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2010-003 RES APPROVING PROFESSIONAL SERVICES CONTRACT WITH WEAVER BOOS CONSULTANTS, STILLHOUSE ROAD LANDFILLRESOLUTION N0. 2010-003 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF PARIS, TEXAS, APPROVING A PROFESSIONAL SERVICES CONTRACT WITH WEAVER BOOS CONSULTANTS, LLC TO PREPARE AND FILE A MUNICIPAL SETTING DESIGNATION WITH THE TEXAS COMMISSION ON ENVIRONMENTAL QUALITY FOR THE STILLHOUSE ROAD LANDFILL; MAKING OTHER FINDINGS AND PROVISIONS RELATED TO THE SUBJECT; AND DECLARING AN EFFECTIVE DATE. WHEREAS, the City of Paris is in need of professional services to prepare and file a municipal setting designation with the Texas Commission on Environmental Quality for the Stillhouse Road Landfill and Weaver Boos Consultants LLC has made a proposal for Groundwater Monitoring and Testing Services; and, WHEREAS, the proposal from Weaver Boos Consultants, LLC is deemed to be in the best interest of the City of Paris and its citizens and that such professional services contract in a form substantially similar to Exhibit A attached hereto and made a part hereof be approved; NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF PARIS, TEXAS: Section 1. That the findings set out in the preamble of this resolution are hereby in all things approved. Section 2. That the proposal of Weaver Boos Consultants, LLC for professional services to prepare and file a municipal setting designation with Texas Commission on Environmental Quality for the Stillhouse Road Landfill described in Exhibit A attached hereto, be, and the same is hereby accepted. hereby Section 3. That the Mayor of the City of Pr fes sonal Services Cont actthnr s ized a form ublstant ally execute on behalf of the City of Paris the similar to the form of Exhibit A attached hereto. Section 4. That this resolution shall be effective from and after the date of passage. PASSED AND ADOPTED this 11th day of January, 2010. ATTEST: , a ice Ellis, City Clerk APPROVE AS-W FORM: W. Kent c lyar, ity Attorney ,Jesse Jam Freelen, Mayor 1Er-4DOS ~oxsvz.'rAZV'ss LLC SOUT~-Y~YEST December 10, 2009 Mr. Shawn Napier, P.E. City of Paris 150 SE First Street Paris, Texas 75460 6420 SOUTHWEST BLVD, SUITE 206 Cliicugo, IL Sp~-iri~eld, IL FORT WORTH, TEXAS 76109 Naperville, IL PHONE: 817.735.9770 G~•iffith, IN FAX; 817.735.9775 South Bend, IN www.weaverboos.com Detrver; CO St. Louis, MO Coluinbus, OH Beaverton, OR Fort Wortli, TX Re: Proposal for MSD Consulting Services Stillhouse Road Landfill, Paris, Texas Dear Mr. Napier: LLC-Southwest (WBC) is providing the City Per your request, Weaver Boos Consultants, of Paris (City) with a proposal to complete ea u~paareattwill ancludetthe landf 11 application for the Stillhouse Road Landfill a ts. property and all adjacent areas impacted by S~nh~he CRyad ~ andmll~ ri1 junsdict omin n.anAs This proposal assumes the MSD area is w part of the MSD application, the City would pass an ordinance or restrictive covenant that prohibits the use of groundwater from beneath the de i gnXted area.to beo r~emoged. e Tneed lus for groundwater remediation or future morlltor g P c proposal includes the following service tasks: Task 1- Five Mile Water Weil Search WBC will obtain a five mile radius water well required yAthe nyTdentQ~ified water applications. The results will become part of the MD aPP wells within the search radius will receive a MSD TCEQ-required on for1C ty tord'inance t xt a d o f t h is tas k, W B C w i l l o b t a i n a c o p i e s o f an P P other reference purposes. According to TCEQ MS Drb ua~ then her ext npof a ny sue groun dwa ter w e l l w i t h i n 0.5 m i l e s o f t h must be determine d and t he gro 0un dwater contamination beyond that boundary e uirements. I f t here is no groundwater remediated in accordance with TCEQ ren the contamination will not groundwater well within 0.5 miles of the MSD boundary, be assessed or remediated for potable pu.rposes. Task 2-Public Water Supply System Verification WBC will obtain a letter from the Lamar COand owners ~~ithin 0.5 Pmilesof the MSD indicates public water supplies are available to 1 area - as required by the TCEQ for MSD applications. WBC will also obtain map-based information regarding the water supply line locations. This infonnation will become part of the MSD application. EXHIBIT _A,,. Ivlr. Shawn Napier December 10, 2009 P age 2 Task 3 - Application Preparation lication for submittal to the TCEQ. WBC will prepare a Stillhouse Road Landfill MSD aPpimits of known contamination, The application will present the site history, oundwater quality and resources, contamination trends, area geology, hydrogeology, grinformation, and a draft or final City ordinance water well daea~SD ~eta ~o water dwate~rpprohibition. supporting Task 4- Pubiic Notice Activities WBC will complete the public notice activities required by the TCEQ at or before the the MSD application submittal. The noticed parties i lllwdhin 5 mile~stof theeMSD area, and supply provider that owns a groundwater supply we ch owner of a private water supply well within 5 miles ofd ng e th SDoposed MSD t The ea parties have 60 days to file comments with the TCEQ rega the MSD application until 60 days after the notice mailing. TCEoQ cannot wing the deny public or notice certify mailing, WBC ~'ill submit the MSD application to the TCEQ. Foll Task 5- MSD Support Services -nical , WBC will travel up to two times to a City office to provide tech Under this task sonnel or support for the MSD initiative. These visits may be used to brief City p council members on the MSD requirements and project status. Task 6- Groundwater Monitor Well and Piezometer Pluggin9 Following the TCEQ approval of the Stillhouse Road Landfill MSD, WBC will arrange oundwater ff-site for a Texas-licensed well driller to plug o l~hexlSandfill subsurfaceoinv stigations - as monitor wells and piezometers related authorized by the TCEQ. The driller will remove all surface materials and all well casing aterials that can be pulled from the surface. All remove de albackhoe andlopera o pats d m of by the City at the City's expense. The City wi provi activities. In addition, the City will complete own expense to facilitate the well plugging well location restoration activities at its own expense. Schedule December 31, 2009, WBC ~'ill submit a Assuming the City accepts this proposal by b J~,uar~, 9, 2009. The letter is TCEQ response action schedule letter to the TCEQ Y for m ovina the landfill intended to provide a schedule to Arten Avachian of the TCEQ ~ O:ICIZ'S- OFPARISWROPOSA-1130091N.5DPR0°OS.4L1M5D?ROPOSAL 1=-09.DOr Mr. Shawn Napier December 10, 2009 Page 3 contamination case towards closure in response to his timeline extension letter of November 18, 2009. Budget An estimated budget for the report p~aterals costs, l l consis ent w th the attached Annual invoice the City for project time and Fee Schedule. Additional services d Annual Fe Schedule be invoiced for time and m a t e r i a l s c o s t s, c o n s i s t e n t w i t h t h e attache Estimated Budget for Stillhouse Road Landfill MSD Services Contractor Labora#ary V11BC Expenses Task Task / Description ' Services Analyses Cabor Total Task 1: Five Mile Water Well $2,000 - $5,000 $500 $7,500 Search Task 2: Alternative Public Water _ _ $2,000 $500 $2,500 Supply Verification Task 3: MSD Application $10,000 $500 $10,500 $2,500 $500 $3,000 Task 4: MSD EPuPublic Notice Mailing - - Task 5: MSD Support Services - - $2,500 $500 $3,000 $3,500 $1,000 $14,500 Task 6: Monitor Well Plugging $10,000 - $41,000 Project Totals Proposal Assumptions We have developed the preceding project approach based on the following assumptions. • The area impacted by landfill-sourced contaminants is within the City extraterritorial jurisdiction. . The City will pass an MSD groundwater ordinance or restrictive covenant. • There are no existing groundwater supply wells within the proposed MSD area. . When the Task 6 well and piezometer plugging activities are required, the City will make all arrangements for off-site property access, landowner permission remove the off-site wells and piezometers, and the City will dispose of all well and piezometer plugging wastes at the City's expense. p: ,C177' OF PARlS~PROPOSALt2009+MSD PROPOSAL'MSD PROPOSAL 11-09.UOC Mr. Shawn Napier December 10, 2009 Page 4 • Additional WBC Additional Consideration or Task 6 costs may be incurred due to poor access or impassible conditions. Additional Groundwater Monitoring Consideration • The TCEQ may not approve a Stillhouse Road Landfill MSD area without confirmation of the approximate extent of groundwater VOC and metals contamination. The results from the 2008 groundwater sampling indicated VOC and metals concentrations exceeding the TCEQ's groundwater protection standards were present at the northern and eastern landfill boundary areas. If requested by the TCEQ and City, WBC will attempt to determine the extent of off- site groundwater VOC contamination by drilling, installing and sampling up to three off-site groundwater piezometers in one mobilization to the site. In addition, up to five additional existing landfill piezometers or monitor wells will be sampled and analyzed for VOCs and metals for confirmation of current on-site conditions while at the site. As part of this monitoring activity, the City will make all arrangements for off-site property access, permission to install and sample groundwater piezometers, and City disposal of all drilling and groundwater sampling wastes. It is recommended the off-site piezometers remain functional until the MSD is approved by the TCEQ and their removal is authorized by the TCEQ. The estimated cost for the piezometer installations and groundwater sampling, analyses and reporting is $17,350. We appreciate the opportunity to be of service to the City. Attached to this proposal are copies of a Proposal Acceptance Sheet, WBC General Terms and Conditions, and WBC fee schedule. If this proposal is acceptable, please return one signed copy of the Proposal Acceptance Sheet to our office. Please contact me with any questions or concerns. Sincerely, Weaver Boos Consultants, LLC-Southwest Robert S. Ferbend, P.G. Senior Hydrogeologist Attachments: Proposal Acceptance Sheet WBC General Terms and Conditions WBC Annual Fee Schedule Q%Cl7YOFPkNSPROPOSAL',2D09Vv1SDPROPOSAL'•MSDPROPOSALl1-l19.DOC 6~0'0y ~Qq2;}.~~GfG62t.~ WEAVER BOOS CONSULTANTS, LLC-SOUTHWEST 6420 Southwest Bivd., Suite 206 Fort Worth, Texas 76109 (817) 735-9770 PROPOSAL ACCEPTANCE SHEET Description of Services: MSD Consultinc, Services Project Name: Stillhouse Road Landfill Project Address: Stillhouse Road, Paris, Texas Weaver Boos Project No.: F21102 Date: 12-09-09 Client Contract No.: For approval and payment of char(yes, invoices will be charged to the account of: Firm: City of Paris, Texas Attention: Mr. Shawn Napier, P.E. Street Address: 150 SE First Street City/State: Paris, Texas Zip Code: 75460 Telephone:(903)784-9292 This AGREEMENT acknowledges acceptance of the Standard Terms and Conditions (attached) and is subject to the following special provisions/payment schedule: Yer ALla~tlw iv v~u. - This AGREEMENT is accepted by: Weaver Boos Consultants LLC-Southwest / By (Signature) (Signature) Jeffre P. YounQ P.E. By (Type/Print) By (Type/Print) Princi al Accepted: , 20 Accepted: I 2 J 10 , 20 0 9 O: iC17Y OF PARlSV ROPOSALl2009W15D PROPOSAL-,PROPOSAL A('('EPT SHELT 12-09.R7F WEAVER BOOS CONSULTANTS, LLC ANNUAL FEE SCHEDULE - PROFESSIONAL SERVICES (Effective October 1, 2008) V. SURVEI'IlVG . Hr 130.00 a) Senior Professional Land Surveyor Hr 110.00 b) Professional Land Surveyor Hr. 85.00 c) Survey Project Coordinator ~ 85.00 d) Survey Party Cluef Hr 130.00 e) Survey Party - 2 Man/Conventional I-Ir 170.00 fl Survey Party - 3 Man/Conventional Hr 130.00 g) Survey Pariy - 1 Man/GPS or Robotic ~ 170.00 h) Survey Party - 2 Man/GPS or Robotic . 210.00 i) Survey Party - 3 Man/GPS or Robonc............................................ VI. EQUIPMENT RENTAL FEES Day 40.00 a) pH, Specific Conductance and Temperature Meter Day 35.00 b) Peristaltic Filter Pump Day 40.00 c) Electric Purge Pump Day 100.00 d) Grundfos Pump Control Box Day 30.00 e) Water Level Indicator Ea 20.00 fl Filter and Hose (for pump) Day 120.00 g) Micropurge Flow Cell and Sonde Day 90.00 h) . GA 90 (formerly grouped with GEM's below Gloves)/per person/per chg of clothing Boots ks T " " Ea 50.00 0 i) , , yve ( D Modified Level Day 110.0 J) Photoionization Detector Meter Day 60.00 k) Nuclear Density Gauge Day 50.00 1) Air Sampling Equipment, per pump Day 25.00 m) Hand Operated Field Probe Equipment Day 30.00 n) Explosimeter Day 175.00 o) GA90/GEM 500/GEM 2000 Gas AnalYzer . Day 110.00 p) Flame Ionization Detector Day 50.00 c) Interface Probe Day 50.00 r) ATV Day 75.00 s) Company Truck .00 0 1 t) Hand-Held Field GPS/G15 .00 75 Day u) Laser Level Day 2,500.00 v) Spatial Imaging Laser Scanner TESTING AND RENTAL NOTES: 1. Rates for testing and e4mPment not listed above aze available on request. 2. Testing and equipment rental costs are negotiable for specific projects and for on-site laboratory programs• ~ µ,ith normal turn- 3. Laboratory imit prices covet equipment and labor costs to perform standazd test procedures and laboratory repo around times. Non-standud teshng re4uirements, supervisory and project management costs, data evaluation costs, and environmental sample disposal cosu are not included in the testing unit prices and are billed separatelY. 4. Equipment rental rates are for equipment costs only. Tiansportation, cabbration and peisonnel costs are billed sepazately. 5. Daily and weekly rates cover a mazimum of 10 and 50 hours respectively. ~ess other airangements aTe a~eed to in writing• 6. SAMPLES WII-L NOT BE RETAINED beyond classification and testing Environmental samPles remain the Property of the client Any modifrcation to this fee schedule requires the written approval of Weaver Boos Consultants, LLC Page 2 of2 O:\I-IOMETroposaMtrachmrna_LLC'Fa Schcdule\WBC NC Fx Schedulc_ Oct OB.doc WEAVER BOOS CONSULTANTS, LLC General Terms and Conditions Version 2009-A1 Page 1 of 4 These General Terms and Conditions are incorporated by reference into the foregoing Proposal and shall along with the Proposal constitute the agreement (the "Agreement") under which services are to be performed by Weaver Boos Consultants North Central, LLC (WBC) for Client. Unless timely accepted without reservation or change by Client, the Proposal shall remain valid for 90 days after which time it shall expire and been deemed revoked. SECTION 1: SCOPE OF SERVICES a. It is understood that the scope of services and time schedule defined in the Proposal are based on the inforrnation provided by Client and certain assumptions based upon WBC's experience and Client's representations. If this information is incomplete or inaccurate; or if unexpected site conditions are discovered; the scope of services and time schedule may change; even as the work is in progress. b. The scope of services shall include all services provided by WBC in its discretion, which are reasonably necessary and appropriate for the effective and prompt fulfillment of WBC'S obligations under the Agreement and all services shall be subject to the provisions of the Agreement, including these General Terms and Conditions and any Supplemental Terms or Conditions incorporated herein. All such services provided shall be invoiced and paid for in accordance with Section 3 below. c. All additional or subsequent work performed for client, shall be subject to these General Terms and Conditions, unless otherwise expressly superseded or modified by mutual written agreement of WBC and Client. SECTION 2: CLIENT DISCLOSURES a. It shall be the duty of the Client before and during the project to promptly notify WBC of any known or suspected hazardous substances which are or may be related to the services to be provided. Such hazardous substances shal] include but not be limited to any substance which posed or may pose a present or potential hazard to human heaith or the environment, whether contained in product, material, by-product, waste or sample and whether it exists in a solid, liquid, semisolid or gaseous form. b. Following any disclosure as set forth in the preceding paragraph, or if any hazardous substances are discovered or reasonably suspected by WBC after its services are undertaken, and which WBC determines in its discretion substantially change the costs and risks of the project, then WBC may, at its discretion, discontinue its services. c. Client shall timely notify WBC of potential health hazards or nuisances which might arise out of the work by WBC and its contractors and/or subcontractors (hereinafter referred to as subcontractors), and thereafter WBC shall take necessary and reasonable measures to protect its employees against such possible health hazards or nuisances. The reasonable direct costs of such measures shall be bome by the Client. d. The Client shall notify WBC of any other conditions, of which Client is or should reasonably be aware of, which might significantly affect the efficiency or safety of work of WBC. SECTION 3: BILLING AND PAYMENTS a. Unless otherwise specifically provided in the Agreement, billings will be based on the fee schedule referenced in the proposal. WBC shall submit invoices monthly for services performed and expenses incurred and not previously billed on any previous invoice_ Payment is due upon receipt. For all amounts unpaid after thirty (30) days of the invoice date Client agrees to pay to WBC a finance charge of one and one-half percent (1 1/2%) per month, eighteen percent (18%) annually, or the legal maximuin rate if it is less. The biliing rates described in this Agreement may be modified on a periodic basis (typically annually). These modifications will be incorporated into long term pro.jects, unless othenvise addressed in the Proposal. b. The Client shall provide WBC with a clear written statement within fifteen (15) days after receipt of the invoice of any objections to the invoice or any portion or element thereof. Failure to provide such a written statement shall constitute acceptance of the invoice as submitted. Only reasonably disputed sums may be withheld from payment. For purposes of this section, Client may only dispute a charge on the basis that the related services were not performed, or that they were performed in an defective manner falling beneath the requisite standard of care. Further, WBC and Client agree to promptly meet, address and resolve invoice disputes. c. The Client's obligation to pay for the services performed under this Agreement is in no way contingent upon other events; including but not limited to Client's ability to obtain financing, zoning, approval of governmental or regulatory agencies, final adjudication of a lawsuit in which WBC is not involved, complete a transaction or successfully complete the project. No deduction shall be made from any invoice on account of penalty, liquidated damages or other sums withheld from payment to WBC. d. If timely payments are not received, then WBC may commence collection activities. It is agreed that all expenses incurred by WBC in obtaining liens, obtaining judgments or collecting any amounts due under the Agreement including the time of WBC employees, at full billing rates, all associated costs, and reasonable attomey's fees shall be recoverable from the Client. SECTION 4: RIGHT OF ACCESS a. If services to be provided under this Agreement require the agents, employees, or subcontractors of WBC to enter onto the Project site, Client shall provide timely right of access to the site to WBC, its employees, agents and subcontractors, to conduct the planned field observations and services. WBC shall take reasonable precaution to reduce damage to the site due to its operations, but is not responsible for the cost of restoration for any damage resulting from its operations, unless otherwise provided for ia the Proposal. SECTION 5: SAMPLING OR TEST LOCATION a. If the scope of services includes performance of soil borings, or other subsurface excavations by WBC, it is understood that the Client will furnish WBC with a diagram indicating the location and boundaries of the site, and all subsurface structures and utilities. WBC reserves the right to deviate a reasonable distance from the proposed boring location(s). Client recognizes that drilling equipment is large and heavy and understands the risk of site damage. At Client's request and cost, WBC will restore the site to the conditions existing prior to WBC operations if practicable. WBC shall not be liable for damage or injury to or resulting from damage to subterranean structures (pipes, tanks, cables, wires or other utilities and subsurface structures, etc.) which are not called to WBC's WEAVER BOOS CONSULTANTS, LLC General Terms and Conditions Version 2009-A1 Page 2 of 4 c. d. attention in Nyriting and correctly shoN+m on the diagram(s) furnished or correctly marked at the site. Unless otherwise stated, the fees in this proposai do not include costs associated with surveying of the site for the accurate horizontal and vertical locations of tests. Field tests or borina locations described in our report or shown on sketches are based upon information furnished by others and/or estimates made in the field by our representatives. Such dimensions and elevations should be considered as approximations unless otherwise stated. This agreement may be terminated by WBC if site conditions prevent soil borings or other subsurface excavations by WBC at or near the designated ]ocations, because of either obstructions or safety considerations, and these conditions were not revealed to WBC prior to acceptance of this Agreement. ]f, in order to complete borings, or other subsurface excavation, to their designated depths, additional work is necessitated by encountering impenetrable subsurface objects, this and all additional work will be charged for at the appropriate rates in the fee schedule. Any equipment lost or damaged due to site surface or subsurface conditions, and not due primarily to the negligence of WBC or its subcontractors, will be invoiced at cost plus 15 percent. SECTION 6: SAMPLES a. All materials and samples will be discarded immediately after testing unless the Client advises WBC in writing to the contrary. In such case, the samples will be delivered, shipping charges collected, or stored at owner's expense. b. Client shall have the sole responsibility to dispose of any hazardous substance or regulated contaminant whether the result of or a by-product of sampling or not, in accordance with applicable law. Client shall bear all costs and liabilities associated therewith. c. Client agrees to indemnify, defend and hold harmless WBC from any claims made or asserted against WBC arising out of or related to collection, storage or disposition of samples or materials alleging a failure to comply with any Federal, State or local environmental law, regulation or ordinance. SECTION 7: REPORTS AND OWNERSHIP OF DOCUMENTS a. With the exception of WBC reports to Client, all documents, including field data, field notes, laboratory test data, calculations and estimates are and remain the property of WBC. Client agrees that all reports and other work furnished to the Client but not paid for in full will be returned to WBC upon demand and will not be used for design, construction, permits, licensing, or any other purpose. b. Documents, including but not limited to, technical r-ports, field data, field notes, laboratory test data, calculations, and estimates furnished to the Client or its agency pursuant to this agreement are not intended or represented to be suitable for use by third parties or reuse by the Client or to the extensions of the Project or on any other project. Any use or reuse without WBC's written consent will be at Client's sole risk and without liability or legal exposure to WBC or to WBC's subcontractor(s). Client shall indemnify and hold harmless WBC and WBC's subcontractor(s) from all claims, damages, losses and expenses including attorneys' fees arising out of or resulting therefrom. SECTION 8: LNDEMNITY PROVISIONS a. WBC agrees to indemnify, hold harmless, and defend Client from and against any loss, damage, iniury, claim, and liability arising from and to the extent caused by the negligent acts or omissions of WBC, its agents and subcontractors, but subject to the limitations of liability set forth in Section Il of this Agreement. Further, Client agrees to indemnify, hold harmless, and defend WBC against any loss, damage; injury, claim or liability not caused by or arisine from the acts or omissions of WBC. b. Client hereby waives all claims for indemnity and contribution (and related theories) for claims which are otherwise covered (or would be ordinarily covered) when made directly to WBC or its subcontractors under Worker's Compensation insurance provided by WBC or its subcontractors. SECTION 9: STANDARD OF CARE a. WBC represents that the services performed under this Agreement will be performed with the care and skill ordinarily exercised by reputable members of the profession practicing under similar conditions at the same time in the same or simi]ar locality. 3. Client recognizes that subsurface conditions may vary Trom those encountered at the locations where the borings, surveys, or explorations are made by WBC and that the data interpretations and recommendations of WBC's personnel are based solely on the information provided to WBC. WBC will be responsible for those data, interpretations, and recommendations, but shall not be responsible for the interpretation by others of the information developed. c. NO OTHER WARRANTY, EXPRESSED OR IMPLIED, IS MADE OR INTENDED BY RENDITION OF CONSULTING SERVICES OR BY FURNISHING ORAL OR WRITTEN REPORTS OF THE FINDINGS MADE. SECTION 10: INSURANCE a. WBC represents that it and its agents, consultants, and subcontractors employed by it, have procured Worker's Compensation insurance and that WBC has coverage under liability insurance policies which WBC deems reasonable and adequate. WBC shall furnish certificates of insurance upon request. If the Client requests specific inclusions or limits of coverage that are not present in WBC's insurance, the cost of such inclusions or coverage increases, if available, shall be at the expense of the Client. SECTION 11: LIMITATIONS OF LIABILITY a. IT IS AGREED THAT, TO THE FULLEST EXTENT PERMITTED BY LAW, CLIENT WILL LIMIT WBC's TOTAL AGGREGATE LIABILITY TO CLIENT TO $50,000 OR THE AMOUNT OF WBC's FEE WHICH HAS BEEN ACTUALLY PAID TO AND RECEIVED BY WBC, WHICHEVER IS LESS, FOR ANY AND ALL INJURIES, CLAIMS, LOSSES EXPENSES OR CLAIM EXPENSES (INCLUDING ATTORNEY'S AND EXPERT WITNESS FEES) ARISING OUT OF THIS AGREEMENT OR THE SERVICES TO BE PERFORMED PURSUANT TO THIS AGREEMENT FROM ANY CAUSE OR CAUSES. SUCH CAUSES INCLUDE, BUT ARE NOT LIMITED TO, WBC'S WEAVER BOOS CONSULTANTS, LLC General Terms and Conditions Version 2009-A1 Page 3 of 4 NEGLIGENCE, ERRORS; OMISSIONS, STRICT LIABILITY, BREACH OF CONTRACT, STATUTORY LIABILITY, BREACH OF WARRANTY. NEGLIGENT MISREPRESENTATIONS, ENVIRONMENTAL LIABILITY OR OTHER ACTS GIVING RISE TO LIABIL]TY BASED UPON CONTRACT, TORT OR STATUTE. 1T IS EXPRESSLY AGREED THAT THE REMEDY STATED HEREIN IS THE CLIENT'S EXCLUSIVE AND SOLE REMEDY FOR ANY DAMAGE(S) ARISING OUT OF THIS AGREEMENT OR SERVICES TO BE PERFORMED PURSUANT TO THIS AGREEMENT. b. WBC will increase our limitation of liability up to the limits of our available insurance coverage or otherwise to $100,000, whichever is greater, upon client's written request, and for the additional consideration of $500. Said request and payment must be received within 14 days of the date of execution of the Proposal and be before any claim arises. c. The Client further agrees to notify any contractors or subcontractors who may perform work in connection with any design, report or study prepared by WBC of such limitation of liability for breach of contract, errors, omissions or negligence and require as a condition precedent to their performing their work a like limitation of liability on their part as against WBC. d. The Client and WBC agree that neither will be liable to the other for consequential damages incurred due to the fault of the other. Said damages include, but are not limited to, loss of use and lost profits. e. With the exception of actions pertaining to materialmen or mechanic's liens, and if lawful, causes of action between the parties to this Agreement per[aining to acts or failures to act shall be deemed to have accrued and the applicable statutes of limitations shall commence to run on the date the alleged act or failure to act occurred. f. Not withstanding the above, all claims, whether based upon contract, tor[, breach of warranty, professional negligence (including errors, omissions or other professional acts), or otherwise, shall be deemed waived unless made by the Client in writing and received by WBC within one (1) year after Ciient reasonably knew or should have known of its existence, but in no event, shall such claim be asserted by Client later than two (2) years after WBCs completion of services with respect to which the claim is made. SECTION 12: ARBITRATION OF DISPUTES a. Claims, disputes or other matters in question between the parties to this Agreement arising out of or relating to this Agreement or the breach thereof shal] be subject to and decided by arbitration in accordance with the Construction Industry Arbitration rules of the American Arbitration Association currently in effect, such arbitration to be held in Chicago, Illinois, unless the parties mutually agree otherwise. b. Demand for arbitration shall be filed in writing with the other party to this Agreement and with the American Arbitration Association. A demand for arbitration shall be made within a reasonable time after the claim, dispute or other matter in question has arisen. In no event shall the demand for arbitration be made after the date when instittition of legal or equitable proceeding based on such claim, dispute or other matter in question would be barred by applicable statutes of limitations subject to Section 10(e) above. c. No arbitration arising out of our relating to this Agreement shall include; by consolidation; joined or in any other manner; an additional person or entity not a party to this Agreement except by written consent of WBC, Client and any other person or entity sought to be joined. d. The award tendered by the arbitrator shall be final, and judgment may be entered upon it in accordance with applicable law in any court having jurisdiction thereof. SECTION 13: TERMINATION a. This Agreement may be terminated by either party upon at least seven (7) days written notice in the event of substantial failure by the other party to perfonn in accordance with the terms hereof through no fault of the terminating party. Such termination shall not be effective if the substantial failure has been remedied before expiration of the period specified in written notice. b. WBC may terminate this Agreement if the Client suspends WBC's services for more than sixt}, (60) consecutive days through no fault of WBC's. c. This Agreement may be terminated without cause by either party apon at least sixty (60) days' written notice. d. If this Agreement is terminated, WBC shall be paid for services performed prior to the termination date set forth in the notice plus termination expenses. Termination expenses shall include costs attributable to personnel and equipment rescheduling and re-assignment and all other costs incurred directly attributable to termination. SECTION 14: MISCELLANEOUS a. In the event that any provision (or portion thereofl herein shall be deemed invalid or unenforceable, the other provisions hereto shall remain in full force and effect, and binding upon the parties hereto. In such event, the provisions found to be invalid shall be deemed to be reformed so that the intent of such provision will be enforced to the maximum extent permitted by applicable law. b. The heading or title of a section is provided for convenience and information and shall not serve to alter or affect the provisions included herein. c. All obligations arising prior to the termination of this Agreement and all provisions of this Agreement allocating responsibility or ]iability between the Client and WBC shall survive the completion of services and the termination of the Agreement. d. Unless otherwise provided, the substantia] law of the State of Indiana will govem the validity of this agreement, its interpretation and performance, and remedies for contract breach or any other claims related to this agreement. e. WBC shall applv professional judgment in determining the extent to which WBC shall comply with any given standard identified in WBC's documents. Unless otherwise indicated, such compliance, referred to as "General Compliance" specifically excludes consideration of any standard listed as a reference in the text of those standards cited by WBC. f. Unless specifically stated in WBC's Proposal, it is understood the costs for implementation of the work are based on privately owned projects utilizing merit (non-union) wages and employees. Government funded or publicly owned projects that require prevailing wages will have specific fees identified WEAVER BOOS CONSULTANTS, LLC General Terms and Conditions Version 2009-A1 Page 4 of 4 in the Proposal. Any job action; strike, or other requirement to use union represented employees will require renegotiation of the costs for performing the work. a. In the event [hat WBC borrows or uses equipment or machinery, including but not limited to stationary, mobile and non-road mobile equipment, from the Client, it is agreed that the equipment is being rented for the sum of $1.00 and other considerations unless a specific rental agreement is executed by the parties. h. This Agreement may be assigned by WBC to an affiliate company, in whole or in part. WBC may also retain persons or entities not in WBC's employ without Client's prior specific consent whe❑ such retention is appropriate and customary, including, but not necessarily being limited to, surveyors, drilling subcontractors, testing ]aboratories, remediation contractors, aitd specialized consultants. Client sllall not assign its duties and obligations hereunder without the prior written consent of WBC.