Signed Contract_Bee Branch Creek Restoration Project Phase I Environ AssessmentFirm
Proposed Fee
IIW Engineers & Surveyors
$9,350.00
Preston Engineering
$3,200.00
Terracon
$5,400.00
Masterpiece on the Mississippi
MEMORANDUM
TO: Michael C. Van Milligen, City Manager
FROM: Gus Psihoyos, City Engineer
SUBJECT: Bee Branch Creek Restoration Project, Phase I Environmental Assessment
DATE: December 20, 2010
INTRODUCTION
The purpose of this memo is to present a contract for services agreement with Preston
Engineering, Inc. to perform a Phase I Environmental Site Assessment (Phase I ESA) of
the property associated with the Lower Bee Branch Creek Restoration Project.
BACKGROUND
On September 15, 2010 the I -JOBS Board of Directors awarded a total of $30 million
available through the I -JOBS II program to 23 projects in 21 Iowa counties. Of those
awardees, the City of Dubuque received $3,965,500 for the Lower Bee Branch Project,
one of the largest awards.
In October of 2010, the City Council authorized the execution of a Grant Agreement with
the Iowa Jobs Board and the Iowa Finance Authority which will result in the City's
receipt of $3,965,500 for the Lower Bee Branch Creek Restoration Project.
DISCUSSION
One of the requirements outlined in the I -JOBS II Grant Agreement is that a Phase I
ESA must be performed on the properties associated with the project.
The City received proposals from three firms that have produced Phase I ESAs for the
City in recent years. The three firms are IIW Engineers, Preston Engineering, and
Terracon. All three are familiar with some of the environmental issues associated with
the Lower Bee Branch Creek Restoration project as all three have performed some
level of environmental assessment work on Tots associated with the Lower Bee Branch
Creek restoration project.
Engineering reviewed the proposals and determined that it is in the best interest to hire
Preston Engineering to perform the Phase I ESA. The proposed fees were as follows:
Dubuque
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All- America Cily
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2007
The proposed contract reflects changes recommended by the Legal department.
RECOMMENDATION
I recommend that the City execute the attached contract hiring Preston Engineering,
Inc. to perform a Phase I ESA of the property associated with the Lower Bee Branch
Creek Restoration Project as required for the Lower Bee Branch Creek Restoration
Project.
BUDGET IMPACT
Per the agreement, the cost to prepare the Phase I ESA is $3,200. This will be funded
using the FY10 appropriation in the amount of $1,735,100 for design and engineering
associated with the Bee Branch Creek Restoration Project (CIP #7201654).
ACTION TO BE TAKEN
respectfully request execution of the attached proposal from Preston Engineering, Inc.
to perform a Phase I Environmental Site Assessment of the property associated with the
Lower Bee Branch Creek Restoration Project.
Attach.
Prepared by Deron Muehring
cc: Barry Lindahl, City Attorney
Jenny Larson, Budget Director
Deron Muehring, Civil Engineer 11
Scope of Work
PROPOSAL
Page 1
Proposal Number: 10 -578
REVISED
Consultant (Environmental Professional)
Preston Engineering, Inc.
4436 N. Brady Street
Davenport, Iowa 52806 -4009
Phone: (563) 388 -8288
Fax: (563) 388 -9003
Client
Deron L. Muehring, Civil Engineer
City of Dubuque, IA
50 W. 13 Street
Dubuque, Iowa 52001 -4805
Phone: (563) 589 -4276
Fax: (563) 589 -4205
Site /Project Location ( "Subject Property ")
Lower Bee Branch Creek Restoration Project Properties, Dubuque, Iowa
Description of Work: In accordance with the Terms for Consultant's Professional Services,
attached hereto, Consultant shall furnish the personnel, materials, and services necessary to
perform the following work:
A Phase I Environmental Site Assessment (ESA) of the real properties at the above - referenced
location in Dubuque, Iowa will be conducted by an Environmental Professional in accordance with
ASTM Designation: E 1527 -05 Standard Practice for Environmental Site Assessments: Phase I
Environmental Site Assessment Process (E 1527). The property consists of 27 parcels of land used
primarily as commercial properties and associated infrastructure in Dubuque, Iowa. The total parcel
acreage consists of approximately 32 acres.
1. Consultant will perform a records review to identify existing and potential sources of
environmental contamination, including known or suspected releases of petroleum products or
hazardous substances on the properties or within the required minimum search distance from
the properties' boundaries.
• The review will consist of standard, reasonably ascertainable, publicly available, and
practically reviewable environmental record sources. An adjustment to the minimum
search distances maybe made, if the Consultant determines a need to do so, based on site
specific factors.
• Documentation of each source used will be provided in the report.
• Copies of, or references to, supporting documentation will be provided in the report.
• A judgment on the significance of each source will be provided in the report.
2. Consultant will describe the physical setting of the properties using the current USGS 7.5 minute
topographic map(s) and other sources, as necessary.
3. Consultant will use standard historical sources to describe the history and the previous general
uses of the properties and the surrounding areas from the first developed use or from 1940,
whichever is earlier.
4. Consultant will perform a site reconnaissance to observe and document the properties' exterior
geologic, hydrogeologic, hydrologic, structural, and topographic features. The interior of
structure(s) will be observed, if access is provided, and the uses and conditions will be
documented. If Consultant cannot access all areas during the site visit, these conditions will be
reflected in the Report. Unless it is prohibited, photos will be taken to document conditions
observed.
5. During the site visit, Consultant will attempt to observe and document the current and past uses
of the surrounding area. Consultant will observe surrounding properties from the property or
adjoining public rights -of -way and will not enter adjacent properties unless consent to access
adjacent properties is provided.
6. Consultant will attempt to interview past and present owners, the key site manager(s), past and
present occupants, and the user to obtain information indicating the properties' uses and
conditions.
7. Consultant will attempt to interview state and local government officials to obtain information
indicating the properties' uses and conditions.
8. Consultant will evaluate and document the findings, opinions and conclusions of the assessment
in a written report. This report will provide further recommendations for additional investigation,
as warranted. Two copies of the report will be provided.
Client Responsibilities
1. Prior to the site visit, the Client will complete and return the attached User Questionnaire to the
Consultant. Client understands that failure to provide this information could result in a
determination that "all appropriate inquiry" is not complete.
2. The Client shall identify which entities are entitled to rely upon the report. Lacking any such
identification, Consultant will assume that only the Users named above are entitled to rely upon
the ESA.
3. Prior to the site visit, the Client shall provide the name(s) and telephone number(s) of key site
manager(s) who can (a) authorize and provide access and agreements as necessary to enter upon
private lands and structures as required for the performance of the services of the Consultant and
(b) has knowledge of the uses and physical characteristics of the properties.
Page 2
4. Prior to the site visit, the Client shall provide the name, address(es) and telephone number(s) of
current owner(s) of the properties and legal description of the properties.
5. The Client shall provide access to previously developed information on the properties, if any,
such as environmental assessments and other information related to site conditions.
6. Client will provide Consultant chain of ownership information which may be contained in
insurance policies or abstract of title, if available.
7. Prior to the site visit, the Client will identify additional issues, if any, that need to be assessed
and are outside the scope of work. Additional issues include asbestos - containing materials,
radon, lead -based paint, lead or other contaminants in drinking water, wetlands, regulatory
compliance, cultural and historical resources, industrial hygiene, health and safety, ecological
resources, endangered species, indoor air quality, biological agents, and mold.
Charges and Payment for Work
For tasks 1 through 8 above, Consultant's charges shall be on a Lump Sum Basis. Total fees and
expenses invoiced pursuant to this agreement shall be $3,200.00 (THREE THOUSAND TWO
HUNDRED AND NO /100 DOLLARS).
If more than two copies of the report are required by the Client, additional copies can be provided at
a rate of $25.00 per additional copy.
Barring delays caused by an act of nature (including presence of snow cover) or other unforeseeable
circumstances outside Consultant's control, Consultant agrees to perform the work by January 7,
2011, if authorized by December 13, 2010 of the execution of this agreement.
TERMS FOR CONSULTANT'S PROFESSIONAL SERVICES attached hereto, is an integral part of
this Proposal.
CONSULTANT:
PRESTON ENGINEERING, INC.
By:
Date: December 8, 2010 Date:
Page 3
ACCEPTED
CLIENT:
(Type or print name)
(Signature)
laY )// d
1. THE AGREEMENT
a. This agreement is made by and between: Preston Engineering, Inc.
(herein after "Consultant ") and the party(ies) identified on the face of
the attached Proposal (hereinafter "Client ").
b. The Agreement between the parties consists of these Terms and
the attached Proposal. Together, these documents constitute the entire
Agreement, superseding any and all prior negotiations, cor-
respondence, or agreements either written or oral. Any changes to this
Agreement must be mutually agreed to in writing.
2. SITE ACCESS AND SITE CONDITIONS
a. To the extent that the project requires Consultant to access a
particular site, that site will be described in the Proposal, and Client
will grant or obtain free access to the site for all equipment and
personnel necessary for Consultant to perform the work set forth in
this Agreement.
b. Unless indicated otherwise in the Proposal, Client is responsible
for accurately delineating the locations of all subterranean structures
and utilities. Consultant will take reasonable precautions to avoid
known subterranean structures.
c. As to subterranean structures and utilities not identified or
accurately located, Client waives any claim against Consultant, and
agrees to defend, indemnify, and hold Consultant harmless from any
claim or liability for injury or loss, in accordance with paragraph 8,
below.
d. Client shall furnish or cause to be furnished, or authorizes
Consultant to acquire, such reports, data, studies, plans, specifications,
documents and other relevant information required by Consultant for
proper performance of its services. Consultant shall be entitled to rely
upon the provided documents and information in performing the
services required under this Agreement however, Consultant assumes
no responsibility or liability for their accuracy or completeness. Docu-
ments provided by Client will remain Client's property.
e. _ Unless indicated otherwise in the Proposal, Consultant shall be
responsible only for its activities and those of its employees and
subcontractors on this project. Neither the professional activities nor
the presence of Consultant or its employees or its subcontractors on
the site shall imply that Consultant controls the operations of others,
nor shall this be construed to be acceptance by Consultant of any
responsibility for job -site safety.
3. STANDARD OF CARE
a. Services performed by Consultant under this Agreement shall be
conducted in a manner consistent with the level of care and skill
ordinarily exercised by members of the environmental and
geotechnical services professions practicing contemporaneously under
similar conditions in the locality of the project. Under no circumstance
is any warranty, expressed or implied, made in connection with the
providing of Consultant's services hereunder.
b. Client recognizes that subsurface conditions may vary from those
observed at locations where borings, survey, or explorations are made,
and that site conditions may change with time. Data, interpretations,
and recommendations by Consultant will be based solely on
information available to Consultant. Consultant is responsible for those
data, interpretations, and recommendations, but is not responsible for
other parties' interpretations or use of the information developed.
c. It is understood and agreed that Consultant is not, and has no
responsibility as, a handler, generator, operator, treater, or storer,
transporter or disposer of hazardous wastes, hazardous substances or
Terms for Consultant's Professional Services
Page 4
petroleum- contaminated materials found or identified at the site, and
that Client shall undertake or arrange for the handling, removal,
treatment, storage, transportation and disposal of same, including any
field or laboratory equipment that becomes contaminated by hazardous
substances encountered at the project site, and any samples secured by
Consultant which are found to be contaminated, except as to samples
required to be preserved, which such samples Consultant agrees to
preserve for a period not to exceed forty-five (45) days after the
issuance of any document that includes the data obtained from those
samples.
4. CONTAMINATED EOUIPMENT AND CONSUMABLES
Any field or laboratory equipment that becomes contaminated by
hazardous substances encountered at the project site must be
decontaminated and contaminated consumables must be disposed of
properly. Client agrees to remunerate Consultant for costs associated
with decontamination of equipment and disposal and replacement of
contaminated consumables. For purposes of this Agreement, any
equipment that cannot be decontaminated shall be considered a con-
sumable.
5. DISCOVERY OF UNANTICIPATED HAZARDOUS MATERI-
ALS. HAZARDOUS CHEMICALS, OR HAZARDOUS WASTE
a. For purposes of this section, the term "hazardous material" means
any hazardous material, hazardous substance, hazardous waste, or
hazardous chemical including petroleum and petroleum contaminated
water or soil. Client shall provide consultant with any information
available to Client that relates to the identity, location, quantities,
nature, or characteristic of any hazardous material at, on or under the
site.
b. Hazardous material may exist at a site where there is no reason to
believe they could or should be present. Consultant and Client agree
that the discovery of unanticipated hazardous material constitutes a
changed condition mandating a renegotiation of the scope of work or
termination of services. Consultant and Client also agree that the
discovery of unanticipated hazardous material may make it necessary
for Consultant to take immediate measures to protect health and safety.
Client agrees to compensate Consultant for measures taken to protect
health and safety and/or any equipment decontamination or other costs
incidental to the discovery of unanticipated hazardous material.
c. Consultant agrees to notify Client when unanticipated hazardous
material or suspected hazardous material is encountered. Client agrees
to make any disclosure required by law to the appropriate governing
agencies. In the event the project site is not owned by Client, Client
recognizes that it is Client's responsibility to inform the property owner
of the discovery of unanticipated hazardous material or suspected
hazardous material. Client also agrees to hold Consultant harmless for
any and all consequences of disclosures made by Consultant which are
required by governing law.
6. FUTURE SERVICES
In the event this is a lump sum contract, all future services, including
but not limited to review of plans and specifications, construction
monitoring and post - construction work, rendered by Consultant at
Client's request for the project described in the
Proposal, shall be conducted under the terns of this Agreement.
7. LIMITATION OF LIABILITY
Except for liability resulting from the negligence, breach of contract,
recklessness or wilful misconduct of Consultant or its subcontractors,
consultants, agents, officers, directors or employees (collectively
referred to hereinafter in this Paragraph 7 as "Consultant "), the liability
of Consultant for Client's claims of loss, injury or damage, including
Client's claims of contribution and indemnification with respect to any
third -party claims which may be made against Client, shall not exceed
two million dollars.
8. INDEMNIFICATION
a. Except as provided in Paragraph 8(b), Client shall indemnify,
defend and hold harmless Consultant and its subcontractors,
consultants, agents, officers, directors and employees (collectively
referred to hereinafter in this paragraph 8 as "Consultant ") from and
against all claims, damages, losses and expenses (including but not
limited to costs created by delay of the project, costs associated with
possible reduction of the property's value, and the fees and charges of
attorneys and experts) arising out of or resulting from the actual or
threatened release of a hazardous substance, or of any other
contaminant or pollutant, from the property into the environment,
whether sudden or not.
b. Client's duty to so indemnify, defend and hold harmless shall not
apply to such claims which are determined to result from Consultant's
recklessness or wilful misconduct, negligence, or breach of contract.,
and Consultant shall indemnify, defend and hold harmless the owner
of the subject premises, Client and Client's officers, partners,
employees agents and representatives, from and against all claims,
damages, losses and expenses, including reasonable attorney's fees
and expenses, arising out of or resulting from Consultant's
recklessness or wilful misconduct, negligence or breach of this
Agreement.
9. BILLING AND PAYMENT
a. Invoices will be due and payable within thirty (30) days of the
invoice date. If Client objects to all or any portion of any invoice,
Client will so notify Consultant in writing within twenty-one (21) days
of the invoice date, identify the cause of disagreement, and pay when
due that portion of the invoice not in dispute. The parties will
immediately make every effort to settle the disputed portion of the
invoice. The failure of Client to make written notification described
above shall constitute an unqualified acceptance of the invoice amount
due and payable, and waiver by Client of all claims with respect there-
to.
b. Invoices are delinquent if payment has not been received within
thirty (30) days from date of invoice. Client will pay interest of one -
and-one -half (1.5) percent per month on any delinquent amount,
excepting any portion of the invoiced amount in dispute and resolved
in favor of the Client. Payment thereafter will first be applied to
accrued interest and then to the principal unpaid amount. All time
spent and expenses incurred (including any attomey's fees and/or
collection fees) in connection with collection of any delinquent amount
will be paid by Client to Consultant. In the event Client fails to pay
Consultant within sixty (60) days after invoices are rendered, Client
agrees that Consultant will have the right to consider nonpayment as a
breach of the Agreement.
10. TERMINATION
This Agreement may be terminated by either party seven (7) days after
written notice in the event of any breach of any provision of this
Agreement or in the event of substantial failure of performance by the
other party, or if Client suspends the work for more than three (3)
months. In the event of termination, Consultant will be paid for
services performed prior to the date of termination plus reasonable
termination expenses, including but not limited to the cost of
completing analyses, records, and reports necessary to document job
status at the time of termination.
11. GOVERNING LAW AND SURVWAL
a. The law of the State of Iowa will govem the validity of this
agreement, its interpretation and performance.
b. If any of the provisions contained in the Agreement are held
illegal, invalid, or unenforceable, the enforceability of the remaining
provisions will not be impaired. Limitation of liability and indemnities
will survive termination of this Agreement for any cause.
12. SIGNATURES
The parties have read the foregoing, understand completely the terms
and willingly enter into this Agreement which will become effective on
the date accepted and signed by Client at the end of the attached
Proposal.
13. INSURANCE
a. Consultant shall provide and maintain at all time during the
performance of this Agreement insurance as follows:
Any policy of insurance or certificate of insurance required hereunder
shall be with a carrier authorized to do business in Iowa and a carrier
that has received a rating of A or better in the current Best's Rating
Guide.
b. Any policy, of insurance required hereunder shall provide for a
thirty-day notice to the City of any material change or cancellation of
the policy prior to its expiration date.
c. Consultant shall have its insurance agent or company certify in
writing that any policy of insurance required herein with an aggregate
limit of liability has not been reduced by paid or reserved claims at the
time of issuance of policy or certificate.
d. Consultant shall furnish copies of the following policies to the
City, with limits not less than the following, or greater if required by
law, and shall also furnish certificates of insurance from all
independent contractors or subcontractors hired by Consultant or any
independent contractor or subcontractor hired by the independent
contractor or subcontractor, which certificates shall provide evidence
of coverage for the following, with limits not less than the following,
or greater if required by law:
WORKERS COMPENSATION:
Coverage A: Statutory State of Iowa
Coverage B: Employers Liability
$100,000 each accident
$100,000 each employee by disease
$500,000 policy limit by disease
AUTOMOBILE LIABILITY:
Bodily Injury and Property Damage limit of liability of $1,000,000
combined single limit or equivalent
COMMERCIAL GENERAL LIABILITY:
General Aggregate Limit $2,000,000
Products - Completed Operation Aggregate Limit
Personal and Advertising Injury Limit
Each Occurrence Limit $1,000,000
Fire Damage Limit (any one occurrence)
Medical Payments $ 5,000
OR
Combined Single Limit $2,000,000
Medical Payments $ 5,000
Professional Liability $1,000,000
Excess Liability
$1,000,000
$1,000,000
$ 50,000
$2,000,000
Coverage is to include: Occurrence form, premises /operations/
products/completed operations coverage, independent contractor's
coverage, contractual liability, broad form property damage, personal
injury, City of Dubuque named as an additional insured with 30 days
written notice of change or cancellation.
CONFIDENTIALITY
Consultant shall keep all information gathered, discovered or otherwise
obtained in connection with any work performed by the Consultant or
its agents or representatives hereunder, including any information
contained in any report or other document prepared by Consultant
hereunder (the "Confidential Information ") strictly confidential and
shall not, without prior written consent of Client, and shall direct its
officers, directors, employees, subcontractors, agents and
representatives not to, reproduce, disclose, distribute or communicate,
directly or indirectly to any person or entity any such Confidential
Information; provided, however, that, Consultant may make any
disclosures required by law or legal process, provided that (i) prior
advance notice of any such disclosure is given to Client, and (ii)
Consultant uses its best efforts to cooperate with Client at Client's
request in seeking a protective order or other appropriate remedy with
respect to any such disclosure. Consultant shall be responsible for any
breach of this confidentiality provision by any of its officers, directors,
employees, subcontractors, agents or representatives.
Environmental Site Assessment User Questionnaire
To be provided prior to Site Reconnaissance
In order to qualify for one of the Landowner Liability Protections offered by the Small Business
Liability Relief and Brownfields Reauthorization Act of 2001, the user must provide the following
information (if available) to the Environmental Professional. Failure to provide this information
could result in a determination that "all appropriate inquiry" is not complete.
(1.) Are you aware of any environmental cleanup liens against the properties that are filed or
recorded under federal, tribal, state or local law? If yes, describe them.
(2.) Are you aware of any Activity and Use Limitations such as engineering controls, land use
restrictions, or institutional controls that are in place at the sites and/or have been filed or
recorded in a registry under federal, tribal, state or local law? If yes, describe them.
(3.) Do you have any specialized knowledge of or experience related to the properties or nearby
properties? For example, are you involved in the same line of business as the current or former
occupants of the properties or an adjoining property so that you would have specialized
knowledge of the chemicals and processes used by this type of business?
(4.) Does the purchase price being paid for the properties reasonably reflect the fair market value of
the properties? If you could conclude that there is a difference, have you considered whether
the lower purchase price is because contamination is known or believed to be present at the
properties? Please explain.
(5.) Are you aware of commonly known or reasonably ascertainable information about the
properties that would help Preston Engineering to identify conditions indicative of releases or
threatened releases? For example, as user,
(a) Do you know the past uses of the properties? If yes, summarize.
(b) Do you know of specific chemicals that are present or once were present at the all of
properties? If yes, list them.
(c) Do you know of spills or other chemical releases that have taken place at any of the
properties? If yes, describe.
(d) Do you know of any environmental cleanups that have taken place at any of the
properties? If yes, describe.
(6.) Based on your knowledge and experience related to the properties, are there any obvious
indicators that point to the presence or likely presence of contamination at any of the properties?
If yes, describe.
Additional User Questions
Completion of these questions is optional. Providing this information will help the environmental
professional to identify recognized environmental conditions.
1. Have you had the properties' abstract updated for this transaction?
2. For what purpose are you having a Phase I Environmental Site Assessment performed?
3. What type of property transaction is occurring? (e.g. sale, purchase, exchange)
4. How long have you been familiar with the properties?
5. What is the complete address and legal description of all the properties?
6. Do you have a map showing the boundaries that you can provide to Preston Engineering?
7. Are there additional concerns that should be investigated? For example: asbestos - containing
materials, radon, vapor encroachment screening, lead -based paint, lead or other contaminants in
drinking water, wetlands, regulatory compliance, cultural and historical resources, industrial
hygiene, health and safety, ecological resources, endangered species, indoor air quality,
biological agents, and mold. If yes, describe.
8. Who will be relying on the Phase I report?
9. The Environmental Professional is required to interview someone who has good knowledge of all
the properties and surrounding area. What is the name and contact information for Key Site
Manager(s)?
10. Do you have knowledge of any other information or documents that may help identify prior uses
or environmental conditions? Examples:
• Prior consultant reports
• Environmental site assessments
• Environmental compliance audits
• Environmental permits
• Above or below ground storage
tank registrations
• Registrations for underground
injection systems
• Material Safety Data Sheets
• Community Right -to -Know
Plans
• Safety Plan, Emergency Plan,
Spill Prevention Plan
• Geologic or geotechnical studies
or reports
• Notices or correspondence from
any government agency relating
to past or current violations of
environmental laws
• Hazardous waste generator
notices or reports
• Risk Assessments
• Vapor Encroachment Screening
If yes, identify the sources and how Preston Engineering may obtain access to them.
Completed by: Date:
(Print Name)
Consultant (Environmental Professional)
Preston Engineering, Inc.
4436 N. Brady Street
Davenport, Iowa 52806 -4009
Phone: (563) 388 -8288
Fax: (563) 388 -9003
Client
Deron L. Muehring, Civil Engineer
City of Dubuque, IA
50 W. 13 Street
Dubuque, Iowa 52001 -4805
Phone: (563) 589 -4276
Fax: (563) 589 -4205
Site /Project Location ( "Subject Property ")
Lower Bee Branch Creek Restoration Project Properties, Dubuque, Iowa
Description of Work: In accordance with the Terms for Consultant's Professional Services,
attached hereto, Consultant shall furnish the personnel, materials, and services necessary to
perform the following work:
A Phase I Environmental Site Assessment (ESA) of the real properties at the above - referenced
location in Dubuque, Iowa will be conducted by an Environmental Professional in accordance with
ASTM Designation: E 1527 -05 Standard Practice for Environmental Site Assessments: Phase I
Environmental Site Assessment Process (E 1527). The property consists of 27 parcels of land used
primarily as commercial properties and associated infrastructure in Dubuque, Iowa. The total parcel
acreage consists of approximately 32 acres.
Scope of Work
PROPOSAL
Proposal Number: 10 -578
REVISED
1. Consultant will perform a records review to identify existing and potential sources of
environmental contamination, including known or suspected releases of petroleum products or
hazardous substances on the properties or within the required minimum search distance from
the properties' boundaries.
• The review will consist of standard, reasonably ascertainable, publicly available, and
practically reviewable environmental record sources. An adjustment to the minimum
search distances maybe made, if the Consultant determines a need to do so, based on site
specific factors.
• Documentation of each source used will be provided in the report.
• Copies of, or references to, supporting documentation will be provided in the report.
• A judgment on the significance of each source will be provided in the report.
Page 1
2. Consultant will describe the physical setting of the properties using the current USGS 7.5 minute
topographic map(s) and other sources, as necessary.
3. Consultant will use standard historical sources to describe the history and the previous general
uses of the properties and the surrounding areas from the first developed use or from 1940,
whichever is earlier.
4. Consultant will perform a site reconnaissance to observe and document the properties' exterior
geologic, hydrogeologic, hydrologic, structural, and topographic features. The interior of
structure(s) will be observed, if access is provided, and the uses and conditions will be
documented. If Consultant cannot access all areas during the site visit, these conditions will be
reflected in•the Report. Unless it is prohibited, photos will be taken to document conditions
observed.
5. During the site visit, Consultant will attempt to observe and document the current and past uses
of the surrounding area. Consultant will observe surrounding properties from the property or
adjoining public rights -of -way and will not enter adjacent properties unless consent to access
adjacent properties is provided.
6. Consultant will attempt to interview past and present owners, the key site manager(s), past and
present occupants, and the user to obtain information indicating the properties' uses and
conditions.
7. Consultant will attempt to interview state and local government officials to obtain information
indicating the properties' uses and conditions.
8. Consultant will evaluate and document the findings, opinions and conclusions of the assessment
in a written report. This report will provide further recommendations for additional investigation,
as warranted. Two copies of the report will be provided.
Client Responsibilities
1. Prior to the site visit, the Client will complete and return the attached User Questionnaire to the
Consultant. Client understands that failure to provide this information could result in a
determination that "all appropriate inquiry" is not complete.
2. The Client shall identify which entities are entitled to rely upon the report. Lacking any such
identification, Consultant will assume that only the Users named above are entitled to rely upon
the ESA.
3. Prior to the site visit, the Client shall provide the name(s) and telephone number(s) of key site
manager(s) who can (a) authorize and provide access and agreements as necessary to enter upon
private lands and structures as required for the performance of the services of the Consultant and
(b) has knowledge of the uses and physical characteristics of the properties.
Page 2
4. Prior to the site visit, the Client shall provide the name, address(es) and telephone number(s) of
current owner(s) of the properties and legal description of the properties.
5. The Client shall provide access to previously developed information on the properties, if any,
such as environmental assessments and other information related to site conditions.
6. Client will provide Consultant chain of ownership information which may be contained in
insurance policies or abstract of title, if available.
7. Prior to the site visit, the Client will identify additional issues, if any, that need to be assessed
and are outside the scope of work. Additional issues include asbestos - containing materials,
radon, lead -based paint, lead or other contaminants in drinking water, wetlands, regulatory
compliance, cultural and historical resources, industrial hygiene, health and safety, ecological
resources, endangered species, indoor air quality, biological agents, and mold.
Charges and Payment for Work
For tasks 1 through 8 above, Consultant's .charges shall be on a Lump Sum Basis. Total fees and
expenses invoiced pursuant to this agreement shall be $3,200.00 (THREE THOUSAND TWO
HUNDRED AND NO /100 DOLLARS).
If more than two copies of the report are required by the Client, additional copies can be provided at
a rate of $25.00 per additional copy.
Barring delays caused by an act of nature (including presence of snow cover) or other unforeseeable
circumstances outside Consultant's control, Consultant agrees to perform the work by January 7,
2011, if authorized by December 13, 2010 of the execution of this agreement.
TERMS FOR CONSULTANT'S PROFESSIONAL SERVICES attached hereto, is an integral part of
this Proposal.
CONSULTANT:
PRESTON ENGINEERING, INC.
ACCEPTED
CLIENT:
(Type or print name)
By:
(Signatur
Date: December 8, 2010 Date: /2/i/(i
Page 3
1. THE AGREEMENT
a. This agreement is made by and between: Preston Engineering, Inc.
(herein after "Consultant ") and the party(ies) identified on the face of
the attached Proposal (hereinafter "Client ").
b. The Agreement between the parties consists of these Terms and
the attached Proposal. Together, these documents constitute the entire
Agreement, superseding any and all prior negotiations, cor-
respondence, or agreements either written or oral. Any changes to this
Agreement must be mutually agreed to in writing.
2. SITE ACCESS AND SITE CONDITIONS
a. To the extent that the project requires Consultant to access a
particular site, that site will be described in the Proposal, and Client
will grant or obtain free access to the site for all equipment and
personnel necessary for Consultant to perform the work set forth in
this Agreement.
b. Unless indicated otherwise in the Proposal, Client is responsible
for accurately delineating the locations of all subterranean structures
and utilities Consultant will take reasonable precautions to avoid
known subterranean structures.
c. As to subterranean structures and utilities not identified or
accurately located, Client waives any claim against Consultant, and
agrees to defend, indemnify, and hold Consultant harmless from any
claim or liability for injury or loss, in accordance with paragraph 8,
below.
d. Client shall furnish or cause to be furnished, or authorizes
Consultant to acquire, such reports, data, studies, plans, specifications,
documents and other relevant information required by Consultant for
proper performance of its services. Consultant shall be entitled to rely
upon the provided documents and information in performing the
services required under this Agreement however, Consultant assumes
no responsibility or liability for their accuracy or completeness. Docu-
ments provided by Client will remain Client's property.
e. Unless indicated otherwise in the Proposal, Consultant shall be
responsible only for its activities and those of its employees and
subcontractors on this project. Neither the professional activities nor
the presence of Consultant or its employees or its subcontractors on
the site shall imply that Consultant controls the operations of others,
nor shall this be construed to be acceptance by Consultant of any
responsibility for job -site safety.
3. STANDARD OF CARE
a. Services performed by Consultant under this Agreement shall be
conducted in a manner consistent with the level of care and skill
ordinarily exercised by members of the environmental and
geotechnical services professions practicing contemporaneously under
similar conditions in the locality of the project. Under no circumstance
is any warranty, expressed or implied, made in connection with the
providing of Consultant's services hereunder.
b. Client recognizes that subsurface conditions may vary from those
observed at locations where borings, survey, or explorations are made,
and that site conditions may change with time. Data, interpretations,
and recommendations by Consultant will be based solely on
information available to Consultant. Consultant is responsible for those
data, interpretations, and recommendations, but is not responsible for
other parties' interpretations or use of the information developed.
c. It is understood and agreed that Consultant is not, and has no
responsibility as, a handler, generator, operator, treater, or storer,
transporter or disposer of hazardous wastes, hazardous substances or
Terms for Consultant's Professional Services
Page 4
petroleum- contaminated materials found or identified at the site, and
that Client shall undertake or arrange for the handling, removal,
treatment, storage, transportation and disposal of same, including any
field or laboratory equipment that becomes contaminated by hazardous
substances encountered at the project site, and any samples secured by
Consultant which are found to be contaminated, except as to samples
required to be preserved, which such samples Consultant agrees to
preserve for a period not to exceed. forty-five (45) days after the
issuance of any document that includes the data obtained from those
samples.
4. CONTAMINATED EOUIPMENT AND CONSUMABLES
Any field or laboratory equipment that becomes contaminated by
hazardous substances encountered at the project site must be
decontaminated and contaminated consumables must be disposed of
properly. Client agrees to remunerate Consultant for costs associated
with decontamination of equipment and disposal and replacement of
contaminated consumables. For purposes of this Agreement, any
equipment that cannot be decontaminated shall be considered a con-
sumable.
5. DISCOVERY OF UNANTICIPATED HAZARDOUS MATERI-
ALS, HAZARDOUS CHEMICALS, OR HAZARDOUS WASTE
a. For purposes of this section, the term "hazardous material" means
any hazardous material, hazardous substance, hazardous waste, or
hazardous chemical including petroleum and petroleum contaminated
water or soil. Client shall provide consultant with any information
available to Client that relates to the identity, location, quantities,
nature, or characteristic of any hazardous material at, on or under the
site.
b. Hazardous material may exist at a site where there is no reason to
believe they could or should be present. Consultant and Client agree
that the discovery of unanticipated hazardous material constitutes a
changed condition mandating a renegotiation of the scope of work or
termination of services. Consultant and Client also agree that the
discovery of unanticipated hazardous material may make it necessary
for Consultant to take immediate measures to protect health and safety.
Client agrees to compensate Consultant for measures taken to protect
health and safety and/or any equipment decontamination or other costs
incidental to the discovery of unanticipated hazardous material.
c. Consultant agrees to notify Client when unanticipated hazardous
material or suspected hazardous material is encountered. Client agrees
to make any disclosure required by law to the appropriate governing
agencies. In the event the project site is not owned by Client, Client
recognizes that it is Client's responsibility to inform the property owner
of the discovery of unanticipated hazardous material or suspected
hazardous material. Client also agrees to hold Consultant harmless for
any and all consequences of disclosures made by Consultant which are
required by governing law.
6. FUTURE SERVICES
In the event this is a lump sum contract, all future services, including
but not limited to review of plans and specifications, construction
monitoring and post - construction work, rendered by Consultant at
Client's request for the project described in the
Proposal, shall be conducted under the terms of this Agreement.
7. LIMITATION OF LIABILITY
Except for liability resulting from the negligence, breach of contract,
recklessness or wilful misconduct of Consultant or its subcontractors,
consultants, agents, officers, directors or employees (collectively
referred to hereinafter in this Paragraph 7 as "Consultant "), the liability
of Consultant for Client's claims of loss, injury or damage, including
Client's claims of contribution and indemnification with respect to any
third -party claims which may be made against Client, shall not exceed
two million dollars.
8. INDEMNIFICATION
a. Except as provided in Paragraph 8(b), Client shall indemnify,
defend and hold harmless Consultant and its subcontractors,
consultants, agents, officers, directors and employees (collectively
referred to hereinafter in this paragraph 8 as "Consultant ") from and
against all claims, damages, losses and expenses (including but not
limited to costs created by delay of the project, costs associated with
possible reduction of the property's value, and the fees and charges of
attorneys and experts) arising out of or resulting from the actual or
threatened release of a hazardous substance, or of any other
contaminant or pollutant, from the property into the environment,
whether sudden or not.
b. Client's duty to so indemnify, defend and hold harmless shall not
apply to such claims which are determined to result from Consultant's
recklessness or wilful misconduct, negligence, or breach of contract.,
and Consultant shall indemnify, defend and hold harmless the owner
of the subject premises, Client and Client's officers, partners,
employees agents and representatives, from and against all claims,
damages, losses and expenses, including reasonable attorney's fees
and expenses, arising out of or resulting from Consultant's
recklessness or wilful misconduct, negligence or breach of this
Agreement.
9. BILLING AND PAYMENT
a. Invoices will be due and payable within thirty (30) days of the
invoice date. If Client objects to all or any portion of any invoice,
Client will so notify Consultant in writing within twenty-one (21) days
of the invoice date, identify the cause of disagreement, and pay when
due that portion of the invoice not in dispute. The parties will
immediately make every effort to settle the disputed portion of the
invoice. The failure of Client to make written notification described
above shall constitute an unqualified acceptance of the invoice amount
due and payable, and waiver by Client of all claims with respect there-
to.
b. Invoices are delinquent if payment has not been received within
thirty (30) days from date of invoice. Client will pay interest of one -
and- one -half (1.5) percent per month on any delinquent amount,
excepting any portion of the invoiced amount in dispute and resolved
in favor of the Client. Payment thereafter will first be applied to
accrued interest and then to the principal unpaid amount. All time
spent and expenses incurred (including any attorney's fees and/or
collection fees) in connection with collection of any delinquent amount
will be paid by Client to Consultant. In the event Client fails to pay
Consultant within sixty (60) days after invoices are rendered, Client
agrees that Consultant will have the right to consider nonpayment as a
breach of the Agreement.
10. TERMINATION
This Agreement may be terminated by either party seven (7) days after
written notice in the event of any breach of any provision of this
Agreement or in the event of substantial failure of performance by the
other party, or if Client suspends the work for more than three (3)
months. In the event of termination, Consultant will be paid for
services performed prior to the date of termination plus reasonable
termination expenses, including but not limited to the cost of
completing analyses, records, and reports necessary to document job
status at the time of termination.
11. GOVERNING LAW AND SURVIVAL
a. The law of the State of Iowa will govern the validity of this
agreement, its interpretation and performance.
b. If any of the provisions contained in the Agreement are held
illegal, invalid, or unenforceable, the enforceability of the remaining
provisions will not be impaired. Limitation of liability and indemnities
will survive termination of this Agreement for any cause.
12. SIGNATURES
The parties have read the foregoing, understand completely the terms
and willingly enter into this Agreement which will become effective on
the date accepted and signed by Client at the end of the attached
Proposal.
13. INSURANCE
a. Consultant shall provide and maintain at all time during the
performance of this Agreement insurance as follows:
Any policy of insurance or certificate of insurance required hereunder
shall be with a carrier authorized to do business in Iowa and a carrier
that has received a rating of A or better in the current Best's Rating
Guide.
b. Any policy of insurance required hereunder shall provide for a
thirty-day notice to the City of any material change or cancellation of
the policy prior to its expiration date.
c. Consultant shall have its insurance agent or company certify in
writing that any policy of insurance required herein with an aggregate
limit of liability has not been reduced by paid or reserved claims at the
time of issuance of policy or certificate.
d. Consultant shall furnish copies of the following policies to the
City, with limits not less than the following, or greater if required by
law, and shall also furnish certificates of insurance from all
independent contractors or subcontractors hired by Consultant or any
independent contractor or subcontractor hired by the independent
contractor or subcontractor, which certificates shall provide evidence
of coverage for the following, with limits not less than the following,
or greater if required by law:
WORKERS COMPENSATION:
Coverage A: Statutory State of Iowa
Coverage B: Employers Liability
$100,000 each accident
$100,000 each employee by disease
$500,000 policy limit by disease
AUTOMOBILE LIABILITY:
Bodily Injury and Property Damage limit of liability of $1,000,000
combined single limit or equivalent
COMMERCIAL GENERAL LIABILITY:
General Aggregate Limit $2,000,000
Products - Completed Operation Aggregate Limit
Personal and Advertising Injury Limit
Each Occurrence Limit $1,000,000
Fire Damage Limit (any one occurrence)
Medical Payments $ 5,000
OR
Combined Single Limit $2,000,000
Medical Payments $ 5,000
Professional Liability $1,000,000
Excess Liability
$1,000,000
$1,000,000
$ 50,000
$2,000,000
Coverage is to include: Occurrence form, premises /operations/
products /completed operations coverage, independent contractor's
coverage, contractual liability, broad form property damage, personal
injury, City of Dubuque named as an additional insured with 30 days
written notice of change or cancellation.
CONFIDENTIALITY
Consultant shall keep all information gathered, discovered or otherwise
obtained in connection with any work performed by the Consultant or
its agents or representatives hereunder, including any information
contained in, any report or other document prepared by Consultant
hereunder (the "Confidential Information ") strictly confidential and
shall not, without prior written consent of Client, and shall direct its
officers, directors, employees, subcontractors, agents and
representatives not to, reproduce, disclose, distribute or communicate,
directly or indirectly to any person or entity any such Confidential
Information; provided, however, that, Consultant may make any
disclosures required by law or legal process, provided that (i) prior
advance notice of any such disclosure is given to Client, and (ii)
Consultant uses its best efforts to cooperate with Client at Client's
request in seeking a protective order or other appropriate remedy with
respect to any such disclosure. Consultant shall be responsible for any
breach of this confidentiality provision by any of its officers, directors,
employees, subcontractors, agents or representatives.
Environmental Site Assessment User Questionnaire
To be provided prior to Site Reconnaissance
In order to qualify for one of the Landowner Liability Protections offered by the Small Business
Liability Relief and Brownfields Reauthorization Act of 2001, the user must provide the following
information (if available) to the Environmental Professional. Failure to provide this information
could result in a determination that "all appropriate inquiry" is not complete.
(1.) Are you aware of any environmental cleanup liens against the properties that are filed or
recorded under federal, tribal, state or local law? If yes, describe them.
(2.) Are you aware of any Activity and Use Limitations such as engineering controls, land use
restrictions, or institutional controls that are in place at the sites and/or have been filed or
recorded in a registry under federal, tribal, state or local law? If yes, describe them.
(3.) Do you have any specialized knowledge of or experience related to the properties or nearby
properties? For example, are you involved in the same line of business as the current or former
occupants of the properties or an adjoining property so that you would have specialized
knowledge of the chemicals and processes used by this type of business?
(4.) Does the purchase price being paid for the properties reasonably reflect the fair market value of
the properties? If you could conclude that there is a difference, have you considered whether
the lower purchase price is because contamination is known or believed to be present at the
properties? Please explain.
(5.) Are you aware of commonly known or reasonably ascertainable information about the
properties that would help Preston Engineering to identify conditions indicative of releases or
threatened releases? For example, as user,
(a) Do you know the past uses of the properties? If yes, summarize.
(b) Do you know of specific chemicals that are present or once were present at the all of
properties? If yes, list them.
(c) Do you know of spills or other chemical releases that have taken place at any of the
properties? If yes, describe.
(d) Do you know of any environmental cleanups that have taken place at any of the
properties? If yes, describe.
(6.) Based on your knowledge and experience related to the properties, are there any obvious
indicators that point to the presence or likely presence of contamination at any of the properties?
If yes, describe.
Additional User Questions
Completion of these questions is optional. Providing this information will help the environmental
professional to identify recognized environmental conditions.
1. Have you had the properties' abstract updated for this transaction?
2. For what purpose are you having a Phase I Environmental Site Assessment performed?
3. What type of property transaction is occurring? (e.g. sale, purchase, exchange)
4. How long have you been familiar with the properties?
5. What is the complete address and legal description of all the properties?
6. Do you have a map showing the boundaries that you can provide to Preston Engineering?
7. Are there additional concerns that should be investigated? For example: asbestos - containing
materials, radon, vapor encroachment screening, lead -based paint, lead or other contaminants in
drinking water, wetlands, regulatory compliance, cultural and historical resources, industrial
hygiene, health and safety, ecological resources, endangered species, indoor air quality,
biological agents, and mold. If yes, describe.
8. Who will be relying on the Phase I report?
9. The Environmental Professional is required to interview someone who has good knowledge of all
the properties and surrounding area. What is the name and contact information for Key Site
Manager(s)?
10. Do you have knowledge of any other information or documents that may help identify prior uses
or environmental conditions? Examples:
• Prior consultant reports
• Environmental site assessments
• Environmental compliance audits
• Environmental permits
• Above or below ground storage
tank registrations
• Registrations for underground
injection systems
• Material Safety Data Sheets
• Community Right -to -Know
Plans
• Safety Plan, Emergency Plan,
Spill Prevention Plan
Completed by: Date:
(Print Name)
• Geologic or geotechnical studies
or reports
• Notices or correspondence from
any government agency relating
to past or current violations of
environmental laws
• Hazardous waste generator
notices or reports
• Risk Assessments
• Vapor Encroachment Screening
If yes, identify the sources and how Preston Engineering may obtain access to them.