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HomeMy WebLinkAboutPR 14334:ARCENEAUX & GATES INV.interoffice MEMORANDLR To: Mayor, City Council, and City Manager From: Mark T. Sokolow, City Attorney ~ ~ Date: August 24, 2007 Subject: P. R. No. 14334; Council Meeting of August 28, 2007 Attached is P. R. No. 14334 approving an invoice in the amount of $3,750 from Arceneaux and Gates to the City of Port Arthur Section 4A Economic Development Corporation for a Wetlands Study and authorizing an additional $3,750 upon completion of the wetlands study. MTS:gt Attachment z.pr14334.memo RESOLUTION NO. P. R. No. 14334 08/24/07 ts A RESOLUTION APPROVING AN INVOICE IN THE ~OUNT OF $3,750 FROM ARCENEAUX ]~ND GATES TO THE CITY OF PORT ARTHUR SECTION 4A ECONOMIC DEVELOPMENT CORPORATION FOR A WETLANDS STUDY AND AUTHORIZING AN ADDITION]fL $3,750 UPON COMPLETION OF THE WETLANDS STUDY WHEREAS, the City of Port Arthur Section 4A Economic Development Corporation has received a proposal by Arceneaux & in Exhibit "A"; and Gates for a Wetlands Study as denoted ~6EREAS, the EDC Directors has approved the invoice of $3,750 as denoted in Exhibit "B" showing that the investigation is 50 % complete. NOW THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF PORT ARTHUR, TEXAS: That the facts and opinions in the preamble are Section 1. true and correct. Section 2. That the City Council hereby approves the invoice of Arceneaux and Gates as denoted in Exhibit "B". Section 3. That the EDC Board of Directors has the additional $3,750 upon completion of copy of the caption of this Resolution of the City Council. authorization to expend an the wetland investigation. Section 3. That a be spread upon the Minutes z.pr14334 READ, ADOPTED ANDAPPROVED on , A.D., 2007, at the City of Port Arthur, Texas, Mayor Councilmembers this day of a Meeting of the City Council by the following vote: AYES: NOES: of ATTEST: MAYOR CITY SECRETARY APPROVED AS TO FORM: CITY ATTORNEY APPROVED FOR ADMINISTRATION: CITY MANAGER z.pr14334 EXHIBIT "A" BERG + OLIVER ASSOCIATES, INC. ~nvlronrnental Science, ~nglne~rlng & La~d Ll,~e Consultants 14701~t. Mary'~ l, ang Suite400, tlomtoa Te~a~ 77079 (281) $89-0898 fax: (281) 589-0007 Houston 0 A~tl~ 0t~/DBF./HUB 0twne. beraolhmr, co~ June 4, 2007 Mr. Ron Arceneaux Arcene~ux & Gates Consulting Engineers, Inc. 3501 Turtic Creek Drive, Suite 102 Port Arthur, TX 77642 Via ematl: ron(~agcng, com Proposal for a Wetland Du~ Diligence Study, Wetland Delineation and Nationwide Permit BOA 6704espr Dear Mr. Am~ncaux: Thc following proposal is provided ~o Areancaux & Gates Consulting Engineers, Inc. for environmental services for 302 acres, located northwest of F,M, 365 and Jade Avenue, in Jeffersun County, Texas. Berg+Olivar Associates, Inc. (Berg+Oliver) will provide special attention to complete the work in a timely and professional manner. We will begin the assessment upon your acceptance and execution of this proposal. Berg*Oliver Associates, Inc. is proposing to provide the following ~rvices: Task I) Wetland Due Diligence Study, Task II) Wetland D¢liueation and Task 111) Nationwide Permit. ARachruent A describes each service. PROJECTSCHEDULE The scope of work involved in this environmental service proposal is anticipated to he complolc within thirty (30) calendar days of the receipt of an ~xecuted proposal and boundary survey/plat, or other suitablc boundary map by Bcrg*Oliver. The project completion s~hedule is the goal of all parties; it does not, however, reflect unusual delays due to forces beyond the control of Beg*Oliver and/or modifications to the scope of work based upon actual findings or additional mquesls by Ar~cneanx & Gates Consulting Engincera, Inc., its agents, or govemmantal agency. RIGHT OF ENTRY Unless otherwise stated, it is assumed that the client has thc authority to enter the pmpe~y for purposes of conducting envirenmcn~l assessments and herein grants that authority to Berg+ Oliver. Berg 0 Oliver Associates, Inc. BOA project numlgr 6704es1~' lune 4, 2007 BASIC COMPENSATION AND M~THOD QF PAYMENT The work de~fibed below includes st~nderd tasks that are usually required to complete the scope of the project. If a specific t~sk is not necessmy, as determined by Berg,Oliver in cousultation with the client and/or regulatory agency, it may not be performed in order to reduce chmges to the client. Berg*Oliver propo~ez to provide the environmental services described in Attachment A to Avceneaux & Gates Comulting Engincer~, Inc. for the following lwnp sum amoonts: TASK !: WETLAND DUE DILIGENCE STUDY ................................................. $2,650.00 TASK II: WETLAND DELINEATION ................................................................. $5,500.00* TASK I!I: NATIONWIDE PERMIT .................................................................. $8.750.00** GRAND TOTAL $16,900.00 * Thi~ amount lg based upon tho property ha~lng clear ovce~ for delineation re that.field work can be templet ed In one (I) day or le~s by a two-man cr~v. If there ts thick vegetation, it may take longer to complete th~ deltneatlo~ For ~ach additional day (8 hours) of field work by a two-man er~w, the arnounl will increase $1,800.00 extra p~r day. This task includes 36 hours of Project Management/Mapping tlr~. Extraordinary ¢lrcumstancas, such as regulatory agency r~vle~,s ba~ed upon recent policy changes, may r~qulre additional tas~ or further detatled analysis not covered In the present seap~ of work If this task requires more than a total of 36 hours of Project Management/Mapping time, the extra hours will b~ billed as additional services, ba~ed on the attachad rate schedule, bttt will not exceed 10% ($550.00) without written approval from the client. ** This estimate is based upon past experlenc~ and assume~ that ~ mq~ madbl~ m the p~mit ~e ~ed by tho p~lla comment agencl~, ~E~ ~or ~CK If major pmbl~ms ~ ~a~t~e~ t~s ~o~t will ln~e pw~rtlonal~, ~d an ~en~e~ ~r addit~nal ~IC~ will ~ su~i~d to Arc~e~ & Oat~ Co~ltl~ Engines, 1~ ~e ~CE m~ ~qul~ an ~loglcol Ped~l~ S~ to ~s the lnd~ldu~ P~mlt. ~ r~ulre~ Bg~Ol~ will ~e~ c~t~lve bi~ ~d ~p~t ~ ad~tlonal ~p~al to ~m~gte the Pe~tri~ If additional tasks mquir~ more than a 10% overage (as described above), Berg, Oliver will provide the client with an uppropriat~ change order. This cost estimate is valid for a period of six (6) months beyond the date shown below. After six (6) months, cost estimates may change due to fluctuations in fuel, subeontractom, and other sources required to complete the project Berg*Oliver will begin the work described herein upon the execution of this proposal by the client. Invoices for each lump sum amount will be invoiced upon completion of the trak or upon 50%, 75%, and 100% completion if the project takes longer than thirty (30) days to complete. Invoices for ali hourly work will be submitted monthly and will be based upon the attached Rat~ Schedule in Attachment B. Payment of all invoices is expected within thirty (30) days of the client's receipt of the invoice submitted by Berg, Oliver. If invoice is not paid in full in thirty (30) days, interest will accrue at 1.5~/o per month (18% p~r annum). Berg~.Olivt;r Asso~inles, ln¢. BOA project number 6704¢spr ]uric 4, 2007 CONI~II)ENTIALrrY OF ASSESgM~NT Thc assessment and all reht~d work and services of Berg* Oliver Associates, ho. are ennfidenfial. Berg*Oliver Associates, Inc. is hereby employed by Amencaux & Gates Consulting Engineers, Inc., pursuant to this conlract. Under such contngt relationship, all cormspondcuc¢, wriRen or oral, which relates to the find'rags of this study ar~, to the ext~nt permitted by law, strictly confidential b~tw~en the parti~ hereto, unless Berg+Oliver Associates, Inc. receives a written request from the cficnt to offer the results of this study to a third party not a part of this agreement/proposal. Environmental assessments may occasionally uncover extremely sensitive findings. R is the rasponsibility of Berg+Oliver Associate. s, Inc. to report these findings to the authorizing client and to no oth~r party. PROPOSAL ACCEPTANCE AND EXECUTION Acceptance of this proposal, indudlng the "G~neml Conditions for Services" found in Attachment C, will I~ indicated by the s'~atures helow and will serve ss authorization to proceed with the work pwposed herein. The signatory below also ~sonts that the client has, or tins secured, the authority to grant permission for Berg+Oliver Associates, Inc. personnel to enter the subject property as neccsssry to on, on&ct these assessments and that such p~rmission is granted to Berg+Oliver Associates, Inc. by the execution of this agreement/proposal. If the client is a Corporation or a Partnership, then the signature below will also rq~res~nt the personal guarantee of the individual signing on behalf of the Client. IN WITNESS THEREOF, Arc,~ux & Gags Consulling Engine,~rs, Inc. and Berg*Oliver Ass.o~iates, Inc. have acceptod and executed this proposal for environmental s~rviccs on this the ~.git oo7. ARCENEAUX & GATES CONSULTING ENGINEERS, INC. BERG + OLIVER ASSOCIATES, INC. S~mor Associate Natural Resource Management Berg+Olivcr Associates. Inc. BOA project number 6704espr ~une 4, 2007 ATTACHMENT A TASK I WETLAND DUE DILIGENCE STUDY The goal of the Wetland Due Diligence Study is to provide a cost-effective evaluation &the project site for wetlands that may influence the design and/or construction of a project. The Wetland Due Diligence Study is NOT a wetland delineation conducted according the Corps of Engineers Wetland Delineation Manual - Technical Re~o~t Y-87-1, but it is based on the criteria used by the U.S. Army Corps of Engineers (USACE) to determine Jurisdictionality under Section 404 of the Clean Water Act and/or Section 10 of the Rivers and Harbors Act. The Due Diligence Study should not be used as a baseline for actual engineering or design, but it can prove to be valuable for evaluating the feasibility ora project. If potential wetland areas are discovered during site reconnaissance, their approximate areas and locations will be estimated and located on a site drawing. Based upon our findings, delineation of wetland areas may be recommended to determine the actual acreage of jurisdictional wetlands. If no wetland areas are found that would be considered jurisdictional, Berg*Oliver Associates, Inc. will provide a letter indicating such findings. In order for work to begin, the client must provide a plat, map, or survey of the property sufficient for Berg*Oliver Associates, Inc. to determine, while in the field, the boundary edges of the study site. SCOPE OF WORK The tasks we are proposing to provide in the Wetland Due Diligence Study are as follows: Perform in-office evaluation of the property from infrared aerial photography and other available information to identify potential wetlands. Conduct a field reconnaissance, which will include walking the entire perimeter of the project area to confirm the findings of the in-office evaluation. Document field notes and general observations of the site, and estimate approximate sizes and locations of any wetland areas and/ur hydrological connections to a Water of the U.S. and/or 100-year FEMA floodplain. Classify any identified wetlands as "isolated," "potentially isolated," "adjacem," or "potentially adjacent." Prepare a letter report of findings, including a map rendering of the site, with the above information. Make recommendations as appropriate. Upon client request, submit findings to the USACE in order to obtain an official Jurisdictional Determination. The USACE determination may indicate the necessity Berg*Oliver Associates, Inc. BOA project number 6705espr Jun~ 4, 2007 of obtaining a permit. Ifa permit is required for site activities, a wetland delineation and a subsequent USACE verification will likely be required. (Response from the USACE may take up to 120 days.) TASK II WETLAND DELINEATION SCOPE OF WORK The objective of the Delineation is to evaluate any portion of the site to be classified as a "Jurisdictional Water of the United States" as defined in 33 CFR 328 and subject to USACE jurisdiction. Delineation work will consist of the following tasks: Task 1: Review of NRCS Soil Surveys: Task 1 will include a review of previously published soil data published by the U.S. Department of Agriculture, NRCS, to determine the types of surface soils expected to be confirmed by on-site soil analysis. Task 2: Review of Aerial Photographs: Task 2 will include a review of historical aerial color and black/white photographic enlargements for selected years. Infi'ared color photographs will be analyzed for the presence of wetland signature color distortions. Information for all photographic interpretation will be compared to locate recurring sites where wetland signatures are present. Task 3: Site Reconnaissance for Wetland Indicators.: Task 3 will include inspecting the property under the field procedures outlined in the Corps of Engineers Wetland Delineation Manual - Technical Report Y-87-I by the USACE. Transects are required for tracts greater than 5 acres in size, unless negotiated with the USACE to forego transects based on the homogeneous landscape and habitat type. If necessary, transects will be performed across the property, perpendicular to the nearest watercourse. Samples of vegetation, soils, and hydrology indicators will be taken at each change in topography or vegetation. Vegetation samples will be evaluated and recorded at each sample area. Upland vegetation will be verified, for it is as significant as wetland vegetation in the determination process. InsPection of the property for evidence or lack of wetland hydrology will be performed at each sample area. Soil samples will be evaluated at each test site for their hydric and non-hydric characteristics. Non-hydric soils verify upland status and are as significant as hydric soils in the determination process. Task 4: Demarkation of Wetland Areas: Task 4 will include the flagging of the jurisdictional wetland areas and/or the ordinary high water mark for location by a Registered Professional Land Survey (RPLS) or GPS. Location of the areas by RPLS or GPS survey using the USACE October 2003 Standard Operating Procedures is required for USACE verification/permitting and is recommended for project planning. Task 5: Preparation of a Map Representing Wetland Areas: Upon receipt of the RPLS or GPS wetland areas and the limits of the Jurisdictional Waters, information regarding the Berg*Oliver Associates, Inc. BOA project number 6705cspr June 4, 2007 field location of the boundaries of all Section I0 and 404 waters/wetland limits within the property boundaries will be plotted on a scaled map. Each Jurisdictional area will be depicted with the following information: (1) size and shape; (2) surface ama calculation (acres); and (3) combined total wetland and Jurisdictional Water area calculations for the entire subject tract. The final report submitted to the client from Berg*Oliver will reflect the surveyed data from the RPLS or GPS survey showing the location of the wetlands. Task 6: Report Preparation: Task 6 will include the preparation of a final report. Upon completion of the site reconnaissance, data translation, and map preparation, a report will be completed, two copies of which will be given to the client. The report will include a discussion of methodology used to delineate the tract, site findings, copies of all historical information reviewed, such as USGS topographical maps, NRCS soil survey maps, aerial photographs, site photographs, USACE routine data sheets, and a wetland delineation map. TASK III NATIONWIDE PERMIT PREPARATION SCOPE OF WORK The scope of work for preparation of a Nationwide Section 404 Permit and the submission and follow-up of the permitting process includes, but is not limited to. the following tasks: (1) prepare a conceptual development plan including plan and cross-section profiles based on designs by the engineer/client; (2) prepare and submit the Section 404 permit application to the USACE; and (3) attend multiple meetings with the regulatory agencies as needed. PROJECT SCHEDULE The Permit is projected to be submitted to the U.S. Army Corps of Engineers (USACE) within forty-five (45) calendar days of receipt of authorization to proceed. The permit review process by the USACE normally takes between ninety (90) and one hundred eighty (180) days. Unless otherwise stated, it is assumed that the client has the authority to enter the property for purposes of conducting environmental assessments and herein grants that authority to Berg* Oliver. The project completion schedule is the goal of all parties but does not reflect unusual delays (weather related or other) due to major, unpredictable, or unforeseen complications, modifications to the scope of work based upon actual findings, or upon additional requests by governmental review, Fall Creek Development Partners, the Owner, or the Corps of Engineers. Berg* Oliver Associates, Inc. BOA project number 6705espr June 4, 2007 ATTACHMENT B BERG * OLIVER ASSOCIATES, INC. Environmental Science, Engineering & Land Use Consultants 14701 St. Mary's Lane, Suite 400, Houston, Texas 77079 (281) 589-0898 fax: (281) ~89-0007 Houston 0 Austin OWDBEIHUB 0WWW.beraollver.com 2007 PERSONNEL RATE SCHEDULE Hourly Billing Rate Project Dh'eaor/Principal Senior Associate $150.00 $125.00 Professional Engine, er $115.00 Project Manager/Ragistered Environmental Manager Professional Geologist $110,00 $100.00 Health]Safety Officer/Chemist $100.00 Project Coordinator Wetlands Biologist/Ecologist $ 95.00 $ 90.00 Soil Scientist/Geologist Senior GIS Analyst GIS Analyst Field Technician $ 90.00 $ 80.00 $ 75.00 $ 65.00 In-House Technician/Administrator $ 60.00 CADD Sr, Analyst CADD Analyst Administrative/Word Processing $ 65.00 $ 55.00 $ 50.00 Specialist Subcontrautors 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 tiff7 (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 bc adjusted. Regardless of any rate adjustment, the "not to exuced" figures in a contract will not change. BergeOliver Associates, Inc. BOA project number 6705espr .lune 4, 2007 ATTACHMENT C GENERAL CONDITIONS ]FOR SERVICES Article 1: Services by BOA 1.1 Scope of services standard of care, BOA will perform the scope of services expressly described in this Agreement, a~er it is signed by both parties. The services performed by BOA will bc conducted in a manner consistent with the degree of earn 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 il is asked to perthrm 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 sesvices, the number of investigations and observations BOA makes, the number of samples it collects, or the number of tests it performs are necessarily limited by budgetary and time constraints, and observations and samples by their specific lecatinnal 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 environmental condition will be identified, that all contaminants or environmental condition will be dete~ted/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 thc limited information available fi-om the observations, investigations, sampling, and/or testing conducted under this Agreement. In preparing its report, BOA may review and interpret information provided by Client, third parties, and regulatory agencies 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. !.4 Documents. All reports and documents prepared and deliverable to Client pursuant to this Agreement will become Client's property upon flail 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 thom to be used for any extension of the services or any other project or purpose, without BOA's express written consent. 13 S~rvices not included. Unless expressly included in the scope of services, BOA's services will not include the following: (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, roles, standards, or ordinances (collectively called "Hazardous Materials"); Co) mechanical compaction of backfill; (c) dewataring 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; (f) concrete, blaclaop, water, sewer, electricity, or other outside services; (g) the removal of any soil or water; Co) installation of protective fencing or other structore; or (i) construction or monitoring. BOA will be entitled to additional compensation if it is asked to perform or provide such services listed above. 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 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 eests will not vary fi-om 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/ur presence at a site will not relieve others of their responsibility to Berg*Oliver Associates, Inc. BOA project number 6705espr June 4, 2007 Client or to othem, BOA will not be liable for the failure of Client's conS'actors or others to fulfill their responsibilities, and Clinnt 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 wimess or other litigation support related to its services, unless expressly agreed in writing. In the evem BOA is required to respond to a subpoena, government inquiry, or other legal process related to thc 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 fomished 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 Clionfs 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 exluipment. Article 2: Responsibilities of Client 2.1 Client requirements. Client, to tho best of its 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 whom services are to be performed; (e) 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; (0 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, natore, 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; th) 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, walls, tanks, and utilities; and indemnify, hold harmless, and defend BOA against claims arising out of damages to underground objects or structures not properly defined; 0) 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; 0c) 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, 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 contxol of the project site. Except es 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 uther contractors, the work of any other person or entity, or Client's site conditions. BOA will not he 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. Client agrees to indemnify, hold harmless, and defend BOA to the fullest extent permitted by law Berg*Oliver Associates. Inc. BOA project number 6705~pr June 4, 2007 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 cimumstances under which the services will be performed including, but not limited to, those stated in Section 3.2. As the services am performed, conditions may change or cimumstances outside BOA's reasonable control (including changes of law or regulatory policy) may develop that 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. In the event conditions or circumstances requirc thc services to be suspended or terminated, BOA will be compensated for services previously performed and for costs reasonably inulin'ed 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 impact spoil or excavation of natoral rasoumes on or adjacent to the site that has not been disclosed to BOA by the client; (b) there is no contamination of soil or groundwater at the site by Oil or Hazardous Materials that has not been disclosed to BOA by Client, (c) BOA will not encounter any underground structures, utilities, boulders, rock, water, running sand, or other unanticipated conditions in tho course of drilling or cxcavation; (d) rank installations will not require dewatering by BOA; and (e) if BOA's scope of services includes sea'vices 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 hilum of performance caused by fire or other casualty, labor dispute, government or military action, transportation delay, inclement weather, Act of Ged, 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 parformence, the parties agree to endeavor in good faith to resolve it equitably through negotiation or, if that fails, through nonbinding mediatien under thc 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 paymem 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 reasonable profit and overhead) incurred in its performance 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 fi.om invoice date until payment is received at the lesser of 1.5% per month or tho 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 m the exteut 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. Berg+ Oliver Associates, Inc. BOA projeCt number 6705espr June 4, 2007 Article 5: Insurance and Allocattan of Risk lnsornnce. During the performance of the services, BOA will maintain the following insurance: Workers' Compensation Statutory limits 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 bereby acknowledged, Client agrees to indemnify, hold harmless, and defend BOA fi.om 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 settlemant, which BOA may incur, become responsible for, or pay out as a result of denth 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 envh'onmant, 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 Agrcemant 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 fot~h 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, tegather with reasonable attorneys' and witness' fees and other costs and expenses of defanse and settlement, which Client may incur, become responsibfe for or pay out as a result of death or bodily injury or threat theranfto any person, destruction or damage to any property, contamination of er 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 panics (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 ofthls Agreement or out of any goods or services furnished under this Agreement, whether based in contract, negligence, strict liability, agency, wananty, tert, 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 writing and received by BOA within one year after completion of the services with respect to which the claim is made. Employee injury. Client agrees not to impede or to bring an action against BOA based on any claim or personal inju~y or death occurring in foe course or scope of the injured or deceased person's employment with BOA and related to the sepdces 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 deter:tiun, 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 Ma~rials 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 remcdiation 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 ali DOT and other gevcmment regulations, listing Client as the generator of the waste. If ~omunne other than Client is the ganerator of thc waste, Client will arrange for such other person to sign such manifests. BOA Berg e Olivet Associates, Inc. BOA pmj~t number 6705espr Juno 4, 2007 will not directly or indirectly assume title to or own or be deemed to possass 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 Cbent's use. However, under RCRA and GERCLA, the client, as generator, has ultimate responsibility for selection of thc disposal site. Client acknowledgcs and agrees that il 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 bom, or, except as expressly agreed in writing, for previous detection, monitoring, handling, storage, transportation, disposal, or n'¢atmcnt, that BOA's compansation is not coramensuratc with the unusually high risks associated with such materials, and that insurance is not reasonably available to protect against such risks. Tharefore, for separate consideration of $I0 end other good and valuable consideration, the receipt and adequacy et' which are bereby acknowledged, and in addition to the indemnification provided in Section 5.2, Client agrce~ to indcmnify, hold harmless, end 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 ramediation arising out of applicatinn of common law or statues such as CERCLA or other "Suparfand" 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 devclopcd by BOA in thc 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 thc safety, health, property, or welfare of human beings. BOA will advise Client (in advance, except in emergency) of any such di'selosura. 7.2 Notices. Notices between the parties will be in writing and will be hand delivered or sent by ce~ified 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 Agreement, except that BOA may assign this Agreeraent to its affiliates and may use subcontractors in the performance of its services. Nothing contained in this Agreement will be construed to give any fights or benefits to anyone other that thc Client and BOA, without the express wrinen consent of both partias. 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 ralalionship of agency, pormcrship, or joint venture. '/.4 Governing law and Headings. This Agreement will be gnvemed 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 thc agreement between the parties. `/.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 tho 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 porehase order, work order, or other document provided by Cliant modify or amend this Agreement, even if it is signed by BOA, unless BOA signs a written statement expressly indicating that such terms supersede thc terms of this Agreement. In the event of an inconsistency between these General Conditions and any oth~r 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. BOA project number 6705espr June 4, 2007 EXHIBIT "B" ARCENEAUX & GATES CONSULTING ENGINEERS, INC. 3501 TURTLE CREEK DRIVE SUITE 102 PORT ARTHUR, TX 77642 D~te 7/25/2007 Invoice Invoice # 11 Bill To PORT ARTHUR EDC 4173 39TH STREET PORT ARTHUR, TX 77642 Job No. Terms 07-EDC-080 Net 30 Description Hours/Units Rnte Amount WETLANDS INVESTIGATIONS - BUSINESS PARK/JADE AVENUE WETLAND INVESTIGATION - 50% COMPLETION OF 3.750.00 3,750.00 SERVICES Subtotal $3,7,50.00 Sales Tax (8.2S%) $0.00 Total $3,750.00 Phone # Fnx # (409)724-7888 (409)724-1447 ARCENEAUX & GATES Consulting Engineers, Inc. Engineers · Su~ors · Planners July 30, 2007 U. S. Army Engineer District, Galveston P.O. Box 1229 Galveston, TX 77553-1229 ATTN: Mr. Bruce Bennett RE: Request for Verification of Preliminary Wetland Determination Port Arthur Section 4A Economic Development Corporation Port Arthur, Jefferson County, Texas Dear Mr. Bennett; We represent the City of Port Arthur's Section 4A Economic Development Corporation (EDC) concerning the development of their Business Park. The 300-acre business park located on Spur 93, north of FM 365 was acquired by the EDC in I~e 2000 from SHP Management Company. At that time, the owner provided a copy of a letter from Kenny Jaynes of the USACE which stated that the Corps had no jurisdiction relating to the deposition of fill material on the site (RE: Corps' file No. D -11817). The EDC acquired the site and constructed utilities, streets and drainage facilities to make business/industrial sites available. To date, several tracts have been developed and more businesses are planning to locate in the near future. One client needs to construct a pipe storage/laydown area for a major LNG construction proJect. At the client's request, the EDC undertook an independent due diligence wetland study conducted by the environmental firm of Berg e Oliver Associates, Inc. The results of this study indicate there are no Jurisdictional areas. The EDC's client plans to mobilize and develop the site within the next 30-60 days. The EDC requests that you review the enclosed report and verify the preliminary determination made by the consultant. If you have a need for more information, or if you have any questions, please contact me. Very truly yours, ARCENEAUX & GA TES CONSUL TING ENGINEERS, INC. ~x, PE, PL~ Enc, Copy: PAEDC One ~tl® C~eek Square 3501 Tut t~e C~eek Dr, Suite 10~ Port Arthur, TX 77642 409/724-7888 FAX 409/724-1447 BERG, OLIVER ASSOCIATES, INC. Environmental Science, Engineering & Land Use Consultan~ 14701 St. Mary's Lons~ ,Suits 400 Houston, Texa~ 77079 (281) 58P-0898 fo~: (281) $8P-0007 July 13, 2007 Mr. Run Arceneaux Arceneaux & Gates Consulting Engin~rs, Inc. 3501 Turtle Creek Drive, Suite 102 Port Arthur, TX 77642 RE: Due Diligence Wstland Study Report 302 ac - Port Arthur BDC Business Park, Jefferson County, Texas BOA Job No: 6704W'P07 Dear Mr. Arceneaux, At your request, Berg*Oliver Associates, Incorporated (BOA) performed a Duc Diligence Wetland Study on thc proposed 302-acre Port Arthur Business Park located northwest of the FM 365 and W. Port Arthur Road intersection in lefferson County, Texas. Jurisdictional Waters of the United States, specifically wetlands, are regulated by the Clean Water Act (CWA) under the authority of the United States Army Corps of Enginners CUSACE). Based upon a January 9, :2001 Supreme Court Ruling (SWANCC vs. USACE), isolated wetlands may not be considered jurisdictional by the USACE; however, adjacent wetlands, headwaters, t~ibutaries, and other Waters of the U.S. remain jurisdictional. The purpose of the study was to dotennlne the approximate sizes and locations of wetlands and other areas that could potentially be chssifled as "$urisdictional Waters of the United State~." To classify an area jurisdict/onal, one of the following must be evident: · The areahas ahydrological connection to a Water of the U.S. · Tho ar~a lies within the 100-year floodplain of a Water of the U.S. · The area is a Water of tho U.S. Survey methods included the following: 1) review of U.S. Geological Survey topographic maps, Natural Resources Conservation Service maps and local county Soil Survey maps; 2) review of historical color, Mack and white, and infrared aerial photographs; 3) review of thc U.S. Federal Emergency Management Agency floodpla/n maps; and 4) site reconnaissance. Due to the methods employed in a preliminary study, small marginal areas may not have been observed and a moderate margin of error can be eXl~Cted. A wetland delineation according to the 1987 Cows of Engineers Wetland Delineation Manual was not conducted. The site reconnaissance survey was conducted on June 23, 2007 by Clay T. Lawson of BOA. The site was assessed for the presence of non-jurisdictional and jurisdictional areas, as determined by the CWA. The subject property contained the following non- jmisdictional area: Man-Made Detention Pond (non-jurisdictional) 3.2 (~) acres The locations and sizes of the site's sreas listed above are depicted on the attached Due Diligence Wetland Study Map. These values were derived from aerial photograph interpretation, interpretation of historical topography, soil data, floodplain data, and general field observations/measurements. This should not be considered as precise, ss would data derived from a wetland delineation. The USACE and ~PA issued n~w guidance in determining if they have jurisdiction over a potential Waters of the U.S. on June 5, 2007. ]he USACE-Galveston Dis~rlct is currently in thc prccass of ifiterprefing how the new guidance affects potential Waters of the U.S. within their district. If an "official" designation of these wetland areas is needed, the USACB, the fmal authority on jurisdictional status, should perform a jurisdictional determination. In the event project activities are proposed within jurisdictional areas, a wetland delineation and permit could be required by the USACE. It is recommended fltat the £mdinEs presented in tiffs report be submitted to the USACB for verification and concurrence. Thank you for allowing Berg*Oliver Associates, Inc. to provide you with these environmental services. We look forward to working with you in thc future. If you have any questions please feel free to call me at (281) :589-0898. Sincerely, Clay T. Lawson Senior Associate Auachments: Due Diligenc~ Wctland Study Mlsp lti~ll t.,t