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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 bigbd All- America Cily 1 .. ► 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.