Environmental Forensic Investigations, Inc - 2005 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
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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.
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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 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
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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
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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 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 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,
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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 1N 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.
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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
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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.
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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 may be 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
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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 Carmel
One Civic Square
Carmel,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.
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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.
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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]
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SIGNATURE PAGE FOR MASER SERVICES AGREEMENT
DATED August 10, 2005
CLIENT
City of Cannel
Signs
L,�S £. ono
Name(Printed or T, .ed)
6 /s.-Ott"'
Date
CONSULTANT
Environmental Forensic Investigations,Inc.
Stepherjj'.Henshawl�
Chief Executive Officer
/0
Date
Date
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ATTACHMENT A
FORM FOR TASK ORDER
'ENVI?R0 r nslcs
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
ATTACHMENT B
FORM FOR CHANGE ORDER
•
;ENUI RO; 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)
'f:11 VI R 076rensics
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
Cannel ("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.
E NAY IRO`fivre
• 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(k)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]
ENVIR0,;--'1-Grensics
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 a- Signatur
G ms's . d 4„,p /bell �'��
Name(Printed or Typed) Name(hinted or Typed)
//'////cr
Date Date
ENUI`RO`' rensics
TABLE 1
Cost Estimate for Task Order 1
ESTIMATED
b_. TASK_ . 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.
3}EN1/IR04 - rensics
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 $130/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 $13 0/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
ENVIRO.A rensics
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
E:NVIRO'` rensics
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 "C2": Level "D" plus Respirator $ 40/day
Level "Cr: 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
ENV IR`O çrnsiCs
SCHEDULE OF CHARGES
PRODUCTION SERVICES
Effective October 1, 2004 through December 31, 2004
DIRECT CHARGES RATES
Camera $25/day
Color copies (8 V2 x 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
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