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08-076 TRC Engineers Inc.AGREEMENT ~ CITY OF CUPERTINO /~ ~ ~ 10300 Torre Avenue 1 / Cupertino, CA 95014 1/ 408-777-3200 No. ~.~6 O..S~¢ BY THIS AGRE~MENT, made and entered into this 97fh day of July , 2008, by and between the CITY OF CUPERTINO (Hereinafter referred to as CI'T'Y) and TRC Engfneerings, lnc., James Schwartr, Address: 230? Camino Ramon., Su ?50, San Ramon, CA 94583;Phone: 925-275-2550; Fax: 925-275-2555; e-mail: ~PSchwaHz@TRCSOLUTIONS.com Hereinafter referred as CONTRACTOR), in consideration of their mutual covenants, the parties hereto agree as follows: CONTRACTOR shall provide or furnish the foilowing specifed services and/or materiais: Sterting Barnhart Propertyr Environmental Site Assessment and Soil Testing EXHIBITS: The following attached exhibifs hereby are made part of this Agreement: Exfiibit "A" Proposal TERMS: The services and/or materials furnished under this Agreement shall commence on July 97, 2008, and shall be completed before September 30, 2008 COMPENSATION: For the full pertormance of this Agreement, CITY shall pay CONTRACTOR: Environmentai Site Assessment shall be a~xed fee of $ 4,150.80; Soil Testing shali lYof to Exceed $ 5,OQ0.00 based on a 7'ime and Maferials California Labor Code, Seeiion 1771 requires the payment of prevailing wages to alI workers employed on a Pubiic Works contract in excess of $9 ,000.00. GEHERAL TERMS ANB CON01710NS Hold Harmless. Contractor agrees to save and hold harrnless the City, its oificers, agerrts and empioyees from any and all damage and liability due to negligence, errors and omissions, including all casis of defendirtg any claim, caused by or arising out of the performance of this Agreement. City sha{I not be liable for acis of Contractor in performing services desaibed herein. tnsurance. Should the City require evidence of insurability, Contractor shall file with City a Certificate of Insurance before cammancing arry services under this,~qreement, Said Certificate shafl be subject to the approval of City's Director of Administrative Senrices. Non-Discrimination. No discrimination shail be made in !he employment of persons under this Agreement because of the race, color, nationa! origin, ancestry, religan or sex of such person. I~tsrest of Contractor. It is understood and agreed that this Agreement is rrot a contract of empioyment in the sense that the relationship of master and servant exists between City a~ undersigroed. At atl Gmes, Contrector shall be deemed to be an independent wntractor and Conirador is not auihorized to bind the City to any contracts or other obEigations In executing ihis a8reement. Contractor certifies that no one who has or will have any flnancial interest under this Agreement is an officer ot employee of City. Changes. This Agreement shal( not be assigned or transferred without the written consent of ihe City. No changes ar variations of any kind a~e author~zed without the written consent of the City. CONTRACT CO-ORDINATOR and representative for CITY shall be: ENTE~~~ NAME: Terry Greene DEPARTMENT: Public Works Department This Agreement shall become effective upon its execution by CITY, in witness thereof, the parties have executed this Agreement the day and year first written above. CONTRACTOR: B '`~C..~ ~~~ y ~r Title (~l2irr/G/P/~'(- Soc. Sec. # or Tax ~~~~ ~~~~ w no~n~iw ~ c CITY OF CUPERTINO: By -___. Title: Terry Greene, AIA, City Architect EXPENDITURE DiSTRIBU7lON P1r r ~1v.r.~,v 7 E 23~ Q - -- -- 420-9126-9 -~" $ 9,150.00 CITY DATE C ~' 2301 Camino Ramon Suite 150 San Ramon, CA 94583 925.275.2550 awch~ 925.275.2555 eaz wwva.TRCsra lution s.cam Ms. Gail Seeds RE: CITY OF CUPERTINO 10300 Torre Ave. Cupertino, California 95014 Dear Ms. Seeds: EXHIB IT A July 16, 2008 162249 / P17954 AGREEMENT FOR PHASE I ENVIRONMENTAL SITE ASSESSMENT STERLING BARNHART PROPERTY CUPERTINO, CALIFORNIA Thank you for requesting our agreement for Phase I Environmental Site Assessment (Phase I) services at the Sterling Barnhart site in Cupertino, California. This document will serve as our agreement to work together. The purpose of perForming this Phase I is to strive to document recognized environmental conditions at the site related to current and historic use of hazardous substances and petroleum products. The term "recognized environmental conditions" means the presence or likely presence of hazardous substances or petroleum products on a property under conditions that indicate a significant release or significant threat of a release into the ground, groundwater, or surface water. Please note that our proposed scope of work does not include sampling or analysis of on-site building materials, air, soil, soil vapor, or groundwater. THE PROJECT The site is located on two parcels (375-23-046 and -047) on the 10000 block of Sterling Boulevard, near the northeastern intersection with Barnhart Avenue in Cupertino, California, and is currently owned and occupied by the San Jose Water Company. You indicated that the City of Cupertino (City) plans to purchase the site and is considering developing the parcel with a community park. We understand that there are both active and abandoned water system infrastructures on the property, and that the City would like environmental due diligence performed prior to completing the purchase transaction. The site is bounded by Starett Court and residential properties to the north, Barnhart Avenue and a vacant property to the south, Lawrence Expressway to the east, and residential properties to the west. City of Cupertino Sterling Barnhart LOCAL EXPERIENCE Since 1969, TRC has provided geotechnical and environmental services for more than 8,000 projects, including several projects near the site. Since we are familiar with the site area, our local experience will enable us to e~ciently provide our services to you. Our goal is to develop and implement a program to cost-effectively evaluate site conditions in a timely manner and allow you to make informed decisions relating to the property. For more information about TRC's range of services and projects, please visit our website at www.tresolutions.com. We have prepared this agreement based on our previous work in the area and our understanding of your needs. SCOPE OF SERVICES The scope of work presented below is in general accordance with the American Society for Testing and Materials (ASTM) Designation E 1527-05. The ASTM scope of work is accepted by most lenders and considered the industry standard for property transaction environmental due diligence. This work will be performed under the oversight of an environmental professional who meets the ASTM E 1527-05 qualifications. Please communicate to us any specialized knowledge that you may have regarding the environmental conditions of the property or if the purchase price of the property is being discounted due to environmental conditions. Site Visit Our representative will visit the site to observe existing conditions; reconnoiter the site to note readily observable indications of present or past activities that may have or could, in our opinion, cause significant site contamination; and collect readily available information on the current site usage. If made readily available, our representative will review facility records, such as hazardous materials management plans and inventories, disposal records, and permits. These records help evaluate the potential for hazardous materials to impact the site. Interviews If contact information is provided by you, we will attempt to interview the current and past owners, operators and occupants of the property who are likely to have material information regarding the potential for contamination at the property and we will also make a reasonable attempt to interview past owners, operators and occupants of any abandoned neighboring properties where there is obvious evidence of unauthorized uses. The above interviews may be performed in person, by telephone or by providing a written environmental questionnaire. However, please note that contact information must be provided by you. ~„ T~/'~ Page 2 t`,r ~ v 162249 / P17954 City of Cupertino Sterling Barnhart Site Hydrology We will prepare a brief summary of site hydrology, including depth to groundwater and expected groundwater flow direction. This information will aid in evaluating the potential for nearby spill incidents to impact the site. Site Vicinity Reconnaissance At the time of the site visit, our representative will conduct a brief drive-by survey of the adjacent properties to note the current land use and, if possible, note facilities that appear likely to use, handle, or store significant quantities of hazardous materials. Site History Review To help establish past site and immediate vicinity usage, our study will include a review of the following historical sources, if they are readily available: 1) aerial photographs; 2) topographic maps; 3) city directories; and 4) Sanborn fire insurance maps. In addition, we will review previously prepared environmental reports and/or Chain-of-Title documents for the site on a time and material basis, if you provide these documents to us. Please note that ASTM E 1527 requires that obvious uses of the property be identified from the present back to the property's obvious first developed use or back to 1940, whichever is earlier. Review of historical sources at less than approximately five year intervals is not required by ASTM E 1527. If the specific use of the property appears unchanged over a period longer than five years, then it is not required by ASTM E 1527 to research the use during that period (for example, if fire insurance maps show the same building in 1940 and 1960, then the period in between need not be researched). If the above requirement cannot be fulfilled, our report will provide the recommendation that additional research be conducted. Regulatory Database Review To help establish the presence and type of contamination incidents reported in the site vicinity, we will acquire and review a regulatory agency database report that includes a radius map with symbols representing the approximate location of identified incidents with respect to the site. Agency File Reviews To obtain site-specific commonly known and reasonably ascertainable inforrnation on hazardous materials usage and to evaluate the compliance and permit status of the provided site address(es), available files at the local fire, health, building and Publicly Owned Treatment Works (POTV1~ departments, as well as the Santa Clara Valley Water District, will be reviewed. Agency files often contain site history details needed to meet ASTM requirements including information regarding past occupants and owners of the site (and dates of ownership or occupancy), site uses, equipment installations (such as tanks and sumps), agency ~~ TRG Page 3 162249 / P17954 City of Cupertino Sterling Barnhart inspection records, wastewater discharge records, well construction and use details, etc. Please provide us with all site addresses for current and historic occupants. Report We will prepare a Phase I Environmental Site Assessment report presenting the results of our study. The report will include a vicinity map, site plan, and selected copies of the records obtained and reviewed. The conclusions and recommendations presented in the report will be based on our interpretation of the readily available information gathered, site history and usage data, and our observations of the existing site conditions. We will summarize the recognized environmental conditions derived from readily observed site conditions and reasonably ascertainable information. We will attempt to identify and comment on significant data gaps that affect the ability to identify recognized environmental conditions. This report will be valid for 180 days from its date. Schedule We are prepared to begin work upon receiving your written approval of this agreement. We anticipate that approximately three to four weeks will be required to issue our report to you. FEES AND TERMS We will perform the Phase I Environmental Site Assessment for the fixed fees presented in Table 1 in accordance with the attached terms and conditions. Payment for work shall be due and payable upon receipt of TRC's statement. To be recognized, any dispute over charges must be claimed in writing within 30 days of the billing date. Disputes or questions about a statement shall not be cause for withholding payment for remaining portions due. A service charge of 1 percent per month shall be assessed on balances unpaid 30 days after the issue date of TRC's statement to compensate TRC for the cost and burden of administering the account and collecting fees owed. Requested changes to this contract must be approved in writing before we proceed. Additional services that are not outlined in this agreement, such as attendance at project meetings, preparation of draft reports, and review of provided site environmental reports will be charged on a time- and-expense basis. As we have not yet esfablished a credit relationship with you, a retainer of $1,500 is required prior to the start of work, with the balance due prior to the release of our final report. Page 4 ~L TRC 162249 / P17954 City of Cupertino Sterling Barnhart TABLE 1. FIXED FEE FOR PHASE I ENVIRONMENTAL SERVICES Phase I Environmental Site Assessment 54,150 IniGal to SIt2 VISIt Authorize Interviews Questionnaire Site Hydrology Site Vicinity Reconnaissance Site History Review Regulatory Database Review Drafting and Report preparation Aqency File Reviews Please note that a more reliable assessment of environmental conditions can be obtained by expanding the scope of the Phase I activities and/or analyzing soil, soil vapor and groundwater samples. If you desire this work after completion of our Phase I, the scope of work and budget for further investigations can be developed. AUTHORIZATION Please acknowledge your receipt of and agreement with the terms contained in this agreement by signing the last page and returning one signed original to us. As soon as we receive the retainer and a signed agreement, we will begin work. We look forward to working with you on this important project. Thank you for choosing us to assist you. If you have any questions, please call and we will be glad to discuss them with you. Very truly yours, TRC ENGINEERS, INC. i~ ,,~'J __---.-. ~,. James P. Schwartz, P.G. Principal Geologist Agreement accepted by: CITY OF CUPERTINO Signature Copies: Addressee (via e-mail and USPS) Attachments: Terms and Conditions of Agreement Schedule of Hourly Fee Rates SR:P17954 [162249] Sterling Bamhart Phase I pro 071608.doc Copyright m 2008 TRC c~TRc Date Please Print Name and Title PLEASE COMPLETE AND RETURN THE FOLLOWING QUESTIONNAIRE ALONG WITH THE SIGNED AGREEMENT. ~ Page 5 162249/P17954 City of CupeRino Sterling Barnhart INFORMATION NEEDED TO BEGIN PHASE I ENVIRONMENTAL SITE ASSESSMENT (PLEASE ATTACH ADDITIONAL PAGES IF NEEDED) Per ASTM E1527, the User (aClient Company») of a Phase I environmental site assessment has the responsibility to communicate certain information to the environmental professional (TRC). This information and other data needed to facilitate the timely completion of our report are listed below. 1) PLEASE PROVIDE A SITE PLAN THAT ACCURATELY SHOWS THE PROPERTY BOUNDARIES. 2) LIST ALL SITE ADDRESSES (CURRENT AND HISTORICAL). SOME SITES HAVE MULTIPLE ADDRESSES; ALL ARE NEEDED. THIS INFORMATION WILL BE RELIED UPON DURING OUR REGULATORY AGENCY FILE REVIEWS AND CITY DIRECTORY SEARCH. 3) PLEASE PROVIDE THE APN NUMBER(S) FOR THE PROPERTY: 4) PLEASE PROVIDE THE SITE CONTACT NAME, PHONE NUMBER AND E-MAIL ADDRESS. THIS PERSON WILL BE CONTACTED TO ARRANGE FOR ACCESS TO THE SITE. NAME: PHONE: EMAIL: 5) PLEASE PROVIDE THE PROPERTY OWNER'S NAME, EMAIL ADDRESS AND PHONE NUMBER. NAME: PHONE: EMAI L' 6) IF REASONABLY ASSERTAINABLE, PROVIDE CONTACT INFORMATION FOR ALL PRIOR OWNERS. 7) LIST CURRENT SITE OCCUPANTS INCLUDING CURRENT USE AND YEARS OF OCCUPANCY. ~CCUPANT ITE SE YenRS oF OccuaaNCr (e.a.. From 1975 to 19831 8) LIST PREVIOUS SITE OCCUPANTS INCLUDING PRIOR USE AND YEARS OF OCCUPANCY. IF REASONABLY ASSERTAINABLE, ALSO PROVIDE CONTACT INFORMATION TO FACILITATE INTERVIEWS. OCCUPANT ITE E YEARS OF OCCUPANCY (@.0.. F~ORI 1975 t0 19831 9) ARE YOU AWARE OF ANY ENVIRONMENTAL CLEANUP LIENS OR ACTIVITY AND LAND USE LIMITATIONS THAT ARE FILED OR RECORDED FOR THE SITE UNDER FEDERAL, TRIBAL, STATE OR LOCAL LAW? 10) DO YOU HAVE ANY SPECIALIZED KNOWLEDGE OR EXPERIENCE RELATED TO THE PROPERTY OR NEARBY PROPERTIES THAT IS MATERIAL TO RECOGNIZED ENVIRONMENTAL CONDITIONS IN CONNECTION WITH THE SITE? c;ontinuea on neM page Q Page 6 ~~ ~, `~ 162249/P17954 City of Cupertino Sterling Barnhart 11) IN A TRANSACTION INVOLVING THE PURCHASE OF REAL ESTATE, DOES THE PURCHASE PRICE BEING PAID FOR THIS PROPERTY REASONABLY REFLECT THE FAIR MARKET VALUE OF THE PROPERTY? IF YOU 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 PROPERTY? 12) ARE YOU AWARE OF COMMONLY KNOWfV OR REASONABLY ASCERTAINABLE INFORMATION ABOUT THE PROPERTY THAT WOULD HELP TO IDENTIFY CONDITIONS INDICATIVE OF RELEASES OR THREATENED RELEASES? FOR EXAMPLE, a.) Do you know of specific chemicals that are present or once were present at the property? b.) Do you know of spills or other chemical releases that have taken place at the property? c.) Do you know of any environmental cleanups that have taken place at the property? 13) DO YOU KNOW WHETHER ANY OF THE DOCUMENTS LISTED BELOW EXIST? (Please circle any that are known). IF SO, COPIES SHOULD BE PROVIDED IF POSSIBLE WITHIN REASONABLE TIME AND COST CONSTRAINTS. Environment Site Assessment Reports Geotechnical Reports, Hydrogeologic Studies or Risk Assessments Compliance Audit Reports or Community Right-to-Know Plans Safety Plans; Preparedness/Prevention Plans; spill prevention, countermeasure, and control plans; etc Environmental Related Permits or Violation Notices Underground or Aboveground Storage Tanks Documents or Permits Hazardous Material ManagemenUBusiness Plans or Chemical Inventories 14) ARE THE SERVICES TO BE PROVIDED BY TRC SUBJECT TO PREVAILING WAGE LAWS (i.e., WILL THIS PROJECT RECEIVE FEDERAL, STATE OR LOCAL FUNDING)? 15) PLEASE PROVIDE THE INVOICE BILLING ADDRESS AND CONTACT PERSON IF DIFFERENT FROM THAT LISTED AS THE ADDRESSEE OF THIS PROPOSAL. , ~~~ Page 7 `~ 162249 / P17954 L TR~ Schedule of Hourly Fee Rates Prevailing Wage Through December 31, 2008 Senior Principal Engineer or Geologist $214.00 Principal Engineer or Geologist $205.00 Senior Project Engineer or Geologist $178.00 Project Engineer or Geologist $155.00 Senior Staff Engineer or Geologist $145.00 Staff Engineer or Geologist $130.00 Senior Engineering Technician II $145.00 Senior Engineering Technician I $130.00 Engineering Technician $124.00 Technician II $120.00 Technician I $113.00 Trainee $103.00 Dispatcher/Lab Technician $103.00 Technical IllustratoNCAD $78.00 Technical Assistant $78.00 Administrative Clerk $72.00 Equipment Charges Field Vehicle $10.00 per hour Digital Camera $10.00 per day Laboratory Equipment $11.50 per hour Nuclear Moisture-Density Gauge $7.50 per test Hand-Held Global Positioning System (5 to 10 foot accuracy) $35.00 per day Backpack Global Positioning System (1 to 3 foot accuracy) $95.00 per day PDR-1000 Dust Meter $100.00 per day or $300.00 per week Slope Inclinometer $160.00 per day Organic Vapor Meter $125.00 per day Depth Sounder $30.00 per day 55-gallon drum $50.00 each Brass Liners $5.00 each Hand Auger $15.00 per day Modeling Software $15.00 per hour AutoCad Illustration Software $20.00 per hour Plotter $5.00 per plot Charges for employees will be made in accordance with the Schedule of Hourly Fee Rates. These rates are subject to change in January 2009. For other than professional employees, time spent over 8 hours per day and on Saturdays will be charged at 1.5 times the hourly billing rate. Work on Sunday will be charged at 2.0 times the hourly billing rate, and holiday work will be charged at 2.5 times the hourly billing rate. All field personnel charges are portal to portal. Services pertormed under fixed fee contracts will be charged at the agreed fixed fee. For time and materials contracts, expenses and other similar project-related costs are billed at cost plus 18.5 percent. Payment for Work and expenses shall be due and payable upon receipt of TRC Engineers Inc.'s statement. To be recognized, any dispute over charges must be claimed in writing within thirty (30) days of the billing date. Disputes or questions about a statement shall not be cause for withholding payment for remaining portions due. Amounts unpaid thirty (30) days after the issue date of TRC Engineers Inc.'s statement shall be assessed a service charge of one (1) percent per month on balances outstanding to compensate TRC Engineers Inc. for the cost and burden of administering the account and collecting fees owed. 151931 2008 PW Hr Rate 07000/001/002 TERMS AND CONDITIONS OF AGREEMENT 1.0 AGREEMENT 1.1 TRC Engineers, Inc.'s services are defined by and limited to (1) those services (the "Work') described in the attached proposal, which is incorporated by this reference, and (2) these Terms and Conditions of Agreement ("Terms and Conditions'). Together, the proposal and Terms and Condkions fortn our Agreement. This Agreement represents the parties' entire egreement and supersedes all prior negotiations, representations, or agreements, either written or oral. The Agreement can only be amended by a written instrument signed by both the Client and TRC Engineers, Inc. Failure to immediately enforce any provision in this Agreement shall not constitute a waiver ot the right to enforoe that provision or any other provision. 2.0 MISCELLANEOUS CHARGES 2.1 Expenses and other similar project-related costs are billed at cost plus eighteen and one-half (18'r4) percent. Reproduction charges will be billed at twenty-five cents ($0.25) per page plus the technical assistanYs time billed at their hourly rate. Fixed fee services will be pertormed for the agreed fixed fee sum. 3.0 TERMS OF PAYMENT 3.1 The ClienYs obligation to pay for the Work is in no way dependent upon the ClienYs ability to obtain financing or dependent upon the ClienYs successful completion of the project. Payment for Work and expenses shall be due and payable upon receipt of TRC Engineers, Inc.'s statement. To be recognized, any dispute over charges must be Gaimed in writing within thirty (30) days of the billin8 date. Disputes or questions about a statement shall not be cause for withholding payment for remaining portions due. Amounts unpaid thirty (30) days after the issue date of TRC Engineers, Inc.'s statement shall be assessed a service charge of one (1) percent per month on balances outstanding to compensate TRC Engineers, Inc. for the cost and burden of administering the account and collecting fees owed. Should any legal proceeding be commenced between the parties to this Agreement seeking to enforce any of its provisions, including, but not limited to, fee provisions, the prevailing party in such a proceeding shall be entitled to, in addition to such other relief as may be granted, a reasonable sum for attomeys' fees and other costs. For purposes of this provision, "prevailing party° shall inGude a party which dismisses an action for recovery hereunder in exchange for payment of the sum allegedly due, performance of covenants allegedly breached, or consideration substantially equal to the relief sought in the aetion or proceeding. 3.2 TRC Engineers, Inc. may at its option withhold delivery of documents and other data pending receipt of payment for all Work rendered and shall have no liability to the Client for delay or damage caused because of such withholding. 3.3 TRC Engineere, Inc. reserves the right to suspend services should payment not be received within 60 days of the date of the invoice following pertormance of services described in this Agreement and on invoice. 3.4 No deduction shall be made from TRC Engineers, Inc.'s, its consultants' or its subcontractors' compensation due to penalty, liquidated damages, or other sums withheld from payments to conVactors, or due to the cost of changes in the Work other than those for which TRC Engineers, Inc. or its consultants has been adjudged to be liable. 4.0 INSURANCE 4.1 TRC Engineers, Inc., its officers, employees, and agents (hereafter referred to as TRC) are proteeted by Worker's Compensation Insurance (and/or Employer's Liabilky Insurance), by Commercial Generel Liability Insurence for bodily injury and property damage, and by Professional Liability Insurence (inGuding Contractor's Pollution Liability Insurance), end will fumish certificates thereof upon request. Client specifically agrees that TRC will not be responsible for property damage from any cause, inGuding fire and explosion, beyond the amounts actually paid by TRC's insurance cerriers under TRC's available insurence. b.0 LIMITATIONS 5.1 Client recognizes the inherent risks connected with construction activities, geotechnical investigations, environmental investigations, and assessments. Client also recognizes that actual conditions at the site may vary from those observed by TRC when pertorming the Work. Client specfically acknowledges and agrees that the interpretations and recommendations of TRC are based on infortnation actually reviewed and conditions actually observed by TRC. TRC shall not be responsible for the validity or accuracy of data collected by others or interpretations made by others. 5.2 The Client agrees to defend and indemnify TRC and its employees, consultants and subcontractors from any and all Gaims, damages, costs, and losses (inGuded attomeys' fees and costs) arising out of or in any way related to the Work or the performance or non-pertortnance of obligations under this Agreement except when the Claim arises from the established sole negligence of TRC and its employees, consultants and subcontractors or where the Claim arises from the willful, wanton, or reckless conduct of TRC and its employees, consultants and subcontractors. 5.3 In pertorming its professional services, TRC will strive to use that degree of care and skill ordinarily exeroised, under similar circumstances, by members of its profession practicing in the same or similar locality and under the same standard of care. TRC's good faith reliance on representations of building, planning, regulatory or other public officials shall satisfy and fall within the standard of care. No warcanty, expressed or implied, is made or intended by TRC by the proposal for consulting services, the contract between TRC and Client, or by fumishing oral ar written reports of the findings made to the Client or any other person. 5.4 This paragraph limits TRC's liability - READ IT CAREFULLY. The Client understends and acknowledges that the Work poses certain risks to both TRC and the Client. Client further acknowledges and agrees that the amount of risk that TRC accepts by this Apreement is commensurete with the amount of compensation received under this Agreement for the Work. TRC's fee for the Work is based on and reflects ClienYs agreement to limit TRC's liability as described below. Client specifically acknowledges and agrees that but for this promise to limit TRC's liability, TRC's fee would be significantly higher to accommodate TRC for the risks posed by the Work and entering this Agreement. Client acknowledges its right to discuss this provision with legal counsel and negotiate with TRC regarding this provision and the proposed fee. In reliance on the foregoing and in consideration for the fee proposed, Client specfically acknowledges and agrees that, to the fullest extent pertnitted by law, TRC's total liability for any and all injuries, claims, liabilities, losses, costs, expenses, or damages whatsoever inGuding, without limitation, attomeys' fees and legal costs (hereinafter "Claims°) to Client and any third party arising out of or in any way related to the Work or this Agreement from any cause or ceuses inGuding, but not limited to, TRC's negligence, errors, omissions, or breach of contract or any duty, is limited to and shall not exceed $50,000 or the amount of TRC's fee, whichever is greater (Option 1) except when the Claim arises from the sole negligence of TRC or where the Claim arises from the willful, wanton, or reckless conduct of TRC. In consideretion of an additional fee of four (4) percent of TRC's total Work fee or $400, whichever is greater, TRC will reise the limitation of liability up to the amount actually paid by TRC's insurance carriers for the Claims under TRC's available insurance coverage (Limitetion Increase) if and only 'rf Client makes its written request for the Limitation Increase before the commencement of the Work and Client and TRC each initial and date this paragraph 5.4 below (Option 2) except when the Claim arises from the sole negligence of TRC or where the Claim arises from the willful, wanton, or reckless conduct of TRC. LIMITATION INCREASE: AGREED THAT LIMITATION OF LIABILITY INCREASED TO ACTUAL AMOUNT OF PROCEEDS PAID BY TRC'S INSURANCE CARRIERS IN EXCHANGE FOR ADDITIONAL FEE OF FOUR (4) PERCENT OF TOTAL SERVICE CHARGE OR 5400, WHICHEVER IS GREATER. Client Initial Date TRC Initial Date 5.5 Client agrees on its behalf and on behalf of ClienYs officers, directors, partners, principals, agents, employees, successors, representatives, and assignees (collectively referred to as "Client Group') that in no event shall any action or proceeding be brought against TRC by Client or Client Group for any Gaim or cause of action arising from or in any way related to the Work or this a8reement unless such action or proceeding is commenced within three (3) years from the Date of Completion of Work provided by TRC under this Agreement. Client and Client Group agree and acknowledge that the limitations period set forth herein supersedes, replaces, and supplants any and all limitation periods which would otherwise apply including, but not limited to, those appearing in the Califomia Code of Civil Procedure. The Date of Completion shall be the date of the final invoice for the Work perfortned under this Agreement. 5.6 If Client requests that TRC's work product be relied upon by a third party, inGuding, but not limited to, a lender, Client spec'fiically agrees to provide the third party with a copy of these terms and conditions and Client agrees to require said third party to agree to limit TRC's total liability to Client and any TRC Engineers Tertns & Conditions - July 2007.doc -1 - third party as described in paragraph 5.4 above, and Client agrees to defend and indemnify TRC and iffi employees, consultents and subconVactors from any and all third party claima, damages, costs, and losses arising out of or in any way related to the Work or the performance or non-pertortnance of obligations under this Agreement except when the Claim arises from the sole negligence of TRC and its employees, consultants and subcontractors or where the Claim arises from the willful, wanton, or reckless conduct of TRC. Any third party which accepts TRC's work product does so under the strict understanding that the third party is bound by all provisions in these Terms and Conditions inGuding, but not limited to, the provisions of paragraphs 5.4 and 5.5, above, and this paragraph 5.6. Every report, recommendation, finding, or conGusion issued by TRC shall be subject to the limitations stated therein. 5.7 TRC and Client waive consequential damages for claims, disputes, or other matters in question arising out of or relating to this Agreement. This mutual waiver is applicable, without limitations, to all consequential damages due to either party's termination. 6.0 SCOPE AND EXECUTION OF SERVICES 6.1 TRC will serve the Client by providing professional counsel and technical advice based on infortnation fumished by the Client. The Client will make available to TRC all known infortnation regarding existing and proposed conditions of the site, including the location of all underground utilities and installations, and will immediately transmit any new information that becomes available or eny change in plans. When hazardous materials are known, assumed or suspected to exist at a site, TRC may be required by law to take appropriate precautions to protect the health and safety of its personnel. Client hereby warrents that if it knows or has any reason to assume or suspect that hezardous materials may exist at the projeot site, Client will immediately inform TRC and warrants that Client has done its best to inform TRC of the known or suspected hazardous materials' type, quantity, and location. Client and TRC agree that TRC shall not be responsible for any claims, damages, costs, or losses arising from or in any way related to conditions not actually encountered during the course of TRC's work and TRC shall not have any liability or responsibility for losses resulting from inaccurate or incomplete information supplied by Client, and Client agrees to defend and indemnify TRC against Gaims, damages, costs, or losses arising there from. TRC shall not be liable for failing to discover any condkion the discovery of which would reasonably require the performance of services not authorized by Client. 6.2 TRC will diligenUy proceed with its services and will submit its report in a timely manner, but it is expressly agreed and understood by Client that TRC shall not be held responsible for delays occasioned by factors beyond its conVol, nor by fa~tors which could not reasonably have been foreseen at the time of the execution of the Agreement between the parties. TRC will not be responsible for any damages, consequential or othervvise, caused by delays in the completion of the Work. TRC mekes no warranties regarding time of completion of the Work. In the event that the Work is interrupted or delayed due to causes beyond TRC's control (inGuding, but not limited to, acts of God, war, riot, insurrection, inGement weather, fire acts of third parties or govemmental bodies, or matters within the control of Client), TRC shall be paid compensation for labor, equipment, and other costs TRC incurs in order to perform the Work for the ClienYs benefit during the interruption or delay. 6.3 The individual or individuals who conVact with TRC on behalf of the Client warrant that they are duly authorized agents of the Client and are empowered to so contrad. 6.4 Unless otherwise agreed in writing, the Client shall be entiUed to two copies of each report prepared by TRC. 6.5 In the event that TRC submits a proposal including these Terms and Conditions of Agreement, to provide professional services and the Client authorizes the Work by means of a purchase order or other writing ("Confirmation°), it is expressly agreed that these Tertns and Conditions shall apply, and any terms, condition, or provisions appearing in the Confirtnation are void and inapplicable except to the extent the Confirtnation authorizes the Work and binds Client to this Agreement. 6.6 If TRC is authorized to commence and or continue providing its services on the Work either orally or in writing, prior to full execution of a written conVact, such authorization shall be deemed an acceptance of this proposal, and all such services shall be provided and compensated for in accordance with the Tertns and Conditions of Agreement contained herein as thouBh this proposal were fully executed by Client. 6.7 TRC will mutually coordinate its Work with the work to be undertaken by ClienYs Contractor and Consultants. TRC shall not be responsible for the technical adequacy or accurecy of the professional services rendered by Client's consultants or the services provided by ClienYs contractors. 7.0 SITE SAFETY 7.1 TRC shall not be responsible for construction means, methods, techniques, sequences, or procedures, or for safety precautions and programs in connection with the job or the work of any contractor, subconVactor, or their agents or employees, or any other person performing work or services on the job or at the site. B.0 TERMINATION 8.1 Either party may terminate this Agreement by giving the other party seven (7) days written notice. Notice shall be effective as of the date of deposit in the U.S. Mail of the written notice, properly addressed to the person to be notified. In the event that the Client requests termination of the services prior to completion of Work, TRC reserves the right to complete such analyses and records as may be necessary to place its files in order and, where considered necessary to protect its professional reputation, to complete a report on the services performed to date. A termination charge of 10 percent of the total conVact amount in addition to all costs incurred to the date of Work stoppage may be made at the discretion of TRC. 9.0 OWNERSHIP OF DOCUMENTS 9.1 All reports, boring logs, field data, field notes, laboretory test data, calculations, estimates, and other documents inGuding those in electronic fortn prepared by TRC, as instruments of Work, shall remain the property of TRC whether the work for which they are made is executed or not. Client agrees that all documents and other services fumished to the Client or its agents, which are not paid for, will be immediately retumed upon demand and will not be used by the Client or any other person, legal entity or professional on other projects or extensions to this work except by agreement in writing and with appropriate compensation to TRC. Any unauthorized use of the documents shall be at the ClienYs own risk and without liability to TRC and its employees, consultants and subconVactors. 9.2 Client warrants that TRC, in order to perform its Work under this Agreement, has the unrestricted license and right to use any information provided to TRC by the Client or others. TRC is not responsible for the accuracy of infortnation or data presented by others. 10.0 RIGHT OF ENTRY 10.1 The Client will provide for right of entry of TRC personnel and all necessary equipment, in order to complete the Work. While TRC will take all reasonable precautions to minimize any damage to the property inGuding underground utilities, it is acknowledged and agreed by Client that in the nortnal course of the Work some damage may occur, the correction of which is not part of this Agreement. Accordingly, Client shall waive any Gaim against TRC and its employaes, consultants and subcontractors and agree to defend and indemnify TRC and its employees, consultants and subcontractors from any Gaims arising from entering or working on the site which is the subject of the Work except only losses caused by the sole negligence or willful misconduct of TRC and its employees, consultants and subconVactors. 11.0 MONITORING OF CONSTRUCTION 11.1 The Client hereby acknowledges and understands that unanticipated or changed condkions may be encountered during consVuction. Further, there is a substantial risk to both the Client and to TRC it TRC is not engaged to provide complete services, inGuding but not limited to, construction observation services. Such risks inGude the increased likelihood of misinterpretetion of TRC's findings and conclusions, and error in implementing recommendations by TRC. Therefore, if the Client fails to retain TRC to provide complete services, the Client agrees to defend and indemnity TRC against any and all Gaims, damages, costa, and losses arising out of or in any way related to the Work or arising out of implementing or interpreting TRC's work product except when the Claim arises from the sole negligence of TRC or where the Claim arises from the willful, wanton, or reckless conduct of TRC. 11.2 TRC shall not be required to make exhaustive or continuous on-site observations to check the quality or quantity of the Work and shall not be responsible for any contractor's failure to carry out the work in accordance with the contract documents. 11.3 TRC shall not be responsible for the acts or omissions of any conVactor or subcontrador or any of the contractors' or subcontractors' agents or employees or any other persons peAorming any work on the project. 11.4 The Client shall provide prompt notice to TRC if the Client becomes aware of any fault or defect in the Project or Development, inGuding any errors, omissions, or inconsistencies in TRC's Work or contract documents. TRC Engineers Tertns 8 Conditions - July 2007.doc - 2- 12.0 DISCOVERY OF UNANTICIPATED HAZARDOUS MATERIALS 12.1 Hazardous materials or other toxic substances may exist at a site where thera is no reason known to Client to believe they could or should be present. TRC and Client agree that the discovery of unanticipated potentially hazardous materials constitutes a changed condition mandating a renegotiation of the scope of Work or termination of Work. TRC and Client also agree that the discovery of unanticipated potentially hazardous materials may make k necessary for TRC to take immediate measures to protect public health, safety, and the environment. TRC agrees to notify Client as soon as practically possible should unanticipated hazardous materials be encountered. Client encourages TRC to take any or all measures that in TRC's professional opinion are justfied to preserve and protect the health and safety of TRC's personnel, the public, and the environment, and Client agrees to compensate TRC for the cost of such services. Further, the Client agrees to defend and indemnify TRC from any and all Gaims, damages, costs, and losses arising out of or in any way related to subsurface sampling, inGuding, but not limited to, Gaims, damages, cosffi, and losses arising from cross-contamination except when the Claim arises from the sole negligence of TRC or where the Claim arises from the willful, wanton, or reckless conduct of TRC. 13.0 CONTAMINATION OF A WATER-BEARING 20NE 13.1 Subsurface sampling may result in unavoidable contsmination of certain subsurtace areas, as when a probe or boring is advanced or drilled through a contaminated area, into a Gean soil or a water-bearing zone. Because of the risks posed by such Work, and because subsurtace sampling is often a necessary part of TRC's Work, the Client hereby agrees to waive all claims against TRC that in any way arise out of subsurtace sampling, including claims relating to cross-contamination. 14.0 DISPOSAL OF SAMPLES AND DRILL CUTTINGS 14.1 TRC shall hold samples collected during the pertormance of its Work no longer than 45 calendar days after issuance of any document that inGudes data obtained from them unless Client advises in writing otherwise; drill cuttings will be left on-site. In the event that soil, rock, water, or drill cuttings, and/or other samples or material are contaminated or are suspected to contain hazardous materials or other toxic substances hazardous or detrimental to public health, safety, or the environment as defined by federal, state, or local statutes, regulations, or ordinances, TRC will, after completion of testing, notify the Client of same in order for the Client to arrange for the disposal of samples and materials. The Client recognizes and agrees that TRC at no time assumes title to said samples and/or materials. The Client, not TRC, 2mains ultimately responsible for selecting the disposal or treatment facility to which such samples and/or materials are to be delivered. The Client agrees to pay all costs associated with any storage, transport, and disposal of samples and materials, and to defend and indemnify TRC from any and all Gaims arising out of or in any way related to the storage, transport, and disposal of asbestos, hazardous or toxic substances, or pollutants, inGuding but not limited to, any samples and/or materials. 16.0 PREVAILING WAGE OBLIGATIONS 15.1 Client shall notity TRC in writing ff the Work subject to this Apreement constitutes a"public work° under any and all federal, state, and/or local prevailing wage laws, and/or living wage laws and/or ordinances, inGuding, but not limited to, the Davis-Bacon Act and the provisions of Califomia Labor Code §§ 1720, et seq. In addition, Client shall notify TRC if TRC is obligated by stetute, any public contrecting authority, and/or a developer to pay prevailing wages and benefits and/or any other predetermined wages or benefits (collectively, "prevailing wage obligations'). In the event that TRC must adhere to federal, state, and/or locel prevailing wage obligations for Work pertortned, Client shall provide TRC with any and all prevailing wage determinations applicable to the Work to be performed by TRC. Client understands and agrees that TRC's fee for Work performed under this Agreement will be calculated, in part, on the basis of representations by Client regarding the existence and amount of any and all prevailing wage obligations and that, if such obligations exist, TRC's fee might be different. Client further understands and agrees that TRC will rely on the representations made by Client with regard to prevailing wage obligations and Client agrees to indemnify TRC against any and all Gaims, liabilities, suits, demands, losses, costs, and expenses, including, but not limited to, reasonable attomeys' fees and all legal expenses and fees, arising from TRC's reliance upon ClienYs representations regarding prevailing wage obligations. Client agrees that in the event of any such Gaims, suits, and/or demands, TRC shall have the right to select counsel of its choosing. 16.0 CERTIFICATE OF MERIT 16.1 The Gient shall make no claim for professional negligence unless the Client has first provided TRC with a written cert~cation executed under penalty of perjury by an independent consultant currently praeticing in the same discipline and geographic area as TRC and licensed as a professional engineer or registered geologist in the Stete of Califomia. This certification shall: a) contain the name and license number of the certifier; b) specify with particularity the acts or omissions that the certifier contends are not in confortnance with the standard of care for a consultant performing professional services under similar circumstances; c) state the time spent by certifier in rendering this opinion; and d) state in detail the basis for the certifier's opinion that such acts or omissions do not conform to the standard of care including references to literature, treatises or textbooks to support the cert'rfier's conGusions. This cert~cate shall be provided to TRC no less than thirty (30) calendar days prior to the presentation of any Gaim or the institution of any mediation, arbitretion or judicial proceedin8. At least fifteen (15) days before providing the certificate to TRC, Client shall ensure that the proposed certifier notify TRC in writing of the certifier's intended certification and the content thereof, and Client shall arrange for TRC to discuss the matter with the certifier in an attempt to correct any misinformation in the intended certification and/or to resolve the matter. If Client fails to comply with the Certificate Of Merit process contained in this section 16, then (1) Client waives and foregoes any Gaim or entiUement to recovery of attomeys' fees and litigation costs otherwise recoverable under this contrad, and (2) Client is estopped and preGuded from pursuing any method of inediation, arbitration and litigation against TRC until such time as Client does comply herewith (the "Claim PreGusion"). In agreeing to the Claim PreGusion, Client agrees that compliance with the Cert~cate of Merit process is jurisdictional. 17.0 MISCELLANEOUS PROVISIONS 17.1 The term "indemnify° shall mean indemnify, defend, and hold harmless from and against any and all Gaims, liabilities, suits, demands, losses, costs, and expenses, inGuding, but not limited to, reasoneble attomeys' fees and all legal expenses and fees incurred on appeal, and all interest thereon ("Gaims°), accruing or resulting to any and all persons, firms, or any other legal entities, on account of any damages or losses to property or persons, inGuding death, or economic losses, arising out of the item, matter, action, or inaction specified in the specific provision. 17.2 This Agreement shall be governed by Calffornia law. The venue for any legal action brought pursuant to this Agreement shall be located within the County of Santa Clara, State of Cal'rfornia. 17.3 Nothing contained in this Agreement shall create a contractual relationship wkh or cause of action in favor of a third pariy against either the Client or TRC 17.4 The Client and TRC, respectively, bind themselves, their partners, successors, assigns, and legal representatives to the other party to this Agreement and to the partners, successors, assigns, and legal representatives of such other party with respect to all covenants of this Agreement. Client shall not assign this Agreement or any right or cause of action hereundar without the written consent of TRC. 17.5 TRC and Client agree to disfavor litigation and to use mediation to resolve disputes. N initial discussions between TRC and Client fail to settle a dispute or Gaim relatinA to this Agreement or breach thereof the parties agree to submit such dispute to non-binding mediation to effect a resolution to such dispute or claim. Construction Industry Mediation Rules of American ArbiVation Association shall apply. Demand for mediation shall be made in writing with the other party to this Agreement within a reasonable time after the Gaim, dispute, or other matter in questions has arisen, if prior discussions have not led to a settlement. 17.6 Unless specified otherwise by TRC, this quotation shall not remain in effect after thirty (30) days of the proposal date. 17.7 TRC mainteins a General Engineering A license (No. 682286) and Hazardous Substances Removal and Remedial Actions Certification with the State of Califomia, which are regulated by the Contrectors State License Board. Any questions conceming a contractor may be referred to the Registrar, Contractors State License Board, P.O. Box 26000, Sacramento, Califomia 95826. 17.8 Client aArees that TRC may use and publish ClienYs name and a general description of TRC's services with respeot to the project in describing TRC's experience and qualification to other Gients or prospective Gients. 17.9 This Agreament shall not create any rights or benefits to parties other than Client or TRC. No third-party shall have the right to rely on TRC's opinions rendered in connection with TRC's services without TRC's written consent and the third-party's agreement to be bound to the same terms and conditions as Client. 17.10 Client acknowledges and agrees that it has received and reviewed these Tertns and Conditions and that any rule of consVuction to the efFect that ambiguities are to be resolved against the drafting party shall not apply to the interpretation of this Agreement. TRC Engineers Tertns & Conditions - July 2007.doc - 3-