Loading...
HomeMy WebLinkAboutPR 20481: CONTRACT WITH BERG OLIVER ASSOCIATES, INC. P.R. No. 20481 09/19/18 gt RESOLUTION NO. A RESOLUTION AUTHORIZING THE CITY MANAGER TO ENTER INTO A CONTRACT WITH BERG OLIVER ASSOCIATES, INC. OF HOUSTON, TEXAS, FOR ENVIRONMENTAL SERVICES TO ATTAIN REGULATORY CLOSURE FROM THE TEXAS COMMISSION ON ENVIRONMENTAL QUALITY (TCEQ) FOR THE ENGINE 503 AND TENDER (TRAIN) IN THE AMOUNT OF $10,860.00; FUNDING AVAILABLE IN HURRICANE HARVEY ACCOUNT NO. 147-2300-91.54-00, PROJECT NO. 082617 WHEREAS, it is necessary for the City to enter into a contract for environmental services for the review of prior assessment documentation and to conduct additional assessment activities as needed to attain regulatory closure from the Texas Commission on Environmental Quality (TCFEQ) for the Engine 503 and Tender (Train) at the Bryan Park release site; and WHEREAS, Soutex Surveyors and Engineers received proposals for Limited Phase II Environmental Site Assessment and Related Items with Berg Oliver Associates, Inc. of Houston,Texas, being the lowest and most responsive bidder, in the amount of$10,860.00 (attached hereto as Exhibit "A"); and WHEREAS, it is in the best interest of the citizens to enter into a contract with Berg Oliver Associates, Inc. of Houston, Texas. for the review of prior assessment documentation and to conduct additional assessment activities as needed to obtain regulatory closure from the Texas Commission on Environmental Quality (TCFEQ) for the Engine 503 and Tender (Train) at the Bryan Park release site. s.pr20481 NOW THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF PORT ARTHUR, TEXAS: Section 1. That the facts and opinions in the preamble are true and correct. Section 2. That the City Council authorizes the City Manager to enter into a contract with from Berg Oliver Associates, Inc. of Houston, Texas, in the amount of $10,860.00, in substantially the same form attached hereto as Exhibit"B". Section 3. That a copy of the caption of this Resolution be spread upon the Minutes of the City Council. READ, ADOPTED AND APPROVED on this day of September, A.D., 2018, at a Meeting of the City Council of the City of Port Arthur, Texas, by the following vote: AYES: Mayor: , Councilmembers: , NOES: DERRICK FORD FREEMAN, MAYOR ATTEST: Sherri Bellard, City Secretary s.pr20481 APPROVED AS TO FORM: r ( /1-6()r 4 e/c. V I izen6, City Attorney APPROVED FOR ADMINISTRATION: Harvey Robinson, Interim City Manager APPROVED AS TO AVAILABILITY OF FUNDS: )(A,/ (fr Andrew Vasquez, Finance Director s.pr20481 EXHIBIT "A" s.pr20481 `Po •°`4. BERG♦OLIVER ASSOCIATES,INC. Environmental Science&Land Use Consultants - 14701 St.Mary's Lane, Suite 400 Houston, Texas 77079 ,6.14oNO?' (281) 589-0898 fax: (281)589-0007 August 17,2018 City of Port Arthur do Mr.George Newsome Soutex Surveyors and Engineers 3737 Doctors Drive Port Arthur,Texas 77642 Via email: GNewsome@gt.rr.com Re: Proposal for Limited Phase II Environmental Site Assessment and Related Items Bryan Park 1000 Gulfway Drive Port Arthur,Texas BOA361-10988H-P2 Opportunity No. 18-03377 Mr.Newsome, Berg-Oliver Associates, Inc. (BOA) is pleased to present this proposal for a limited subsurface investigation at the referenced site, located at 1000 Gulfway Drive in Port Arthur,Texas. The purpose of the subsurface investigation is to determine, from selected laboratory analyses, if a release at the portion of the site which formerly contained the KCS Engine 503 is subject to the Texas Risk Reduction Program (TRRP). This Limited Phase II ESA is based on review of remediation and sampling reports provided by others, review of the July 23, 2018 response from Texas Commission on Environmental Quality(TCEQ) after review of said data, and conversations with TCEQ. Berg•Oliver Associates, Inc. hereby proposes to perform the listed environmental services for the benefit of City of Port Arthur do Soutex Surveyors and Engineers to determine the presence or absence of the hazardous materials by test methods listed, and for the proposed fee(s) shown, on Attachment"A"found at the back of this agreement. BERG*OLIVER ASSOCIATES,INC BOA No.367-10988H-P2 Opportunity No.18-03377 DESCRIPTION OF TASKS The objective of the Limited Phase II Site Investigation is to identify, to the extent feasible, the presence or absence of selected specific materials, which may be listed by the Environmental Protection Agency, Texas Commission on Environmental Quality, Texas Railroad Commission, or other government agency, as hazardous or toxic materials or petroleum products. The Limited Phase II Site Investigation will have four components,described as follows: 1. Determination of materials and substances to be tested: Previous soil removal, characterization sampling, confirmation sampling, and waste disposal related to a small fuel release in the KCS Engine 503 tender area was conducted during the 2°d quarter of 2018. In a July 23, 2018 response to submission of this data, TCEQ requested that the City of Port Arthur re-evaluate the existing information and submit reports required under TRRP, OR re-valuate the existing information and perforin additional investigation (if needed) to demonstrate that the release is not subject to TRRP. After reviewing the previous data, BOA has determined that four (4) soil confirmation samples from the area of the former train tender slightly exceed the TRRP Tier 1 Residential Critical PCL/Texas Specific Background Concentration of 15 mg/kg lead, and one (1) soil sample slightly exceeds the TRRP Tier 1 Residential Critical PCL/Texas Specific Background Concentration of 0.040 mg/kg mercury. Previous analytical data also indicates exceedances of the TRRP Tier 1 Residential Critical PCLs for lead and arsenic in soils at the former engine location. Although confirmation sampling in this area indicates soils remaining in place meet TRRP Tier 1 residential use PCLs,the previous exceedances in this area must be addressed to determine whether the release is subject to TRRP. The scope of work is based on the guidance document "Determining Which Releases are Subject to TRRP"(Revised November 2010)and will require sampling and analysis of soil samples for SPLP lead (4 samples) and SPLP mercury (1 sample). Since the GwSoilmg PCL was exceeded for these analytes, groundwater sampling and analysis for total lead, total arsenic, and total mercury will also be required. The scope of work also includes completion of the Tier 1 Ecological Exclusion Criteria Checklist. 2. Securing of Test Samples: Soil borings will be installed utilizing direct push technology (DPT). BOA proposes to advance one (1) soil boring each at the previous confirmation sampling locations in the former tender area. Borings will be advanced to the fill/native soil interface and a sample collected at each location and a sample collected from the top of the native soils. BOA will advance one (1) soil boring at the location of the former confirmation sample from the former engine area. Borings will be advanced to the fill/native soil interface and a sample collected from the top of the native soils. A two-inch permanent monitoring well will also be constructed between the two BERG*OLIVER ASSOCIATES,INC BOA No.367-10988H-P2 Opportunity No.18-03377 affected areas. The well will be installed utilizing 2" slotted PVC and PVC riser, grouted, and completed with manway and concrete pad. The well will be properly purged and developed prior to sampling. Boring locations, with the exception of the monitor well, will plugged to the surface with bentonite at the completion of field activities, and patches applied to any concrete penetrations. The locations of the borings will be determined in the field, and will be recorded using a portable GPS unit to allow precise mapping. Field sample determination for soil tests or composites will be conducted by the on-site Berg♦Oliver field supervisor, field engineer, or geologist. Costs for this proposal do NOT include transportation and disposal of investigation derived waste(IDW). IDW(if any)will be drummed and left on-site. 3. Analytical Testing: Samples secured during soil sampling events will be properly preserved, and taken to an accredited laboratory for laboratory analysis for suspected contaminants. All samples will be properly contained and sealed for transport to the selected laboratory along with complete Chain of Custody forms. 4. Analytical Results and Site Investigation Report: The results of analytical tests will be reflected in a Site Investigation Report(SIR). Findings will be compared to acceptable levels of contaminants to determine if concentrations appear to exceed published human health and safety concentrations(PCLs). 5. Exclusions: Unless indicated otherwise on Attachment"A",the scope of work does not involve the setting of groundwater monitoring wells, preparation of potentiometric surface maps,or plume concentration mapping since a higher level of subsurface analysis is required. If indicated from test results, a more comprehensive subsurface analysis may be recommended under a separate contract. TERMS AND CONDITIONS Berg♦Oliver Associates, Inc. proposes to provide the Limited Phase II Site Investigation according to the scope of work herein described, to the client for the sum(s) set forth in Attachment A and subject to the General Conditions set forth in Attachment B. This proposal is valid for thirty(30) days from the date of its submission to the client. Barring no unusual or unforeseen delays, the estimated delivery of the completed and bound report will be approximately thirty (30) calendar days from the date of the authorization described below. Third party rush charges, if incurred, will be added to the amounts due at actual cost. Payment for the study will be due within ten(10) days of the receipt of the completed report and invoice. BERG*OLIVER ASSOCIATES,INC. BOA No.367-10988H-P2 Opportunity No. 18-03377 CONFIDENTIALITY OF ASSESSMENT The Limited Phase II Site Investigation and the results of all investigative work performed by Berg•Oliver Associates, Inc. are confidential. Upon acceptance and execution of this proposal/agreement, Berg•Oliver Associates, Inc. will be employed by the client and, under such employment, all correspondence, written or verbal, by Berg♦Oliver Associates, Inc., which relates to the fmdings of this study are, to the extent allowable by law, strictly confidential. No fmdings or results will be offered to any third party, including government agencies, except if required by legal order,without prior permission of the client. If instructed by the client or its authorized agent, either in writing or verbally, Berg♦Oliver Associates, Inc. will provide the results of the study to one, or more, recipients as designated by the client. The final report will be submitted in pdf format. One file copy of the fmal report will be maintained in secure files at the offices of Berg♦Oliver Associates, Inc. If paper report copies are requested, they will be provided at a cost of seventy-five dollars($75.00)each,or cost plus twenty(20%)percent,whichever is greater. AUTHORIZATION The Limited Phase II Site Investigation will be authorized upon the execution of this proposal by the client or by an authorized signatory of the client. If the client is a Corporation or a Partnership then the signature below will also represent the personal guarantee of the individual signing on behalf of the Client. By signature below, the client grants permission for Berg*Oliver Associates, Inc.personnel to enter the property as necessary to conduct this study. EXECUTED this day of ,2018 City of Port Arthur do Soutex Surveyors and Engineers "Client" By: Authorized Signature BERG♦OLNER ASSOCIATES,INC. By: Chris Thayer, Senior Associate BERG*OLIVER ASSOCIATES,INC BOA No.367-10988H-P2 Opportunity No.18-03377 ATTACHMENT A BOA Project Number 10839H-P2 CLIENT: City of Port Arthur do Soutex Surveyors and Engineers 3737 Doctors Drive Port Arthur,Texas 77642 AUTHORIZED Mr. George Newsome REPRESENTATIVE PROJECT NAME Bryan Park KCS Engine 503 1000 Gulfway Drive LOCATION Port Arthur,Jefferson County,Texas NUMBER OF Four(4)soil samples SAMPLES One(1)groundwater sample ANALYTICAL SPLP lead by SW-846 Methods 1312/6020 LAB TESTS* SPLP mercury by SW-846 Methods 1312/7470 Total arsenic,lead, and mercury by SW-846 Method 6020 COST PROPOSAL Berg♦Oliver Associates, Inc. proposes to provide the Limited Phase II Site Investigation for this project, according to the scope of work, terms and conditions set forth in the agreement, for a lump sum price of: Ten Thousand Eight Hundred Sixty($10,860.00)Dollars* ACCEPTED: Initial of Client * This lump sum amount includes 37 hours of Project Management time. If any extraordinary circumstances are encountered during the Phase II work,they will be discussed with the client. If the circumstances require more than a total of 37 hours of project management time,the extra hours will be billed as additional services,based on the attached rate schedule, and will not exceed 10% ($1,086.00) without written approval from the client. Proposed costs include standard turnaround time from the analytical laboratory. ATTACHMENT B PROJECT: 10988H-P2 BERG•OLIVER ASSOCIATES,INC. CLIENT:City of Port Arthur do Soutex Surveyors&Engineers GENERAL CONDITIONS FOR SERVICES-EXHIBIT These General Conditions are a part of each agreement between Berg•Oliver Associates, Inc. and its client for the performance of services. Berg•Oliver Associates, Inc. is identified as "BOA". The party for whom the services are performed is identified as "Client",and the written agreement between the parties,including these General Conditions,is called"this Agreement". Article 1:Services by BOA 1.1 Scope of services; standard of care. BOA will perform the services expressly described in this Agreement and in any work release documents or change orders, which are issued under this Agreement and signed by both parties. The services performed by BOA will be conducted in a manner consistent with the degree of care and skill ordinarily exercised by reputable companies performing the same or similar services in the same locale acting under similar circumstances and conditions. 1.2 Restoration. BOA will exercise reasonable care to minimize damage to the site. However, Client acknowledges that some damage may occur in the normal course of performing the services, even if due care is exercised,and agrees that BOA will not be liable for such damage and will be entitled to additional compensation if it is asked to perform restoration services not expressly included in the scope of services. 1.3 Reports and Investigations. If BOA's performance of the services includes assessment, identification, or testing services,the number of investigations and observations BOA makes,the number of samples it collects,and the number of tests it performs,are necessarily limited by budgetary and time constraints,and observations and samples by their specific locational nature may not exactly represent similar samples or observations in the immediate vicinity. BOA does not guarantee that all violations,problems,or sources of possible contamination will be identified,that all contaminants will be detected or properly identified,or that requirements,standards,or conditions will not change over time. Any report issued by BOA will set forth its findings and conclusions based on the limited information available from the observations,investigations,sampling,and/or testing conducted under this Agreement. In preparing its report, BOA may review and interpret information provided by Client and third parties and will be entitled to rely on the accuracy of such information,including laboratory results,without performing an independent verification. BOA may include in its report a Statement of Limitations describing the limitations of its investigations and findings and indicating that the report is for Client's use only and will not be relied upon by any third party, except as expressly agreed in writing by BOA,and then only at such third party's own risk. 1.4 Documents. All reports and documents prepared and deliverable to Client pursuant to this Agreement will become Client's property upon full payment to BOA. BOA may retain file copies of such deliverables. All other reports,notes,calculations, data,drawings,estimates,specifications, and other documents and computerized materials prepared by BOA are instruments of BOA's services and will remain BOA's property. All deliverables provided to Client are for Client's use only for the purposes disclosed to BOA, and Client will not transfer them to others or use them or permit them to be used for any extension of the services or any other project or purpose, without BOA's express written consent. 1.5 Services not included. Unless expressly included in the scope of services,BOA's services will not include (a)the detection,removal,treatment,transportation,disposal, monitoring,or remediation of any contamination of soil or groundwater at the site by petroleum or petroleum products (collectively called "oil") or hazardous, toxic, radioactive, or infectious substances, including any substances regulated under RCRA or any other federal, state, or local environmental laws, regulations, statutes, rules, standards, or ordinances (collectively called "Hazardous Materials"), (b) mechanical compaction of backfill, (c) dewatering before installation or filling tanks with liquid or ballast following installation, (d) pump-out or disposal of product, water, or other contents from existing tanks, (e) installation of anchor systems, foundations, shoring,or other support devices, or(f)concrete, blacktop, water, sewer, electricity, or other outside services. BOA will be entitled to additional compensation if it is asked to perform or provide such services. BOA will not be responsible for damage to or imperfections in any concrete slabs it installs unless they are protected by Client from traffic for seven days. 1.6 Estimates. Any estimates of probable construction or implementation costs,financial evaluations,feasibility studies,or economic analyses prepared by BOA will represent its best judgement based on its experience and available BERG*OLIVER ASSOCIATES,INC information. However,Client recognizes that BOA has no control over costs of labor,materials,equipment,or services furnished by others or over market conditions or contractors'methods of determining prices. Accordingly,BOA does not guarantee that proposals, bids, or actual costs will not vary from opinions, evaluations, or studies submitted by BOA. 1.7 Other Contractors. Except to the extent expressly agreed in writing, BOA will not have any duty or authority to direct, supervise, or oversee any contractors of Client or their work or to provide the means, methods,or sequence of their work or to stop their work. BOA's services and/or presence at a site will not relieve others of their responsibility to Client or to others. BOA will not be liable for the failure of Client's contractors or others to fulfill their responsibilities,and Client agrees to indemnify,hold harmless and defend BOA against any claims arising out of such failures. 1.8 Litigation support. BOA will not be obligated to provide expert witness or other litigation support related to its services, unless expressly agreed in writing. In the event BOA is required to respond to a subpoena, government inquiry,or other legal process related to the services in connection with a proceeding to which it is not a party,Client will reimburse BOA for its costs and compensate BOA at its then standard rates for the time it incurs in gathering information and documents and attending depositions,hearings,and the like. 1.9 Warranty. If manufactured products are purchased by BOA and furnished to Client or incorporated into the work, BOA will assign to Client any warranties provided by the manufacturer,to the extent they are assignable, and Client's sole resource will be against the manufacturer. NO FURTHER WARRANTIES OR GUARANTIES, EXPRESS OR IMPLIED,ARE MADE WITH RESPECT TO ANY GOODS OR SERVICES PROVIDED UNDER THIS AGREEMENT, AND ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE ARE EXPRESSLY DISCLAIMED. Full risk of loss of materials and equipment furnished by BOA will pass to Client upon their delivery to Client's premises,and Client will be responsible for protecting them against theft and damage. However,until BOA is paid in full,it will retain title for security purposes only and the right to repossess the materials and equipment. Article 2:Responsibilities of Client 2.1 Client requirements. Client,to the best of their ability,without cost to BOA,will: (a) Designate to BOA a person to act as Client's representative; (b) Provide or arrange for access and make all provisions for BOA to enter any site where services are to be performed; (c) Furnish BOA with all reasonably available information pertinent to the services; (d) Furnish BOA with a legal description of the site and all available surveys,site plans,and relevant information about site conditions,topography, boundaries,easements,zoning, land use restrictions, and right-of-ways, if available and as needed; (e) Furnish BOA with all approvals, permits, and consents required for performance of the services except for those BOA has expressly agreed in writing to obtain; (f) Notify BOA promptly of all known or suspected Hazardous Materials at the site,of any contamination of the site by Oil or Hazardous Material, and of any other conditions requiring special care,and provide BOA with any available documents describing the quantity,nature,location,and extent of such materials,contamination, or conditions; (g) Comply with all laws and provide any notices required to be given to any government authorities in connection with the services,except for such notices BOA has expressly agreed in writing to give; (h) Before commencement of any drilling or excavation at a site,furnish BOA with a complete description(to the best of their ability)of all underground objects and structures at the site, including but not limited to wells, tanks,and utilities; and indemnify,hold harmless,and defend BOA against claims arising out of damages to underground objects or structures not properly defined; (i) Provide BOA with information concerning prior owners of the site and any current or historical uses of or activities on the site by Client,prior owners,or others,as needed; (j) Furnish to BOA any known contingency plans related to the site; (k) Furnish to BOA any previous environmental audits and/or assessments related to the site. 2.2 Hazards. Client represents and warrants that it does not have any knowledge of Hazardous Materials or Oil, BERG♦OLIVER ASSOCIATES,INC or unusually hazardous conditions at the site or of contamination of the site by Oil or Hazardous Materials except as expressly disclosed to BOA in writing. 2.3 Confidentiality. Client acknowledges that the technical and pricing information contained in this Agreement is confidential and proprietary to BOA and agrees not to disclose it or otherwise make it available to others without BOA's express written consent. 2.4 Health and safety. Client acknowledges that it is now and will at all times remain in control of the project site. Except as expressly provided herein, BOA will not be responsible for the adequacy of the health or safety programs or precautions related to Client's activities or operations, Client's other contractors, the work of any other person or entity, or Client's site conditions. BOA will not be responsible for inspecting, observing, reporting, or correcting health or safety conditions or deficiencies of Client or others at Client's site. So as not to discourage BOA from voluntarily addressing health or safety issues while at Client's site,in the event BOA does address such issues by making observations, reports, suggestions, or otherwise, BOA will nevertheless have no liability or responsibility arising on account thereof. For separate consideration of$10 and other good and valuable consideration, the receipt and adequacy of which are hereby acknowledged. Client agrees to indemnify,hold harmless,and defend BOA to the fullest extent permitted by law against any and all claims arising out of such programs, activities, conditions, or deficiencies unless BOA is responsible for gross negligence with regard to its work. Article 3:Changes;Delays;Excused Performance 3.1 Changes. Unless this Agreement expressly provides otherwise,BOA's proposed compensation represents its best estimate of the costs, effort, and time it expects to expend in performing the services based on its reasonable assumption of the conditions and circumstances under which the services will be performed including,but not limited to,those stated in Section 3.2. As the services are performed,conditions may change or circumstances outside BOA's reasonable control (including changes of law) may develop which would require BOA to expend additional costs, effort, or time to complete the services, in which case BOA will notify Client, and an equitable adjustment will be made to BOA's compensation and the time for performance. In the event conditions or circumstances require the services to be suspended or terminated, BOA will be compensated for services previously performed and for costs reasonably incurred in connection with the suspension or termination. 3.2 Assumptions. Unless specified in writing,BOA's compensation is based on the assumption that(a)there is no contamination of soil or groundwater at the site by Oil or Hazardous Materials which has not been disclosed to BOA by Client, (b) BOA will not encounter any underground structures, utilities, boulders, rock, water, running sand, or other unanticipated conditions in the course of drilling or excavation,(c)tank installations will not require dewatering by BOA, and (d) if BOA's scope of services includes services related to petroleum facilities or storage tanks, groundwater will not cause tanks to float or require the use of Ballast. BOA will be compensated for any additional efforts expended or costs incurred in addressing such conditions. 3.3 Force majeure. BOA will not be responsible for any delay or failure of performance caused by fire or other casualty, labor dispute, government or military action, transportation delay, inclement weather, Act of God, act or omission of Client or its contractors, failure of Client or any government authority to timely review or to approve the services or to grant permits or approvals, or any other cause beyond BOA's reasonable control. In the event of such delay or failure,the time for performance will be extended by a period equal to the time lost plus a reasonable recovery period,and the compensation will be equitably adjusted to compensate for any additional costs BOA incurs due to any such delay. 3.4 Disputes. If any claim or dispute arises out of this Agreement or its performance, the parties agree to endeavor in good faith to resolve it equitably through negotiation or,if that fails,through nonbinding mediation under the rules of the American Arbitration Association,before having recourse to the courts. However,prior to or during negotiation or mediation, either party may initiate litigation that would otherwise become barred by a statute of limitation,and BOA may pursue any property liens or other rights it may have to obtain security for the payment of its invoice. Article 4:Compensation 4.1 Rates. Unless otherwise agreed in writing,BOA will be compensated for its services at its standard rates and will be reimbursed for costs and expenses(plus reasonably profit and overhead)reasonably incurred in its performance BERG♦OL/VER ASSOCIATES,INC. of the services. 4.2 Invoices. BOA may invoice Client on a monthly or other progress billing basis. Invoices are due and payable upon receipt by Client. On amounts not paid within 30 days of invoice date,Client will pay interest from invoice date until payment is received at the lesser of 1.5%per month or the maximum rate allowed by law. If Client disagrees with any portion of an invoice,it will notify BOA in writing of the amount in dispute and the reason for its disagreement within 21 days of receipt of the invoice,and will pay the portion not in dispute. 4.3 Suspension, etc. BOA may suspend or terminate the services at any time if payment is not received when due and will be entitled to compensation for the services previously performed and for costs reasonably incurred in connection with the suspension or termination. 4.4 Collection. Client will reimburse BOA for BOA's costs and expenses (including reasonable attorneys' and witnesses'fees)incurred for collection under this Agreement. 4.5 Taxes,etc. Except to the extent expressly agreed in writing,BOA's fees do not include any taxes, excises, fees, duties, or other government charges related to the goods or services provided under this Agreement, and Client will pay such amounts or reimburse BOA for any amounts it pays. If Client claims that any goods or services are subject to a tax exemption or direct payment permit, it will provide BOA with a valid exemption or permit certificate and indemnify,defend,and hold BOA harmless from any taxes,costs,and penalties arising out of the use or acceptance of same. Article 5:Insurance and Allocation of Risk 5.1 Insurance. During the performance of the services,BOA will maintain the following insurance: Workers'Compensation Statutory Employers'Liability $1,000,000 each accident Commercial General $1,000,000 per occurrence&aggregate Automobile Liability $1,000,000 per occurrence&aggregate Professional Liability $1,000,000 per claim&aggregate Insurance certificates will be furnished upon request. 5.2 Client indemnification. For separate consideration of$10 and other good and valuable consideration, the receipt and adequacy of which is hereby acknowledged, Client agrees to indemnify, hold harmless, and defend BOA from and against any and all liabilities,demands,claims,fines,penalties,damages,forfeitures,and suits,together with reasonable attorneys'and witness'fees and other cost and expenses of defense and settlement, which BOA may incur, become responsible for,or pay out as a result of death or bodily injury or threat thereof to any person,destruction,or damage to any property,contamination of or adverse effect on natural resources or the environment,any violation of local,state or federal laws,regulations or orders,or any damages claimed by third parties(collectively,"Damages")to the extent arising in whole or in part out of Client's violation of law or breach of this Agreement or out of the negligence or willful misconduct of Client,its other contractors,agents,suppliers,or employees. 5.3 BOA indemnification. For separate consideration of$10 and other good and valuable consideration, the receipt and adequacy of which is hereby acknowledged,and subject to the limitations set forth in paragraph 5.4,BOA agrees to indemnify,hold harmless,and defend Client from and against any and all liabilities, demands,claims, fines, penalties, damages, forfeitures and suits, together with reasonable attorneys' and witness' fees and other costs and expenses of defense and settlement,which Client may incur,become responsible for or pay out as a result of death or bodily injury or threat thereof to any person,destruction or damage to any property,contamination of or adverse effect on natural resources or the environment, any violation of local, state or federal laws, regulations or orders, or any damages claimed by third parties (collectively, "Damages") to the extent arising in whole or in part out of BOA's violation of law or breach of this Agreement or out of the negligence or willful misconduct of BOA, its other contractors,agents,suppliers,or employees. 5.4 Limitation of liability. BOA's aggregate liability for any and all claims arising out of this Agreement or out of any goods or services furnished under this Agreement,whether based in contract,negligence,strict liability,agency, warranty,tort,trespass,or any other theory of liability,will be limited to$10,000 or the total compensation received by BOA from Client under this Agreement, whichever is the lesser. In no event will BOA be liable for special,indirect, incidental, or consequential damages,including commercial loss, loss of use, or lost profits, however caused, even if BOA has been advised of the possibility of such damages. Any claim will be deemed waived unless made by Client in BERG♦OLIVER ASSOCIATES,INC writing and received by BOA within one year after completion of the services with respect to which the claim is made. 5.5 Employee injury. Client agrees not to impede or to bring an action against BOA based on any claim or personal injury or death occurring in the course or scope of the injured or deceased person's employment with BOA and related to the services performed under this Agreement. 5.6 Defense. Any defense of BOA required to be provided by Client under this Agreement will be with counsel selected by BOA and reasonably acceptable to Client. Article 6:Hazardous Materials Provisions 6.1 Hazardous Materials. Except to the extent expressly agreed in writing, BOA's services do not include directly or indirectly performing or arranging for the detection,monitoring, handling,storage,removal,transportation, disposal, or treatment of petroleum or petroleum products (collectively called "Oil") or of any hazardous, toxic, radioactive, or infectious substances, including any substances regulated under RCRA or any other federal or state environmental laws(collectively called"Hazardous Materials"). The discovery or reasonable suspicion of Hazardous Materials or hazardous conditions at a site where BOA is to perform services or of contamination of the site by Oil or Hazardous Materials not previously disclosed to BOA in writing will entitle BOA to suspend its services immediately, subject to mutual agreement of terms and conditions applicable to any further services,or to terminate its services and to be paid for services previously performed. In no event will BOA be required or construed to take title,ownership,or responsibility for such Oil or Hazardous Materials. 6.2 Manifests. hi the event that the scope of services includes the remediation of any Oil or Hazardous Materials, before BOA removes from a site any Oil or Hazardous Materials, Client will sign any required waste manifests in conformance with all DOT and other government regulations,listing Client as the generator of the waste. If someone other than Client is the generator of the waste,Client will arrange for such other person to sign such manifests. BOA will not directly or indirectly assume title to or own or be deemed to possess any materials handled or removed form any site, including Oil or Hazardous Materials. Nothing in this Agreement will be construed to make BOA a "generator"as defined in RCRA or any similar laws governing the treatment, storage, or disposal of waste. Except to the extent BOA's responsibilities expressly include identification of the waste, Client will provide waste material profiles,which accurately characterize the waste. If the services include transportation of Hazardous Materials or Oil, BOA may evaluate and recommend possible disposal sites for Client's use. However,under RCRA and CERCLA,the client,as generator,has ultimate responsibility for selection of the disposal site. Client acknowledges and agrees that it will evaluate and select the proper disposal site and be solely responsible therefore. 6.3 Hazardous Materials indemnification. Client acknowledges that BOA does not have any responsibility for preexisting Oil and Hazardous Materials at the site, any resultant contamination there from, or, except as expressly agreed in writing, for previous detection, monitoring, handling, storage, transportation, disposal, or treatment, that BOA's compensation is not commensurate with the unusually high risks associated with such materials, and that insurance is not reasonably available to protect against such risks. Therefore, for separate consideration of$10 and other good and valuable consideration,the receipt and adequacy of which are hereby acknowledged,and in addition to the indemnification provided in Section 5.2, Client agrees to indemnify, hold harmless, and defend BOA against all damages arising out of or related to Oil or Hazardous Materials located at or removed from the site,including damages such as the cost of response or remediation arising out of application of common law or statues such as CERCLA or other"Superfund"laws imposing strict liability. Article 7:Miscellaneous Provisions 7.1 Confidential information. Although BOA generally will not disclose without Client's consent information provided by Client or developed by BOA in the course of its services and designated by Client as confidential(but not including information which is publicly available,is already in BOA's possession,or obtained form third parties),BOA will not be liable for disclosing such information if it in good faith believes such disclosure is required by law or is necessary to protect the safety, health, property, or welfare of human beings. BOA will advise Client (in advance, except in emergency)of any such disclosure. 7.2 Notices. Notices between the parties will be in writing and will be hand delivered or sent by certified mail or acknowledged telefax properly addressed to the appropriate party. 7.3 Assignment, etc. Neither the Client nor BOA will assign or transfer any rights or obligations under this BERG'OLIVER ASSOCIATES,INC Agreement,except that BOA may assign this Agreement to its affiliates and may use subcontractors in the performance of its services. Nothing contained in this Agreement will be construed to give any rights or benefits to anyone other that the Client and BOA, without the express written consent of both parties. The relationship between Client and BOA is that of independent contracting parties,and nothing in this agreement or the parties'conduct will be construed to create a relationship of agency,partnership,or joint venture. 7.4 Governing law and Headings. This Agreement will be governed by and construed in accordance with the laws of the State of Texas.The headings in this Agreement are for convenience only and are not a part of the agreement between the parties. 7.5 Entire agreement. This Agreement supersedes all prior agreements and, together with any work release document issued under this Agreement and signed by both parties,constitutes the entire agreement between the parties. Any amendments to this Agreement will be in writing and signed by both parties. In no event will the printed terms on any purchase order,work order,or other document provided by Client modify or amend this Agreement, even if it is signed by BOA,unless BOA signs a written statement expressly indicating that such terms supersede the terms of this Agreement. In the event of an inconsistency between these General Conditions and any other writings,which comprise this Agreement,the other writings will take precedence. 7.6 Survival. All obligations arising prior to this Agreement and all provisions of this Agreement allocating responsibility or liability between the parties will survive the completion of the services and the termination of this Agreement. BERG*OLIVER ASSOCIATES,INC t, G °<,�F BERG • OLIVER ASSOCIATES, INC. Environmental Science&Land Use Consultants 14701 St. Mary's Lane, Suite 400 **y,,?0® E`�v Houston, Texas 77079 if%1'• (281) 589-0898 fax: (281) 589-0007 2018 PERSONNEL RATE SCHEDULE . Personnel Hourly Billing Rate Project Director/Principal $195.00 Senior Associate $180.00 Professional Engineer $170.00 Project Manager/Registered Environmental Manager $165.00 Professional Geologist $160.00 Health/Safety Officer/Chemist $160.00 Project Coordinator $150.00 Wetlands Biologist/Ecologist $130.00 Soil Scientist/Geologist $125.00 Senior GIS Analyst $125.00 GIS Analyst $110.00 Field Technician $85.00 In-House Technician/Administrator $80.00 CADD Sr. Analyst $110.00 CADD Analyst $80.00 Administrative/Word Processing $65.00 Specialist Subcontractors Cost+ 15% Above rates include all normal expenses of BOA's business, including mailing charges, in-house photocopying, long distance telephone costs,in-house graphic systems,and local area travel,unless otherwise stated in the agreement. Expenses,such as travel beyond fifty(50)miles,outside photocopying,delivery charges,photographic reproduction,and other outside services,are considered reimbursable by the client at rate of cost +15%. Any extraordinary reimbursable expenses, in excess of$250.00 must have authorization from the client. NOTE: The rate schedule is for the current fiscal year,with an effective date of January 1. Hourly rates are adjusted annually as inflation dictates. If this contract spans more than one fiscal year(ending December 31),hourly rates may be adjusted. Regardless of any rate adjustment,the"not to exceed"figures in a contract will not change. EXHIBIT "B" Bryan W.Shaw,Ph.D.,P.E.,Chairman ,ip.TE Toby Baker, Commissioner cy G��" Jon Niermann, Commissioner 'Ql a a Stephanie Bergeron Perdue,Interim Executive Director TEXAS COMMISSION ON ENVIRONMENTAL QUALITY Protecting Texas by Reducing and Preventing Pollution July 23, 2018 Ms.Val Tizeno City Attorney P.O. Box 1089 Port Arthur,Texas 77641 Re: TCEQ Acknowledgment of Receipt of Follow-up Spill Reports and Notice to Close and/or Remediate Using the Texas Risk Reduction Program (TRRP) Release Associated with Engine 503&Tender at Bryan Park 1000 Gulfway Drive, Port Arthur,Jefferson County TCEQ Site Id: T3445, CN600132o21, RN10138T744 Dear Ms.Tizeno: The Texas Commission on Environmental Quality(TCEQ)is in receipt of supporting information submitted by City of Port Arthur to address closure/remediation of the above referenced release. Please note the TCEQ Region 10 Office in Beaumont referred the above referenced release case and supporting information submitted by City of Port Arthur to our office for formal review on July 12, 2018 as appropriate closure and/or remediation activities associated with this release has been documented to exceed 180 days. Please note that City of Port Arthur is required to demonstrate closure and/or remediation activities associated with this release in accordance with the TCEQ's Texas Risk Reduction Program(TRRP)of 3o Texas Administrative Code(TAC) Chapter 350. The supporting information submitted by City of Port Arthur,with respect to the above- referenced release, does not address specific closure and/or remediation objectives of TRRP to achieve final closure/remediation of this spill or conform to the basic reporting requirements of either TRRP Remedy Standard A or B. The City of Port Arthur will be required to re-evaluate the existing information and submit the required reports in response to demonstrate compliance with either 3o TAC§350.32 for Remedy Standard A or 3o TAC§350.33 for Remedy Standard B for this release case. This letter does not grant approval of any technical information pertaining to plans,proposals, or procedures that you may have submitted in addition to the information required by 3o TAC §350. However, it provides notice to proceed with assessment activities. Upon completion of the assessment one of the following Remedy Standards must be selected: According to 3o TAC §350.32(d), activities conducted to achieve Remedy Standard A do not require TCEQ approval prior to implementation;however,an Affected Property Assessment Report(APAR), any Response Action Effectiveness Reports(RAER),and the Response Action P.O.Box 13087 • Austin,Texas 78711-3087 • 512-239-1000 • tceq.texas.gov How is our customer service? tceq.texas.gov/customersurvey printed on recycled paper Ms.Val Tizeno Page 2 July 23, 2018 T3445 Completion Report(RACR) are subject to TCEQ technical review. Please use the standard reporting forms found at http://www.tceq.texas.gov/remediationftrrp/guidance.html. The guidance memo"Determining Which Releases are Subject to TRRP"(revised November 2010) may be used in lieu of submitting the TRRP required reports for Remedy Standard A. However,all requirements outlined in the memo must be addressed in full,or The City of Port Arthur will be required to submit all reporting for Remedy Standard A outlined above. In accordance with 3o TAC§350.33(d), Remedy Standard B is not a self-implementing standard. TCEQ written approval of the APAR and the Response Action Plan(RAP) must be obtained before commencing corrective action; however, interim corrective measures are authorized and required wherever necessary to protect human health and the environment. Standard reporting forms are available for Remedy Standard B at the web page referenced above. Reports documenting closure and/or remediation activities for this spill should be submitted according to the time frames provided in 3o TAC§350.31(e) and(f). In accordance with 3o TAC §350.31(d),the TCEQ Central Office and the appropriate TCEQ Regional Office must be notified in writing at least to days prior to any confirmation sampling that is done to demonstrate that a response action is complete and a remedy standard has been attained. More detailed information regarding TRRP is available on the TCEQ web page noted above. Please submit an APAR within 90 days from the date of this letter. The TCEQ looks forward to working with the City of Port Arthur. Please note that it is the continuing obligation of persons associated with a site to ensure that municipal hazardous waste and industrial solid waste are managed in a manner which does not cause the discharge or imminent threat of discharge of waste into or adjacent to waters in the state, a nuisance, or the endangerment of the public health and welfare as required by 30 TAC §335.4• Questions concerning this letter should be directed to me at(512) 239-2378.When responding by mail,please provide one paper copy and one electronic copy(on USB or disc) of all submittals. Note that the electronic and hard copies should be identical,complete copies. Ms.Val Tizeno Page 3 July 23, 2018 T3445 A Correspondence ID Form (TCEQ Form 20428) must accompany each document submitted to the Remediation Division, and should be affixed to the front of your submittal.The Correspondence ID Form helps ensure that your documents are identified correctly and are routed to the applicable program for a timely response. Sincerel , Mike uffin, P ., P.G. Team 1,VCP-CA Section Remediation Division Texas Commission on Environmental Quality MED/mdh cc: Ms. Marilyn Gates,Waste Section Manager, TCEQ Region io Office, Beaumont EXHIBIT "B" s.pr20481 AGREEMENT FOR INDEPENDENT PROFESSIONAL SERVICES That this Agreement is made between the City of Port Arthur. Texas hereinafter referred to as "City" and Berg - Oliver Associates, Inc. hereinafter referred to as the "Contractor." I. DURATION AND TERMINATION That this Agreement shall be for a sixty (60) day period from the date issued on the Notice to Proceed. Either party may terminate this Agreement upon thirty (30) days written notice without cause, or for cause by giving the other notice in writing five (5) days prior to termination. It is understood and agreed that if Contractor is incapable of performing the services described herein, all rights to further compensation under this Agreement are to be invalid. II. PROFESSIONAL SERVICES TO BE PERFORMED The Contractor agrees to review prior assessment documentation and conduct additional assessment activities, as needed to attain regulatory closure from the Texas Commission on Environmental Quality (TCEQ) for the Engine 503 & Tender (Train) at Bryan Park release (Site). The Contractor also agrees to perform all the work described in the proposal and contract documents and to comply with the terms therein. The Contractor shall comply with the ethical and professional code of the profession and the policies of the City of Port Arthur. (See scope of work and specific duties attached hereto as Exhibit "A") III. COMPENSATION Contractor shall be compensated for a sum of $10,860.00. Appropriate work related expenses, computer and facility access, as necessary for the effective performance of the required job duties, may be provided and/or reimbursed as determined appropriate by the City Manager. The Contractor shall safeguard all records, and maintain confidentiality of records and information encountered in the course and scope of his job duties. OTHER BENEFITS That all benefits resultant from this contract are delineated herein, and no other benefits promised by any City officer shall be binding on the City. IV. INDEMNITY It is understood and agreed that Contractor is independent contractor. The CITY hereby agrees to indemnify CONTRACTOR, to the extent permitted by law or the extent to which such coverage is available by law to CITY against any liability, claim, cause of action, which results in bodily injury or property damage to a third party arising out of or in connection with the services performed or to be performed by CONTRACTOR pursuant to this Agreement when CONTRACTOR is acting within the scope of his employment. V. PROFESSIONAL LIABILITY INSURANCE The City will provide legal services or pay an judgment rendered against Contractor for any suit or claim for bodily injury or property damage to a third party arising out of the performance of the Contractor's duties as outlined herein unless it is determined that said performance was the result of malfeasance or gross negligence. In no event will either party be liable to the other for consequential, incidental, punitive, special, or exemplary damages, including lost revenues, profits, delays, or other economic loss arising from any cause. Regardless of legal theory, Contractor shall be liable only to the extent that any damages specified herein are found by a final court of competent jurisdiction to have been the sole liability of Contractor. No employee or agent of Contractor shall have individual liability to City. Contractor's aggregate liability for any and all claims arising out of this Agreement or out of any goods or services furnished under this Agreement, whether based in contract, negligence, strict liability, agency, warranty, tort, trespass, or any other theory of liability, will be limited to $10,000 or the total compensation received by Contractor from City under this Agreement, whichever is the greater. VI. NONDISCRIMINATION The Contractor hereby agrees that no person shall, on the grounds of race, creed, color, handicap, national origin, sex, political affiliation, or beliefs, be excluded from, be denied the benefits of, or be otherwise subjected to discrimination as regards to any services or activity under this contract; and hereby gives assurance the Contractor will immediately take any measure necessaryto effectuateAgreement. VII. STATUTORY TERMS APPLICABLE TO STATE POLITICAL SUBDIVISIONS As required by Chapter 2270, Government Code, Contractor hereby verifies that it does not boycott Israel and will not boycott Israel through the term of this Agreement. For purposes of this verification, `boycott Israel'' means refusing to deal with, terminating business activities with, or otherwise taking any action that is intended to penalize, inflict economic harm on, or limit commercial relations specifically with Israel, or with a person or entity doing business in Israel or in an Israeli-controlled territory, but does not include an action made for ordinary business purposes. SIGNED AND AGREED TO on the day of September, 2018. BERG — OLIVER ASSOCIATES, INC. Chris Thayer, Senior Associate CITY OF PORT ARTHUR Harvey Robinson, Interim City Manager