Signed Contracts, Agreements_Monitoring Underground Storage Tanks at Grandview, RockdaleMasterpiece on the Mississippi
TO: Michael C. Van Milligen, City Manager
FROM: Marie L. Ware, Leisure Services Manager
SUBJECT: Agreement for Monitoring Underground Storage Tank
at Rockdale- Grandview site
DATE: August 27, 2010
The agreement for monitoring the underground storage tank at the Grandview and
Rockdale Road site is attached. This vendor has been working with the previous
owners on this site and is familiar with it. Their bid was the lowest of three.
The state insurance program has already confirmed they will cover the annual cost of
this contract. The site is currently categorized as "low risk." It is hoped that a few years
of monitoring will demonstrate a declining level of pollutants and the site would get a "no
further action" classification.
Barry Lindahl has reviewed this agreement and the company has made the changes he
requested.
If you have any questions, please call.
Please sign the attached agreement and return it to me.
MLW:et
attachment
Dubuque
btid
Af-America City
11111,
2007
This AGREEMENT is made this 25th day of August , 2010, by and between City of Dubuque its employees, officers,
directors, subsidiaries, and agents (Client) of Dubuque, Iowa and ATC GROUP SERVICES INC. dba ATC ASSOCIATES INC.,
its employees, officers, directors, subsidiaries, and agents (ATC) at Waterloo, Iowa .
The parties mutually agree as follows:
DESIGNATED REPRESENTATIVES Except as expressly specified otherwise in writing, the parties designate the following
named individuals as their authorized representatives to provide approvals, directives, and permissions, including changes,
and to receive notices or other communications under this agreement at the following addresses:
ATC: Gaylen Hiesterman
CLIENT Robert Fritsch of City of Dubuque
PROPOSAL NAME/NUMBER: 007.2010.0180
SERVICE ORDER NUMBER:
1. SERVICES TO BE PERFORMED ATC shall prepare a
proposal and/or a service order for Client. The proposal and/or
service order shall describe the work to be performed (Services)
the location (Site), fees and/or rates to be charged, certain special
conditions of performance including equipment, sampling
protocols, and necessary reimbursable expenses. ATC will be
authorized to proceed with the Services (Service Order), when
Client indicates its acceptance by signing this Agreement. The
Service Order, any attachments pertaining to the Service Order,
and this Agreement shall comprise the Contract Document.
2. ADDITIONAL SERVICES If any additional or different
Services are required to complete an existing Service Order, these
additional Services shall be set forth in a new Service Order
satisfying all applicable and appropriate requirements including a
separate schedule of fees and Services (Change Order).
3. COMPENSATION Client will pay ATC for Services and
expenses in accordance with the Service Order. ATC will submit
periodic invoices to Client together with reasonable supporting
documentation requested by Client and a final bill upon
completion of its services. Unless otherwise agreed in writing,
there shall be no retainage. Payment is due within thirty (30) days
regardless of whether Client has been reimbursed by any other
party. ATC may suspend work, withhold reports and vacate the
site if payment is not received. ATC may from time to time revise
its fees and/or rates and advise client either by general notification,
or by specific Service Order.
4. EXPENSES Unless otherwise stated in the Service Order,
Client agrees to pay ATC for its reimbursable expenses, in addition
to its fees, but not to exceed $250.00 without the prior written
agreement of client. Reimbursable expenses are expenditures
made by ATC in the interest of the contracted Services.
Reimbursable expenses shall be billed, and paid, in accordance
with the schedule included with the Service Order. ATC will
submit a Change Order to Client detailing other reimbursable
expenses not outlined in the Service Order, for written
authorization prior to billing.
ASSOCIATES INC.
CLIENT SERVICES AGREEMENT
5. INSURANCE ATC agrees that it now carries, and will
continue to carry during the performance of any Services under
this Agreement, Workers' Compensation and Employer's
Liability, Commercial General Liability (including Contractual
Liability), Commercial Automobile Liability, Professional
Liability and Contractor's Pollution Liability insurance
coverage with limits at or above those described in Insurance
Schedule C, Insurance Requirements for Professional Services
to the City of Dubuque. ATC will comply in all respects with
Schedule C.
6. OBLIGATIONS OF CLIENT Client warrants that all
information provided to ATC conceming the required
Services, is complete and accurate to the best of Client's
knowledge. Client agrees to advise ATC prior to
commencement of the Services, and during the work, of any
hazardous conditions on or near the Site known to Client.
Client understands that ATC is relying upon the completeness
and accuracy of information supplied to it by Client and ATC
will not independently verify such information unless
otherwise provided in the Service Order. Client shall be solely
responsible for and shall indemnify and hold harmless ATC for
any costs, expenses or damages incurred by ATC due to
Client's failure to follow applicable reporting and
governmental requirements. Client will not hold ATC liable if
ATC's recommendations are not followed and waives any
claim against ATC, and agrees to defend, indemnify and hold
ATC harmless from any claim or liability for injury or loss that
results from failure to properly implement ATC's
recommendations.
7. STANDARD OF CARE ATC's Services as defined by the
Service Order shall be performed in accordance with generally
accepted industry principles and practices, consistent with a
level of care and skill ordinarily practiced by the consulting
profession currently providing similar services under similar
circumstances at the time the Services were provided. Client
agrees to give ATC written notice within one (1) year of any
breach or default under this section and to provide ATC a
reasonable opportunity to cure such breach or default, without
the payment of additional fees to ATC, as a condition
precedent to any claim for damages.
ATC Client Master Services Agreement 2008
8. LIMITATIONS OF METHOD RELIABILITY The Client
recognizes and agrees that all testing and remediation methods
have inherent reliability limitations; no method or number of
sampling locations can guarantee that a condition will be
discovered within the performance of a Service Order as
authorized by the Client. The Client further acknowledges and
agrees that reliability of testing or remediation methods varies
according to the sampling frequency and other variables and that
these factors, including cost, have been considered in the Client's
selection of Services. ATC's observations only represent
conditions observed at the time of the Site visit. ATC is not
responsible for changes that may occur to the Site after ATC
completes the Services.
9. INTERPRETATION OF DATA ATC shall not be responsible
for the interpretation of ATC data by third parties, or the
information developed by third parties from such data. Client
recognizes that subsurface conditions may vary from those
encountered at the locations where the borings, surveys, or
explorations are made by ATC and that the data interpretations and
recommendations of ATC's personnel are based solely on the
information available to them.
10. THIRD PARTY INFORMATION ATC is dependent on
information available from various governmental agencies and
private database firms to aid in evaluating the history of the Site.
ATC shall not be liable for any such agency's or database firm's
failure to make relevant files or documents properly available, to
properly index files, or otherwise to fail to maintain or produce
accurate or complete records.
11. SITE ACCESS Client grants or shall obtain for ATC a right
of entry to all parts of the Site necessary to complete the requested
Services and unless otherwise specified in the Service Order, it
represents that it has obtained the applicable permits and licenses
for the proposed Services. If Client does not own the Site, Client
represents that it has or will obtain prior to the commencement of
the Services, the authority and permission of the owner and/or the
occupant of the Site. Client acknowledges that due to the nature of
some Services unavoidable damage may occur. Client waives its
right of recovery for such unavoidable damage, and if Client is not
the owner of the Site, Client agrees to indemnify and defend ATC
against any claims by the owner and/or occupant for any such
damage.
Unless otherwise specified in the Service Order, ATC is not liable
for damages caused by exploratory demolition or investigation to
identify, quantify, or evaluate building materials, systems, and/or
components not readily accessible to ATC during ATC's
performance of the Services. ATC is not responsible for
unforeseen conditions that exist on the Site within building
systems that prohibit or deter ATC from gaining access to building
materials, systems, and/or components.
12. SITE CONTROL ATC's testing, observation, or inspection of
the work of other parties on a project shall not relieve such parties
of their responsibility to perform their work in accordance with
applicable plans, specifications and safety requirements.
Continuous monitoring by ATC's employees does not mean that
ATC is observing or verifying all Site work or placement of all
materials. Client agrees that ATC will only make on -Site
observations appropriate to the Services provided by ATC and will
not relieve others of their responsibilities to perform the work.
13. TEST AND SAMPLING LOCATIONS Unless otherwise
specified in the Service Order, the accuracy of test or sampling
locations and elevations will be commensurate only with
pacing and approximate measurements or estimates. The
Client should retain the services of a professional surveyor, if
greater accuracy is required. Client will furnish a diagram
indicating the accurate location of the Site. Sample locations
may also be indicated on the diagram. ATC reserves the right
to deviate a reasonable distance from the boring and sampling
locations unless this right is specifically revoked by the Client
in writing at the time the diagram is supplied.
14. SAMPLES AND EQUIPMENT Unless otherwise
specified in the Service Order or required by law, ATC will not
retain any samples obtained from the Site. At no time does
ATC assume title to the samples; all samples shall remain the
property of the Client. ATC will, however, sign manifests as
agent for Client.
All laboratory and field equipment contaminated during ATC's
Services that cannot readily and adequately cleansed of its
hazardous contaminants shall become the property and
responsibility of the Client. The Client shall purchase all such
equipment as an expense of the Services, and it shall be turned
over to the Client for proper disposal unless otherwise
specified in the Service Order.
15. ENGINEERING AND CONSTRUCTION SERVICES
If the Services requested only require geotechnical
engineering, subsurface exploration, construction materials
testing, and or engineering, ATC assumes that there are no
hazardous substances or constituents in the soils or
groundwater underlying the Site. ATC's duties and
responsibilities are limited to performing tests and monitoring
of specific construction activities as outlined in the Service
Order.
Unless otherwise specified in the Service Order, any
consulting, testing or monitoring related to environmental
conditions, including, but not limited to hazardous waste, soil
or groundwater contamination, or air pollutants are not part of
ATC's engineering and construction Services. If it becomes
apparent during the field exploration that hazardous substances
or constituents may be present, field operations will be
terminated without liability.
16. OPINIONS OF COSTS ATC may provide estimates of
costs for remediation or construction as appropriate based on
available data, designs, or recommendations. However, these
opinions are intended primarily to provide information on the
range of costs and are not intended for use in firm budgeting or
negotiation unless specifically agreed to in writing by ATC.
17. SAFETY ATC shall not, unless otherwise specified in the
Service Order, be responsible for health and safety procedures,
construction means, methods, techniques, sequences, or
procedures, nor be responsible for the acts or omissions of
contractors or other parties on the Site.
18. UTILITIES Unless otherwise specified in the Service
Order, it is Client's responsibility to mark or furnish the
locations of all private underground man -made obstructions at
all Sites that the Client owns and/or operates. Client shall
indemnify, defend and hold harmless ATC from and against
any claims, losses or damages incurred or asserted against
ATC related to Client's failure to mark, protect or advise ATC
of underground structures or utilities. ATC will contact the
Iowa One -Call utility locating service for public utility locates.
ATC Client Master Services Agreement 2008
19. ROOF CUTS Unless otherwise specified in the Service
Order, if roof cuts /samples are required by the Services, it is the
responsibility of the Client to make appropriate repairs. If a
roofing contractor or maintenance personnel selected by Client is
not on the roof to make repairs at the time samples are obtained,
ATC may make temporary repairs, which may result in additional
charges. ATC personnel are not certified in roofing repair,
therefore under no circumstances, shall ATC be responsible for
any water damage to the roofing system, building, or its contents
resulting from ATC's temporary repairs.
20. HAZARDOUS CONDITIONS OR SUBSTANCES The
Client acknowledges that ATC has neither created nor contributed
to the creation or existence of any hazardous, radioactive, toxic,
irritant, pollutant, substance or constituent, at the Site. All Site
generated hazardous and non - hazardous waste, including used
disposable protective gear and equipment, are the property of the
Client.
21. RIGHT TO STOP WORK If, during the performance of a
Service Order, any unforeseen hazardous substance, material,
element, constituent, condition, or occurrence is encountered
which, in ATC's reasonable judgment significantly affects or may
affect the Services provided, the risk involved in providing the
Services, or the recommended scope of Services, ATC may
immediately suspend work.
22. ATC AND CLIENT INDEMNIFICATION ATC shall
indemnify and hold harmless Client against claims, demands, and
lawsuits, to the extent arising out of or caused by the negligence or
willful misconduct of ATC, in connection with activities
conducted in the performance of the Services.
The Client shall indemnify and hold harmless ATC from and
against claims, demands, and lawsuits, to the extent arising out of
or caused by the negligence or willful misconduct of the Client.
If a dispute arises between the parties resulting in litigation, the
prevailing party shall be entitled to recover all reasonable costs
incurred.
23. LIMIT OF LIABILITY ATC's total liability for for all claims
or causes of action of any kind including but not limited to
negligence, bodily injury or property damage, breach of contract or
warranty shall not exceed the amount recoverable from the
insurance limit set forth in this Agreement.
24. CONSEQUENTIAL DAMAGES In no event shall either
party be liable to the other party for any consequential, incidental,
punitive, or indirect damages including but not limited to loss of
income, loss of profits, loss or restriction of use of property, or any
other business losses regardless if such damages are caused by
breach of contract, negligent act or omission, other wrongful act,
or whether ATC shall be advised, shall have other reason to know,
or in fact shall know of the possibility of such damages.
25. WARRANTY ATC is not a manufacturer. If any equipment is
used or purchased by ATC for a Service Order the manufacturer's
warranties if any on the equipment are solely those of the
manufacturer. ATC makes no other representation, guarantee, or
warranty, expressed or implied, in fact or by law, whether of
merchantability, fitness for any particular purpose or otherwise,
conceming any of the goods or Services which may be furnished
by ATC to Client.
26. DOCUMENTS Project - specific documents and data
produced by ATC under this Agreement shall, upon
completion of the Service Order become the property of Client
upon payment of amounts owed ATC. ATC shall have the
right, but not the obligation, to retain copies of all such
materials.
27. RELIANCE Documents and data produced by ATC are
not intended or represented by ATC to be suitable for use or
reliance beyond the scope or purpose for which they were
originally prepared, or for anyone except Client. Any such
unauthorized use will be at the Client's or third party's sole
risk.
28. THIRD PARTY CLAIMS (section deleted)
29. SUBPOENAS (section deleted).
30. TERMINATION OF CONTRACT This Agreement may
be terminated by either party upon seven (7) days written
notice provided that any incomplete or unfinished Service
Order will remain in effect until completed, unless otherwise
agreed to in writing. In the event of termination or
suspension, by the Client, ATC shall be paid for Services
performed prior to the termination date plus reasonable
termination and suspension expenses.
31. ASSIGNMENT Neither the Client nor ATC may assign,
or transfer its benefits, rights, duties, or interest in this
Agreement without the written consent of the other party. This
Agreement shall be binding on and inure to the benefit of the
successors and assigns of the parties.
32. FORCE MAJEURE Neither Client nor ATC shall hold
the other responsible for damages or delays in performance
caused by uncontrollable events, which could not reasonably
have been anticipated or prevented, including but not limited
to, acts of God, the public enemy, acts of the Government of
the United States or of the several states, or any foreign
country, or any of them acting in their sovereign capacity,
materially different Site conditions, wars, riots, terrorism,
rebellions, sabotage, fires, explosions, accidents, floods,
strikes, or other conceded acts of workers, lockouts, or changes
in laws, regulations, or ordinances.
33. GENERAL PROVISIONS The captions and headings
throughout this Agreement are for convenience only and do not
define, limit, modify, or add to the meaning of any provision of
this Agreement. If any provision of this Agreement is in
conflict with any provision of the Service Order, the terms and
conditions of this Agreement shall prevail unless the conflict
concerns the scope of Services to be provided. If any
provision shall to any extent be deemed invalid, it shall be
modified if possible to fulfill the intent of the parties as
reflected in the original provision and the remainder of this
Agreement shall not be affected.
This Contract Document represents the entire understanding
between the parties and supersedes any and all prior contracts
whether written or oral. Nothing contained in this Contract
Document shall be construed to be for the benefit of any
persons not a party to this Agreement. No third party
beneficiary rights are created.
ATC Client Master Services Agreement 2008
The validity, interpretation, and performance of this Agreement
shall be governed by and construed in accordance with the laws of
the state in which the Site is located. Any legal action arising out
of this Agreement shall be venued in a court of competent
jurisdiction within the state and county of the Site.
No waiver by either party of any default by the other party in the
performance of any provision of this Agreement shall operate as or
be construed as a waiver of any future default, whether like or
different in character.
ATC is solely responsible for the performance of this Agreement,
and its directors, officers, employees, or agents shall have no legal
responsibility whether in contract or tort, including negligence.
34. UST Fund — ATC will assist the client with reimbursement, if
eligible, from the Iowa UST Fund on current and future stages of
the Ludwig property LUST project.
ATC ASSOCIATES INC.
BY:
f 4%
PRINTED NAME: Gaylen Hiesterman
TITLE: Operations Manager
DATE: August 26. 2010
CLIENT: City of 1 buque, Iowa
(Person authoriz + t• execute contracts)
BY:
PRINTED NAME:
TITLE:
DATE: