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HomeMy WebLinkAboutPR 20775: AMENDMENT NO. 2 TO CONTRACT WITH BERG OLIVER ASSICIATES, INC.A Ciry Of , Texas www.PortArthurTx.gov INTEROFFICE MEMORANDUM Date: April 12, 2019 To: The Honorable Mayor and City Council Through: Rebecca Underhill, Assistant City Manager From: Chandra Alpough, Director of Parks and Recreation RE: P.R. 20775 — Amendment No. 2 to Contract with Berg Oliver Associates, Inc. Introduction: The intent of this Agenda Item is to request the City Council's approval for the City Manager to execute Amendment No. 2 to the contract between the City of Port Arthur and Berg Oliver Associates, Inc. of Houston, Texas for additional soil testing that is needed to attain regulatory closure from the Texas Commission on Environmental Quality (TCEQ) for the Engine 503 located at Bryan Park with the cost of additional soil samples at $2,851.00 and soil deposit fee of $400.00 for a new contract amount of $15,908.00. Background: Pursuant to Resolution No. 18-399, the City of Port Arthur entered into a contract for environmental services for the review of prior assessment activities as needed to attain regulatory closure form the Texas Commission Environmental Quality (TCEQ) for the Engine 503 and Tender (Train) at Bryan Park. Pursuant to Resolution No. 19-033, there was an amendment to the contract for an additional subsurface investigation at the site in order to collect additional soil samples. Additional soil samples are needed in order to determine the potential area of excavation that may be required at the portion of the site which formerly contained the KCS Engine 503 in order for the site to remain out of the Texas Risk Reduction Program (TRRP). Budget Impact: City will seek reimbursement from FEMA. These costs will be funded from the Hurricane Harvey Account Number 147-2300-91.54-00, Project Number 082617 "Remember, we are here to serve the Citizens of Port Arthur" P.O. Box 1089 X Port Arthur, Texas 77641-1089 X 409.983.8182 X FAX 409.983.8294 Recommendation: It is recommended that the City Council approve P. R. No. 20775 authorizing the City Manager to execute Amendment No. 2 to the contract between the City of Port Arthur and Berg Oliver Associates, Inc. of Houston, Texas for additional soil testing that is needed to attain regulatory closure from the Texas Commission on Environmental Quality (TCEQ) for the Engine 503 located at Bryan Park with the cost of additional soil samples at $2,851.00 and soil deposit fee of $400.00 for a new contract amount of $15,908.00 "Remember, we are here to serve the Citizens of Port Arthur" P.O. Box 1089 X Port Arthur, Texas 77641-1089 X 409.983.8182 X FAX 409.983.8294 P. R. # 20775 04/12/2019 ca "I *To7RMCiN10i1 A RESOLUTION AUTHORIZING THE CITY MANAGER TO EXECUTE AMENDMENT NO. 2 TO THE CONTRACT BETWEEN THE CITY OF PORT ARTHUR AND BERG OLIVER ASSOCIATES, INC. OF HOUSTON, TEXAS, FOR ADDITIONAL ENVIRONMENTAL ASSESSMENTS AT BRYAN PARK; INCREASING THE CONTRACT AMOUNT BY $3,251.00 FOR ADDITIONAL SOIL SAMPLES AND SOIL DEPOSIT FEE, TO A NEW CONTRACT TOTAL OF $15,908.00; FUNDING AVAILABLE IN HURRICANE HARVEY ACCOUNT NO. 147-2300-91.54-00, PROJECT NO. 082617 WHEREAS, on September 25, 2018, per Resolution No. 18-399, the City of Port Arthur entered 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 (TCEQ) for the Engine 503 and Tender (Train) at the Bryan Park release site; and, WHEREAS, pursuant to Resolution No. 19-033, there was an amendment to the contract for an additional subsurface investigation at the said site was needed to collect additional soil confirmation samples and 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); and, WHEREAS, Berg Oliver Associates, Inc. hereby proposes that an additional subsurface investigation at the said site is needed to collect additional soil samples and determine, from selected laboratory analysis, the potential area of excavation that may be required at the portion of the site which formerly contained the KCS Engine 503 in order for the site to remain out of the Texas Risk Reduction Program (TRRP) (attached hereto as Exhibit "A"); and, WHEREAS, the cost of the additional soil samples is $2,851.00 plus a $400.00 soil deposit fee; now therefore, P. R. # 20775 04/12/2019 ca 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 Manager of the City of Port Arthur is hereby authorized and directed to execute Amendment No. 2 to the contract with Berg Oliver Associates, Inc. by increasing the contract amount for additional soil samples in the amount of $2,851.00 and soil deposit fee of $400.00 for a new contract amount of $15,908.00. Section 3. That a copy of the caption of this Resolution be spread upon the Minutes of the City Council. READ, ADOPTED AND APPROVED THIS day of , A.D., 2019, at a Regular Meeting of the City Council of the City of Port Arthur, by the following vote: AYES: Councilmembers: Derrick Ford Freeman Mayor ATTEST: Sherri Bellard City Secretary P. R. # 20775 04/12/2019 ca APPROVED AS TO FORM: Val jffzev, Esq. City Attorney APPROVED AS TO ADMINISTRATION: Interim City Manager Chandra Alpough Director of Parks and Recreation APPROVED AS TO AVAILABILITY OF FUNDS: Interim Director oltinance kAdy Llssids Exhibit "A" Y March 29, 2019 BERG* OLIVER ASSOCIATES, INC. Environmental Science & Land Use Consultants 14701 St. Mary's Lane, Suite 400 Houston, Texas 77079 City of Port Arthur c/o Mr. George Newsome Soutex Surveyors and Engineers 3737 Doctors Drive Port Arthur, Texas 77642 Via email: GNewsome@gt.rr.com (281) 589-0898 fax: (281) 589-0007 Re: Proposal for Additional Delineation and/or Background Sampling Bryan Park 1000 Gulfway Drive Port Arthur, Texas BOA361-10988H-P2-2 Opportunity No. 18-03377CO2 Mr. Newsome, Berg -Oliver Associates, Inc. (BOA) is pleased to present this proposal for additional limited subsurface investigation at the referenced site, located at 1000 Gulfway Drive in Port Arthur, Texas. The purpose of the subsurface investigation is to collect additional soil samples and determine, from selected laboratory analyses, the potential area of excavation that may be required at the portion of the site which formerly contained the KCS Engine 503 in order for the site to remain out of the Texas Risk Reduction Program (TRRP). Concurrently, background samples for total lead will also be collected to determine if lead exceedances reported for this area are simply normal background concentrations for the site. 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, review of analytical data from BOA's November 14, 2018, and March 5, 2019 sampling events, and conversations with TCEQ. Berg*Oliver Associates, Inc. hereby proposes to perform the listed environmental services BERG #OLIVER ASSOCIATES, INC. BOA No. 367 -10988H -P2-2 Opportunity No. 18-03377CO2 T for the benefit of City of Port Arthur c/o 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. 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 conducted during the 2" d quarter of 2018, and TCEQ's July 23, 2018 response to submission of this data, were discussed in BOA's previous proposal (August 17, 2018). The scope of work included in that proposal was performed November 14, 2018. With the exception of SPLP lead concentrations in previous confirmation sample locations, soil and groundwater sample results from the November 14, 2018 sampling event indicate site conditions meet Tier 1 Residential Soil PCLs. Concentrations for SPLP lead results performed for that event indicate the so"GWi,g PCL has not yet been met. On March 5, 2019 BOA performed sampling and re -analysis of select samples for total lead. Results received indicate that samples from the east, west, and south walls of the previous excavation still contain lead concentrations in exceedance of the so"GWi,g PCL. The purpose of this round of sampling is to: 1) provide delineation of the lead -affected area should additional excavation be necessary, and; 2) establish background lead concentrations for the site by sampling unaffected areas of the property to determine if the previously reported lead concentrations are within normal, naturally occurring concentrations for the site. 2. Securing of Test Samples: Soil borings will be installed utilizing a hand auger. BOA proposes to advance a total of twenty five soil borings across the site. Borings will be advanced to the approximate depth of the excavation's fill/native soil interface and a sample collected at each location. A second sample may be collected from a different depth interval at select boring locations and "held" at the lab for potential future analysis. 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 (EDW). IDW (if any) will be drummed and left on-site. BERG #OLH ER ASSOCL4TES, INC. BOA No. 367 -10988H -P2-2 Opportunky No. 18-03377CO2 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. 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 findings of this study are, to the extent allowable by law, strictly confidential. No findings 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 BERG #OLIVER ASSOCIATES, INC. BOA No. 367 -10988H -P2-2 Opportunity No. 18-03377CO2 more, recipients as designated by the client. The final report will be submitted in pdf format. One file copy of the final 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 2019 City of Port Arthur c/o Soutex Surveyors and Engineers "Client" Authorized Signature BERG* OLIVER ASSOCIATES, INC. M Chris Thayer, Senior Associate BERG ♦OLIVER ASSOCIATES, INC. BOA No. 367 -10988H -P2-2 Opportunity No. 18-03377CO2 ATTACHMENT A BOA Project Number 10839H -AS CLIENT: City of Port Arthur c/o 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 Twenty five (25) soil samples SAMPLES ANALYTICAL Total lead by SW -846 Methods 6010/6020 LAB TESTS* pH COST PROPOSAL Berg* Oliver Associates, Inc. proposes to provide the Limited Phase R 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: Two Thousand Eight Hundred Fifty One ($2,851.00) Dollars * ACCEPTED: Initial of Client * This lump sum amount includes 7 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 12 hours of project management time, the extra hours will be billed as additional services, based on the attached rate schedule, and will not exceed 100/a ($285.10) without written approval from the client. Proposed costs include standard tumaround time from the analytical laboratory. ATTACHMENT B PROJECT: 10988H -P2-2 BERG* OLIVER ASSOCIATES, INC. CLIENT: City of Port Arthur c/o 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 wbom 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 partes 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 ASSOCL4TES, INC. information. However, Client recognizes that BOA has no control over costs of labor, materials, equipment, or services ftunished 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 (mown 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; 0) 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. 23 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. 33 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 ♦OLIVER 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 famished 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. In 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 protea 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 protea 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. 73 Assignment, etc. Neither the Client nor BOA will assign or transfer any rights or obligations under this BERG #OLIVER ASSOCL4TES, 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, orjoint 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. BERG • OLIVER ASSOCIATES, INC. 0 9 Environmental Science & Land Use Consultants 14701 St. Mary's Lane, Suite 400 9 Ee� Houston, Texas 77079 (281) 589-0898 fax: (281) 589-0007 2019 PERSONNEL RATE SCHEDULE Personnel Hourly Billine 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 +1501& 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 maybe adjusted. Regardless of any rate adjustment, the "not to exceed" figures in a contract will not change.