 of 13 Services Agreement-City of Cannel liEN VGIR® fbre sics in accordance with information provided to Consultant,the locations of buried utility lines and other man-made objects. Client will review the sketch and approve the intended penetration locations before penetrations are made. 10.2 Consultant Research. If included in Consultant's Scope of Work, Consultant will perform research to locate utility lines and other man-made objects that may exist beneath the Project Site's surface. Consultant may subcontract this research to a firm specializing in the location of underground utilities and man-made objects. Client recognizes that, despite due care, Consultant may be unable to identify the location of all subsurface utility lines and man-made objects, and information obtained by Consultant may contain errors or be incomplete, especially related to underground utility lines or man-made objects on private property. Consultant will prepare a sketch indicating the locations intended for penetrations and, in accordance with information provided to Consultant, the locations of buried utility lines and other man-made objects. 10.3 Client shall,to the fullest extent permitted by law,waive any claim against Consultant and indemnify, defend, and hold Consultant harmless from any claim or liability for injury or loss allegedly arising from damage to or contact with buried utility lines or other buried man-made objects that were not called to Consultant's attention or were not properly located on drawings furnished to Consultant. Client shall compensate Consultant for any time spent or expenses incurred by Consultant in defense of any such claim. 11 CONFIDENTIALITY 11.1 All information and data disclosed by Client or otherwise developed or obtained under this Agreement shall be deemed to be proprietary and confidential information ("Confidential Information"). 11.2 Subject to any obligations Consultant may have under any applicable law or regulation, Consultant agrees to release information relating to this Agreement, as necessary to perform its obligations under this Agreement,only to its' employees and subcontractors in performance under this Agreement,to Consultant's or Client's authorized representatives, and to persons designated in writing by Client to receive such information. 11.3 Consultant's obligations under this Article shall not apply to Confidential Information that is: (i)in the public domain without breach of this Agreement; (ii)developed independently by Consultant; (iii)received by Consultant on a non-confidential basis from others who had a right to disclosure such Confidential Information; or(iv)is required to be disclosed by law or applicable court order,but only after actual prior written notice has been received by the Client and Client has had a reasonable opportunity to protect disclosure of such Confidential Information. 12 RIGHTS IN DATA 12.1 All work products provided by Consultant to Client shall be deemed to be work-for-hire and shall belong to the Client. Methodologies and other instruments of service or processes used to prepare the work products shall remain the property of Consultant. 6 of 13 Services Agreement-City of Cannel I p ERVIRao.pisrensics Any modification or reuse of the work product without written verification or adaptation by Consultant for the specific purpose intended will be at Client's sole risk and without liability or legal exposure to Consultant or to Consultant's subcontractors. 13 INSURANCE 13.1 Consultant shall maintain the following insurance coverage's while providing services under this Agreement: Type Amount Workers Compensation Statutory Employers' Liability $1,000,000 Commercial General Liability $1,000,000 Automobile Liability $1,000,000 Professional Liability $1,000,000 13.2 If requested, Consultant will furnish Client with certificates of insurance verifying the above referenced coverage's and stating that the insurance carrier will provide Client with thirty(30) days prior written notice of insurance cancellation or reduction below the listed premiums. If requested, Consultant shall list Client as an additional insured for the Commercial General Liability and the Automobile Liability insurances. 14 INDEMNITY 14.1 The Consultant agrees to indemnify Client, its officers,directors,and employees from loss,damage,or expense from bodily injury or property damage,to the extent caused by the negligence or willful misconduct of Consultant in performance the Services. This obligation to indemnify Client shall not impose any obligation on Consultant that exceeds the Limitation of Liability provisions in Article 16. 14.2 Client hereby understands and agrees that Consultant has not created nor contributed to the creation or existence of any Regulated Substances at or related to the Project Site or in connection with or related to this Agreement. The Compensation to be paid Consultant for the Task Order, is in no way commensurate with, and has not been calculated with reference to, the potential risk of injury or loss which may be caused by the exposure of persons or property to such Regulated Substances. Therefore,to the fullest extent permitted by law,Client agrees to defend,indemnify, and hold Consultant, its officers,directors, employees, and consultants,harmless from and against all claims, damages,and expenses,whether direct or indirect,or consequential, including but not limited to attorney's fees and court costs, arising out of,or resulting from the threatened or actual release of Regulated Substances,except to the extent that such a release is caused by the negligence or willful misconduct of Consultant. Nothing contained in this Agreement shall be construed or interpreted as requiring Consultant to assume the status 7 of 13 Services Agreement-City of Carmel vgpoly R' ren tics of generator, arranger, transporter or as a storage, treatment, or disposal facility as those terms appear within applicable law. 15 NO SPECIAL OR CONSEQUENTIAL DAMAGES 15.1 Notwithstanding any other provision of this Agreement,in no event shall Client be liable to Consultant and in no event shall Consultant be liable to Client for punitive, indirect, or consequential damages (including but not limited to lost profits or interruption of business)incurred by either due to the fault of the other,regardless of the nature of this fault or whether it was committed by the Client or the Consultant,their employees, agents, or subcontractors; or whether such liability arises in breach of contract, breach of warranty, or any other cause or causes whatsoever. 16 LIMITATION OF LIABILITY 16.1 IN RECOGNITION OF THE RELATIVE RISKS AND BENEFITS OF THE PROJECT TO BOTH THE CLIENT AND THE CONSULTANT,CLIENT HEREBY AGREES THAT,TO THE FULLEST EXTENT PERMITTED BY LAW,CONSULTANT'S TOTAL AGGREGATE LIABILITY FOR PERFORMING UNDER THIS AGREEMENT AND FOR ANY AND ALL INJURIES,CLAIMS, LOSSES, EXPENSES, OR DAMAGES WHATSOEVER, INCLUDING WITHOUT LIMITATION,ATTORNEYS FEES AND COSTS, ARISING OUT OF OR IN ANY WAY RELATING TO THE SERVICES COVERED BY THIS AGREEMENT FROM ANY CAUSE OR CAUSES INCLUDING BUT NOT LIMITED TO CONSULTANT'S NEGLIGENCE,ERRORS, OMISSIONS, STRICT LIABILITY,BREACH OF CONTRACT, OR BREACH OF WARRANTY SHALL NOT EXCEED THE GREATER OF THE TOTAL FEE EARNED OR THE LIMITATION OF INSURANCE PROCEEDS. UNDER NO CIRCUMSTANCE SHALL CONSULTANT HAVE ANY LIABILITY TO CLIENT AFTER ONE(1)CALENDAR YEAR HAS PASSED FROM THE COMPLETION OF THE TASK ORDER BY CONSULTANT. 16.2 BY ENTERING INTO THIS AGREEMENT,THE PARTIES ACKNOWLEDGE THAT THIS LIMITATION OF LIABILITY CLAUSE HAS BEEN REVIEWED, UNDERSTOOD, IS A MATERIAL PART OF THIS AGREEMENT,AND EACH PARTY HAS HAD THE OPPORTUNITY TO SEEK LEGAL ADVICE REGARDING THIS PROVISION. 17 SUSPENSION OF SERVICES 17.1 Client may, at any time, with or without cause, suspend all or any portion of the Services for a period of up to ninety(90)days("Suspended Services"). Consultant shall immediately stop the performance of the Suspended Services,until such time as Client issues direction to Consultant to resume the Suspended Services. Consultant shall take such action as is reasonably necessary to protect the Suspended Services and take such additional action as directed by Client. If such suspension causes an increase in Consultant's cost or a delay in the performance of the Services,then an equitable adjustment shall be made to the Compensation and Schedule in accordance with the Change Order procedures. 8 of 13 Services Agreement-City of Cannel 18 TERMINATION OF SERVICES 18.1 All or part of this Agreement may be terminated by Client for its convenience by providing ten(10)days written notice to Consultant. In such event, Consultant will be entitled to Compensation for Services performed and costs incurred up to the date of termination, including demobilization expenses. 18.2 All or part of this Agreement maybe terminated by Consultant for Client's breach of any of the terms of this Agreement. In such event, Consultant will be entitled to Compensation for Services performed and costs incurred up to the date of termination, including demobilization expenses. 19 DISPUTE RESOLUTION 19.1 Consultant and Client agree to resolve any dispute arising under this Agreement or related to any compliance with this Agreement, including without limitation any claims for breach of this Agreement(hereafter"Breach"),expeditiously and cost effectively in accordance with the provisions of this Article 19. 19.2 Notice and Negotiation. Consultant or Client shall promptly provide written notice to the other of any alleged Breach arising under this Agreement("Notice of Breach"). Consultant and Client shall negotiate in good faith to attempt to reach a resolution of the Breach within thirty(30)calendar days after the receipt of the Notice of Breach. If at the end of such thirty(30)calendar day period, the Breach has not been resolved to the satisfaction of Consultant or Client,then either party may request non-binding mediation (hereinafter"Mediation")of the Breach pursuant to this Article 19. 19.3 Mediation. Unless otherwise agreed in writing by Consultant and Client the Mediation will take place within thirty (30)calendar days after the request for mediation and such proceedings shall be held before a third party neutral. No resolution of the Breach resulting from Mediation shall be binding unless accepted in writing by both Consultant and Client. Unless otherwise agreed in writing by Consultant and Client at the Mediation,the costs of the Mediation shall be borne equally by Consultant and Client and each shall bear their own attorneys' fees and costs. 19.4 Arbitration. If the Breach is not resolved by Mediation, then matter shall be submitted to binding non-appealable arbitration to a single arbitrator(hereinafter"Arbitration"). Unless otherwise agreed in writing by the Consultant and Client the Arbitration will take place within sixty(60) calendar days after the failed Mediation. Unless otherwise agreed in writing before commencement of the Arbitration,the Arbitration shall be conducted pursuant to rules and procedures,which the arbitrator shall determine on a case-by-case basis. Unless otherwise ordered by the arbitrator,the costs of the Arbitration shall be borne by the party against whom the award is made. The prevailing party shall be entitled to its reasonable attorneys' fees. 19.5 Enforceability. The provisions of Section 19.4 are an agreement to arbitrate, and judgment on the award may be entered in any court having jurisdiction. This agreement to arbitrate is specifically enforceable under sections 1281.9 and 1282-1284.2 of the 9 of 13 Services Agreement-City of Carmel - {; ' s* rP E=NUdiR`® .r nsicS California Code of Civil Procedure. The decision of the arbitrator pursuant to Section 19.4 shall be final and not subject to judicial review, except as provided by section 1286.6 of the California Code of Civil Procedure. 19.6 Confidentiality. Consultant and Client agree that any negotiations,Mediation or Arbitration conducted under this Agreement is a confidential settlement negotiation and that by engaging in such proceedings Consultant and Client are doing so in accordance with the protection of the settlement privilege. Consultant and Client agree that any Mediation or Arbitration to enforce this Agreement or for a Breach of the Agreement are being conducted in accordance with the protection of the settlement privilege. All aspects of any such proceedings (including but not limited to all statements, testimony, submissions, and written materials of, or submitted on behalf of, any of the parties or a mediator or an arbitrator) are privileged and confidential and shall not be disclosed to any other person, except for their respective representatives, counsel and insurance carriers. Consultant and Client further agree that the provisions of Section 1152.5 of the California Evidence Code shall apply to any such Mediation or Arbitration to enforce this Agreement or for Breach of the Agreement in which they participate,provided,however, that the terms and details of such proceedings may be disclosed as necessary to enforce any agreement reached in those proceedings or as ordered by a court or other tribunal of competent jurisdiction. 20 NOTICE 20.1 Any notice or communication required or permitted by this Agreement shall be deemed sufficiently given if in writing and when delivered personally or by facsimile or upon receipt of registered or certified mail,postage prepaid with the U.S.Postal Service, or when delivered by an overnight courier service, with signature required, and addressed as follows: Client City of Cannel One Civic Square Cannel, Indiana 46032 Fax: (317)571-2492 Attention: Les Olds Consultant Environmental Forensic Investigations,Inc. 1060 North Capitol Avenue Suite E-230 Indianapolis,Indiana 46204 Fax: (317)972-7875 Attention: Stephen R. Henshaw or to such other address as the party to whom notice is given has furnished to the other party in the manner provided above. 10 of 13 Services Agreement-City of Carmel ENV ROO tyre sits 21 SURVIVAL OF CONTRACT TERMINATION 21.1 The Articles relating to Indemnification and Limitation of Liability shall survive the completion of Services,payment in full of the Compensation, and termination of this Agreement. 22 MISCELLANEOUS 22.1 Governing Law. The validity, construction, and performance of this Agreement and all disputes between the parties arising out of this Agreement or as to any matters related to but not covered by this Agreement shall be governed by the laws, without regard to the laws as to choice or conflict of laws, of the State of California. 22.2 Assignment. Consultant may not assign this Agreement nor any rights or obligations herein without the prior written consent of Client with the exception of assignments or subcontracting to affiliate or subsidiary companies. In the event this Agreement is assigned or subcontracted by Consultant,Consultant shall remain responsible to Client for the proper performance of Consultant's obligations under this Agreement. 22.3 Modification and Waiver. This Agreement may be amended only in writing executed by each of the parties. Any party may waive any provision of this Agreement to the extent such provision is for the benefit of such waiving party. No action taken pursuant to this Agreement shall be deemed to constitute a waiver by that party of its or the other party's compliance with any representations or warranties or with any other provision of this Agreement. No waiver by any party of a breach of any provision of this Agreement shall be construed as a waiver of any subsequent or different breach, and no forbearance by a party to seek a remedy for noncompliance or breach by another party shall be construed as a waiver of any right or remedy with respect to such noncompliance or breach. 22.4 Binding Effect. The provisions of this Agreement shall bind and inure to the benefit of the parties and their respective successors and permitted assigns. 22.5 Parties in Interest. Nothing in this Agreement, expressed or implied,is intended to confer on any person or entity other than the parties any right or remedy under or by reason of this Agreement. 22.6 Severability. The invalidity or unenforceability of any particular provision of this Agreement shall not affect the other provisions, and this Agreement shall be construed in all respects as if any invalid or unenforceable provision were omitted. 22.7 Authority. Each party to this Agreement represents that the person executing this Agreement has full authority to do so and that Client and the Consultant are the only parties to this Agreement. 22.8 Counterparts. This Agreement may be executed in one or more counterparts, each of which shall be deemed an original,but all of which together shall constitute a single agreement. 11 of 13 Services Agreement-City of Carmel /i 22.9 Agreement Development. All provisions of this Agreement have been subject to full and careful review by and negotiation between Consultant and Client. Each party has availed itself of such legal advice and counsel as it,respectively,has deemed appropriate. The parties hereto agree that neither one of them shall be deemed to be the drafter or author of this Agreement,and in the event this Agreement is subject to interpretation or construction by a court of law or panel of arbitration, such court or panel shall not construe this Agreement or any portion hereof against either party as the drafter of this Agreement. 22.10 Entire Agreement. This Agreement embodies the entire agreement and understanding between the parties pertaining to the subject matter of this Agreement, and supersedes all prior agreements,understandings,negotiations, representations and discussions,whether verbal or written, of the parties,pertaining to that subject matter. [Balance of Page Left Blank Intentionally] 12 of 13 Services Agreement-City of Carmel §_na Q , rens cs SIGNATURE PAGE FOR MASER SERVICES AGREEMENT DATED August 10,2005 CLIENT City of Carmel Signa r LL . ecvs Name(Printed or T, .ed) 6 ir obe Date CONSULTANT Environmental Forensic Investigations,Inc. 1. /44-"0"4"— Stephe '.Henshaw Chief Executive Officer Date 13 of 13 Services Agreement-City of Carmel ATTACHMENT A FORM FOR TASK ORDER frejlMitY ATTACHMENT A FORM FOR TASK ORDER Task Order No. Project Number: Effective Date: Environmental Forensic Investigations Inc. ("Consultant") agrees to perform for the City of Carmel ("Client")the Services described below. The Services shall be performed in accordance with the provisions of the Master Services Agreement("Agreement") dated August 10, 2005,between Client and Consultant. The following Attachments constitute the basis for the Task Order, including the scope of work,project schedule, and compensation. All of these Attachments are incorporated herein by reference. Start Date: Scope of Work: Compensation: Client and Consultant have executed this Task Order and Consultant is directed to proceed with the Services set out in this Task Order. City of Carmel Environmental Forensic Investigations, Inc. Signature Signature Name(Printed or Typed) Name(Printed or Typed) Date Date lENS R® it,rensics ATTACHMENT B FORM OF CHANGE ORDER In accordance with Article 5 of the Master Services Agreement dated August 10, 2005, ("Agreement")between the City of Carmel ("Client") and Environmental Forensic Investigations, Inc. ("Consultant"), this Change Order modifies the Services, Schedule, or Compensation. The following Attachments constitute the basis for the Task Order, including the scope of work,project schedule, and compensation. All of these Attachments are incorporated herein by reference. Attachment 1 — Attachment 2 — Attachment 3 — All other terms and conditions remain unchanged. City of Carmel Signature Name(Printed or Typed) Date Environmental Forensic Investigations, Inc. Signature Name(Printed or Typed) fiEV Ro- re sIcs TASK ORDER Task Order No. 1 Project Number: 585.E.01 Effective Date: August 10, 2005 Environmental Forensic Investigations Inc. ("Consultant") agrees to perform for City of Carmel ("Client")the Services described below. The Services shall be performed in accordance with the provisions of the Master Services Agreement ("Agreement") dated August 10, 2005,between Client and Consultant. The following Attachments constitute the basis for Task Order 1, including the scope of work,project schedule, and compensation. Project: Underground Storage Tank Removal and Site Evaluation Start Date: August 10, 2005 Scope of Work The anticipated scope of work will consist of the following: • Prepare a Site Specific Health and Safety Plan. • Public utilities will be marked by Indiana Underground Plant Protection Services on an emergency basis prior to excavation activities. • Pump, containerize and dispose of Underground Storage Tank ("UST") liquids. • Remove the 500 gallon UST and dispose offsite as scrap metal. Part of the concrete curb and/or alleyway adjacent to the UST may require removal. • Assess the soils within the UST excavation pit for signs of impacts. If no apparent signs of contamination are present, samples will be collected from the excavation sidewalls and floor for screening purposes prior to confirmation sample collection. The screening samples will be placed in plastic bags and allowed to set. A photo ionization detector("PID") will be utilized to monitor the headspace within the plastic bag for volatile organic vapors. If PID readings indicate the presence of organic vapors, additional soil excavation activities may be required. If PID readings do not indicate the presence of volatile organic vapors, then confirmation soil samples will be collected from the excavation pit per IDEM's RISC User's Guide. ENU R6 f4reflSIcS • Any impacted soils will be excavated and disposed offsite at the Southside Landfill located in Indianapolis, Indiana. • Confirmation soil samples will be collected and analyzed in accordance with IDEM's RISC User's Guide. Samples will be collected every 20 feet along the excavation sidewalls, and approximately 2-4 confirmation soil samples will be collected from the excavation floor. Samples will be submitted to Envision Labs and analyzed for methyl tertiary butyl ether ("MTBE"); benzene,toluene, ethylbenzene, and xylene ("BTEX"); benzo(a)anthracene; benzo(b)fluoranthene; benzo(k)fluoranthene;benzo(a)pyrene; chrysene, dibenz(a,h)anthracene; and indeno(1,2,3-cd)pyrene. All soil samples will be analyzed by the laboratory on a 24-hour rush basis. If the soil samples yield results below the appropriate RISC Default Closure Levels, no additional work will be required. If the soil samples yield results above RISC Default Closure Levels, additional soil excavation activities may be required. • • It is anticipated that groundwater will not be encountered during UST removal and soil excavation activities. If groundwater is encountered, you will be notified, options will be presented to you at that time, and a separate Task Order will be prepared. • A brief letter report summarizing all UST removal, soil excavation, and confirmation sampling activities will be completed and presented to you following field activities. The report will include, but not be limited to, a description of all work activities, figures depicting Site location and excavation boundaries, tables summarizing field monitoring and analytical results, and laboratory analytical reports. • Backfilling is not included. Compensation: The Task Order 1 Scope of Work will be completed on a time and materials basis in accordance with the attached Schedule of Charges Labor Rates and Schedule of Charges Field Services. An estimate based on our current understanding of field conditions is presented in Table 1. [Balance of Page Left Blank Intentionally] -GiT xTr;:y / rensics Client and Consultant have executed this Task Order 1 and Consultant is directed to proceed with the Services set out in this Task Order 1. City of Carmel Environmental Forensic Investigations, Inc. Signa e Signaturyf ms's . 6 40.1 S,E c �C•., j� . L/<�f �4., Name(Printed or Typed) Name Minted or Typed) d d--/f Date Date TABLE 1 Cost Estimate for Task Order 1 ESTIMATED TASKe,,,. -COST UST Removal(one day estimate) $3,900 • Mobilization,Open, Clean,Remove&Dispose UST, Labor for Soil Monitoring and Sampling,Demobilization Liquids Disposal $345 • Unit cost=$1.15/gallon. Estimate 300 gallons Soil Disposal $5,520 • Unit cost= $55.20/ton. Estimate 100 tons Confirmation Soil Sampling Activities • Six sidewall and 2 floor soil samples, BTEX (6 @ $41 each) $246 • Six sidewall and 2 floor soil samples,PAH(6 @ $92 each) $552 • 24-hour turnaround time surcharge= 100% $798 Data Analysis,Report Preparation &Project Management $5,000 TOTAL. ESTIMATE $16,361 The above estimate is based on completion of all field work within a one-day time period. Additional work activities may be required, and the City of Carmel will be notified. m riJ1rren SCHEDULE OF CHARGES LABOR RATES Effective January 1, 2005 thru December 31, 2005 PROFESSIONAL LABOR RATES Executive Manager $180/hr - $210/hr Specialist/Expert $160/hr - $210/hr Principal Engineer or Scientist $150/hr - $165/hr Project Manager $13 0/hr - $150/hr Senior Engineer or Scientist $ 95/hr - $130/hr Project Engineer or Scientist $ 90/hr - $ 95/hr Associate Engineer or Scientist $ 80/hr - $ 90/hr Staff Engineer or Scientist $ 70/hr - $ 80/hr Field Technician to Field Supervisor $ 65/hr - $ 90/hr Investigator and Insurance Archeologist $130/hr - $150/hr Litigation Support Research $ 90/hr Drafter/CADD Operator $ 85/hr Deposition and Expert Witness Preparation and Testimony 150% of above rates PROJECT SUPPORT Controller $130/hr Project Accountant $ 60/hr - $ 70/hr Word Processor/Administrative Assistant $ 50/hr - $ 60/hr Contract Labor Actual Cost+ 15% Associated Project Cost* (applied to labor hours only) $ 5/hr *Includes communication costs(telephone, mail, express delivery,facsimile), miscellaneous reprographics costs, and computer consumable supply cost. G./Contracts/Labor Fee Schedule.doc - 1 of 1 ,1 M E' I'1 it R� �� iC SCHEDULE OF CHARGES FIELD SERVICES Effective January 2005 through December 31, 2005 DIRECT CHARGES-EQUIPMENT RATES Vehicles Company Owned Field Vehicle $ 15/hour $105/day Company Owned Service Truck $ 20/hour $140/day Employee Owned Vehicle Fee $0.375/mile Meters Meter- Air Velocity Meter $ 25/per use Meter- Conductivity/pH/Temp $ 20/day $ 80/week Meter- Dissolved Oxygen $ 40/day $160/week Meter- FID Foxboro/Sensidyne(TIP) $150/day $600/week Meter- Flow Cell $100/day $400/week Meter- PID or 580 OVM $115/day $460/week Meter- Turbidity $ 30/day $120/week Pumps Pump—Air(Low Flow—Barcad) $ 25/day $100/week Pump—Air(MicroPurge) $ 100/day $400/week Pump - Development $ 60/day $240/week Pump - Electric Submersible w/Generator $125/day $500/week Pump—Peristaltic w/Generator $100/day $400/week Pumping Test Accessory Equipment (flow meters/manifolds/tubing) $100/each Pump (MicroPurge-Bladder) $ 10/per use Other Field Equipment Air Compressor $ 75/day $300/week Bailers (Disposable) $ 10/each Bailers (Non-Disposable) $ 15/day $ 60/week Core Box $ 10/each Core Sampler $ 55/day $220/week Data Logger w/Transducer $150/day $600/week Dissolved Oxygen Ampules $ 2/each Drum- 55-Gallon $ 50/each Electric Well Sounder(Probe) $ 30/day $ 120/week EnCore Samplers $ 10/each Field Book $ 10/each Filter—Large $ 17/each G:/Contracts/Direct Fee Schedule.doc 1 of 2 Filter—Small $ 8/each Generator $100/day $400/week Hand Auger $ 30/day $120/week Oil/Water Interface Probe $100/day $400/week Padlock $ 15/each Steam Cleaner $125/day $500/week Trailer with 1025 Gallon Tote $175/day $700/week Transducer(each) $ 40/day $140/week Tubing- Silicone: 3/8" STD (25 feet) $200/each Tubing- Tygon: 3/8" STD (50 feet) $200/each Safety Equipment Draeger(or Sensidyne) Detection System $ 25/day $100/week Gloves (Chemical Resistant) $ 10/pair Level "D" Gloves, Hard Hat, Eye and Ear Protection, Disposal Suit and Gloves (1 pair) $ 20/day/person Level "CT': Level "D"plus Respirator $ 40/day Level "Cl": Level "C2"plus Polycoat Suit $ 80/day $320/week Level "B": Level "Cl" plus SCBA $200/day $800/week Standby SCBA $125/day $500/week Cones, Barricades and Traffic Signs $ 10/day DIRECT CHARGES—TRAVEL AND SUBSISTENCE RATES Travel At Cost Lodging At Cost Meals At Cost DIRECT CHARGES—SUBCONTRACTS & OUTSIDE SERVICES RATES Subcontracts At Cost+ 15% Outside Services At Cost+ 15% Database Searches $70/search G:/Contracts/Direct Fee Schedule.doc 2 of 2 rf1Drensics SCHEDULE OF CHARGES PRODUCTION SERVICES Effective October 1, 2004 through December 31, 2004 DIRECT CHARGES RATES Camera $25/day Color copies (81/2x 11) $1.00/page Color copies (11 x 17) $2.00/page Field Laptop Computer and PDA $35/day PLOTTER CHARGES Paper C-Size D-Size E-Size Size(width x height) 21x16 33x21 43x33 Color $11.67 $24.06 $49.27 Clear Plastic or Specialty Paper $21.00 $43.31 $88.69 BINDERS 1 inch binder $ 9/each 2 inch binder $12/each 3 inch binder $15/each 4 inch binder $22/each Report Binder Tabs $ 5/set of 8 G:/Contracts/Direct Fee Schedule.doc 1 of 1