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12-034 TRC, Health Risk Assessment, Mary Avenue., Cupertino 11P/ OFFICE OF THE CITY ATTORNEY �y 'C.!9,, 20410 TOWN CENTER LANE, STE 210•CUPERTINO, CA 95014 CUPERTINO TELEPHONE: (408) T77-3403• FAX: (408) 777-3401 March 23, 2012 TRC 101 2nd Street Suite 300 San Francisco, CA 94105 Re: Health Risk Assessment, Mary Ave., Cupertino Enclosed is the executed proposal for the human health risk assessment proposed for Mary Avenue, Cupertino. Please contact me if you have any questions. V ry truly yours, C--A Teresa 'Zueger Legal Services Manager 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("Terns and Conditions"). Together,the proposal and Terms and Conditions form our Agreement. This Agreement represents the parties'entire agreement 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 of the right to enforce 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%)percent. Reproduction charges will be billed at twenty-five cents($0.25)per page plus the technical assistant's time billet at their hourly rate. Fixed fee services will be performed for the agreed fixed fee sum. 3.0 TERMS OF PAYMENT 3.1 The Client's obligation to pay for the Work is in no way dependent upon the Clients ability to obtain financing or dependent upon the Clients 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 claimed in writing within fifteen(15)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. 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. 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 Engineers, Inc. reserves the right to suspend services should payment not be received within 60 days of the date of the invoice following performance 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 contractors,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 protected by Worker's Compensation Insurance(and/or Employer's Liability Insurance),by Commercial General Liability Insurance for bodily injury and property damage,and by Professional Liability Insurance (including Contractor's Pollution Liability Insurance),and will fumish certificates thereof upon request. Client specifically agrees that TRC will not be responsible for property damage from any cause, including fire and explosion, beyond the amounts actually paid by TRC's insurance carriers under TRC's available insurance. 5.0 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 performing the Work. Client specifically acknowledges and agrees that the interpretations and recommendations of TRC are based on information 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 claims,damages,costs,and losses (including attorneys'fees and costs)arising out of or in any way related to the Work or the performance or non-performance of obligations under this Agreement except when the Claim arises from the established sole negligence of TRC.and its employees, 5.3 In performing its professional services,TRC will strive to use that degree of care and skill ordinarily exercised,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 warranty,expressed or implied,is made or intended by TRC by the proposal for consulting services,the contract between TRC and Client,or by furnishing oral or 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 understands and acknowledges that the Work poses certain risks to both TRC and the Client. Client further acknowledges and agrees that the amount cf risk that TRC accepts by this Agreement is commensurate with the amount of compensation received under this Agreement for the Work. TRC's fee for the Work is based on and reflects Client's 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 specifically acknowledges and agrees that,to the fullest extent permitted by law, TRC's total liability for any and all injuries,claims, liabilities, losses,costs,expenses,or damages whatsoever including,without limitation,attorneys'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 causes including,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. 5.5 Client agrees on its behalf and on behalf of Client's 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 claim or cause of action arising from or in any way related to the Work or this agreement 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 California Code of Civil Procedure. The Date of Completion shall be the date of the final invoice for the Work performed under this Agreement. 5.6 If Client requests that TRC's work product be relied upon by a third party,including,but not limited to,a lender,Client specifically 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 third party as described in paragraph 5.4 above,and Client agrees to defend and indemnify TRC and its employees,consultants and subcontractors from any and all third party claims,damages,costs,and losses arising out of or in any way related to the Work or the performance or non-performance of obligations under this Agreement except when the Claim arises from the sole negligence of TRC. and its employees. 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 including,but not limited to,the provisions of paragraphs 5.4 and 5.5,above,and this paragraph 5.6. Every report,recommendation,finding,or conclusion 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. TRC Terms Conditions-2009 version(rev 011209).doc -1- 6.0 SCOPE AND EXECUTION OF SERVICES 6.1 TRC will serve the Client by providing professional technical advice based on information furnished by the Client. The Client will make available to TRC all known information 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 any 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 warrants that if it knows or has any reason to assume or suspect that hazardous materials may exist at the project 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 claims,damages,costs,or losses arising there from.TRC shall not be liable for failing to discover any condition the discovery of which would reasonab y require the performance of services not authorized by Client. 6.2 TRC will 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 control,not by factors 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 otherwise,caused by delays in the completion of the Work. TRC makes 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 (including, but not limited to, acts of God, war, riot, insurrection, inclement weather, fire acts of third parties or governmental 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 Client's benefit during and after the interruption or delay. 6.3 The individual or individuals who contract with TRC on behalf of the Client warrant that they are duly authorized agents of the Client and are empowered to so contract. 6.4 Unless otherwise agreed in writing,the Client shall be entitled 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 Terms and Conditions shall apply,and any terms,condition,or provisions appearing in the Confirmation are void and inapplicable except to the extent the Confirmation 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 orally prior to full execution of a written contract,such authorization shall be deemed an acceptance of this proposal, and all such service:,shall be provided and compensated for in accordance with the Terms and Conditions of Agreement contained herein as though this proposal were fully executed by Client. 6.7 TRC will mutually coordinate its Work with the work to be undertaken by Client's Contractor and Consultants. TRC shall not be responsible for the technical adequacy or accuracy of the professional services rendered by Client's consultants or the services provided by Client's 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,subcontractor,or their agents or employees,or any other person performing work or services on the job or at the site. 8.0 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. A termination charge of 10 percent of the total contract amount in addition to all costs incurred to the date of Work stoppage may be made at the discretion of TRC,for which Client agrees it shall be liable. 9.0 OWNERSHIP OF DOCUMENTS 9.1 All reports, boring logs, field data, field notes, laboratory test data, calculations, estimates, and other documents including those in electronic form 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 furnished to the Client or its agents,which are not paid for,will be immediately returned upon demand and will not be used by the Client or any other person,legal entity or professional on cther 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 Client's own risk and without liability to TRC and its employees,consultants and Client shall be required to indemnify,defend and hold harmless TRC for any unauthorized use. 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 information 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 perform the Work. While TRC will take all reasonable precautions to minimize any damage to the property including underground utilities,it is acknowledged and agreed by Client that in the normal course of the Work some damage may occur,the correction of which is not part of this Agreement Accordingly,Client shall waive any claim against TRC and its employees,consultants and subcontractors and Client agrees to defend and indemnify TRC and its employees,consultants and subcontractors from any claims arising from entering or working on the site which is the subject of tie Work except only losses caused by the sole negligence of TRC. 11.0 MONITORING OF CONSTRUCTION 11.1 The Client hereby acknowledges and understands that unanticipated or changed conditions may be encountered during construction. Further,there is a substantial risk to both the Client and to TRC if TRC is not engaged to provide complete services,including but not limited to,construction observation services. Such risks include the increased likelihood of misinterpretation 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 indemnify TRC against any and all claims,damages,costs,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. 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 contractors failure to carry out the work of others in accordance with the contract documents. 11.3 TRC shall not be responsible for the acts or omissions of any contractor or subcontractor or any of the contractors' or subcontractors' agents or employees or any other persons performing 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, including any errors, omissions,or inconsistencies in TRC's Work. 12.0 DISCOVERY OF UNANTICIPATED HAZARDOUS MATERIALS 12.1 Hazardous materials or other toxic substances may exist at a site where there 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 may require 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 it necessary for Client 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. TRC will take any or all measures that,in TRC's professional opinion,are justified 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 claims,damages,costs,and losses arising out of or in any way related to subsurface sampling,including,but not limited to,claims,damages,costs,and losses arising from cross-contamination except when the Claim arises from the sole negligence of TRC. TRC Terms Conditions-2009 version(rev 011209).doc -2- 13.0 CONTAMINATION OF A WATER-BEARING ZONE 13.1 Subsurface sampling may result in unavoidable contamination of certain subsurface areas,as when a probe or boring is advanced or drilled through a contaminated area,into a clean soil or a water-bearing zone. Because of the risks posed by such Work,and because subsurface 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 subsurface sampling, including claims relating to cross-contamination. 14.0 DISPOSAL OF SAMPLES AND DRILL CUTTINGS 14.1 TRC shall hold samples collected during the performance of its Work no longer than 45 calendar days after issuance of any document that includes 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, remains 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 claims arising out of or in any way related to the storage,transport, and disposal of asbestos,hazardous or toxic substances,or pollutants,including,but not limited to,any samples and/or materials. 15.0 PREVAILING WAGE OBLIGATIONS 15.1 Client shall notify TRC in writing if the Work subject to this Agreement constitutes a"public work"under any and all federal,state,and/or local prevailing wage laws,and/or living wage laws and/or ordinances,including, but not limited to,the Davis-Bacon Act and the provisions of California Labor Code §§1720,at seq. In addition,Client shall notify TRC if TRC is obligated by statute,any public contracting 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 local prevailing wage obligations for Work performed, 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 and defend TRC against any and all claims,liabilities,suits,demands,losses,costs, and expenses, including, but not limited to, reasonable attorneys' fees and all legal expenses and fees, arising from TRC's reliance upon Client's representations regarding prevailing wage obligations. 16.0 CERTIFICATE OF MERIT 16.1 The Client shall make no claim for professional negligence unless the Client has first provided TRC with a written certification executed under penalty of perjury by an independent consultant currently practicing in the same discipline and geographic area as TRC and licensed as a professional engineer or registered geologist in the State of California. 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 conformance 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 certifier's conclusions. This certificate shall be provided to TRC no less than thirty(30) calendar days prior to the presentation of any claim or the institution of any mediation, arbitration or judicial proceeding. 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 claim or entitlement to recovery of attorneys'fees and litigation costs otherwise recoverable under this contract; and(2)Client is estopped and precluded from pursuing any method of mediation,arbitration and litigation against TRC until such time as Client does comply herewith(the"Claim Freclusion"). In agreeing to the Claim Preclusion,Client agrees that compliance with the Certificate 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 claims,liabilities,suits,demands,losses,costs,and expenses,including,but not limited to,reasonable attorneys'fees and all legal expenses,and all interest thereon("claims"),accruing or resulting to any and all persons,firms,or any other legal entities,on account of any dama3es or losses to property or persons,including death,or economic losses. 17.2 This Agreement shall be governed by California law. The venue for any legal action brought pursuant to this Agreement shall be located within the County of Santa Clara,State of California. 17.3 Nothing contained in this Agreement shall create a contractual relationship with or cause of action in favor of a third party 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 hereunder without the written consent of TRC. 17.5 TRC and Client agree to disfavor litigation and to use mediation to resolve disputes. If initial discussions between TRC and Client fail to settle a dispute or claim relating 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 Arbitration Association shall apply. Demand for mediation shall be made in writing with the other party to this Agreement within a reasonable time after the claim,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 Client agrees that TRC may use and publish Client's name and a general description of TRC's services with respect to the project in describing TRC's experience and qualification to other clients or prospective clients. 17.8 Client acknowledges and agrees that it has received and reviewed these Terms and Conditions and that any rule of construction to the effect that ambiguities are to be resolved against the drafting party shall not apply to the interpretation of this Agreement. TRC Terms Conditions-2009 version(rev 011209).doc -3- Mr.Gary Michael Baum City of Cupertino ATTORNEY AT LAW Dog Park HHRA Remedial goals for carcinogenic COPCs will be established within a lifetime incremental cancer risk range ofixio-4 to ixio-6. 4.o COST ESTIMATE AND SCHEDULE TRC can complete the baseline HHRA and final report at a fixed-price basis of$8,000. TRC anticipates that the baseline HHRA can be completed within three weeks of receipt of authorization to proceed. 5.o TERMS AND CONDITIONS We will perform the environmental services 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 3o 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 3o days after the issue date of TRC' 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 requested by you that are not outlined in this agreement,such as attendance at project meetings and preparation of draft reports,will be charged on a time-and-expense basis. We ask that you indicate your approval of the proposed scope of work by signing below and returning a copy of this correspondence to our office. If you have any questions regarding this proposal and cost estimate, please call me at(415)644-3044. Sincerely, T Very truly yours, Agreement accepted by: TRC ENGINEERS,INC. CLIENT'S NAME: 4-z-� 3. 2.ra - Charles Mettler,P.G. Signature Date Principal Geologist CCM:KG:jcm Dave :nap*), City Manager Please Print Name and Title Attachments: Terms and Conditions Copies:Addressee(via email) p V 000 . D O Copyright©2oi2 TRC ( r 5,, iu t(u�nrtiiiu l?n�!'nrl.IiIiR.A�>n,ir;_:;�zJn� Acrf Nv . —Bo -x ( 3-1 - 673oo Page 5 Approved as to form: 17$5oo.i ®®_ ^ TRC •ttomey CTRC 101 2nd Street Suite 300 San Francisco, CA 94105 March 23,2012 178500.1 Mr.Gary Michael Baum ATTORNEY AT LAW 19925 Stevens Creek Blvd,Ste 100 Cupertino,California 95014 RE: PROPOSAL FOR HUMAN HEALTH RISK ASSESSMENT PROPOSED CUPERTINO DOG PARK HIGHWAY 85 AND MARY AVENUE CUPERTINO,CALIFORNIA Dear Mr.Baum: In accordance with your request,TRC presents its proposal to conduct a Human Health Risk Assessment (HHRA)for the proposed Cupertino Dog Park located at Highway 85 and Mary Avenue in Cupertino, California. Based on the planned future use of the site as a dog park,TRC proposes that a site-specific risk assessment be conducted to evaluate appropriate site-specific cleanup goals that would be protective of human health. 1.0 SITE BACKGROUND The subject property consists of a triangular shaped sit a occupied by an open space that is proposed for use as a public dog park,consisting of a soil covered lot with a meandering asphalt-paved walkway and several trees.The subject property is relatively flat along the tree and walkway areas at an approximate elevation of 30o feet mean sea level(MSL),then sloping downward approximately 6 to 8 feet to the parking lot along Mary Avenue. The property is bounded by a sound wall associated with Highway 85 along the west side of the site,and Mary Avenue with residential developments present on adjacent properties to the north and east of the site(Figure 2). Historically,from the 1940s through the mid- 1960s,the site appears to have been occupied by orchards. Also,the site appears to have been adjacent to Highway 85 since 1980,when the freeway was built. The property is currently vacant land,with no remnants of former buildings or other structures. No businesses are known to have operated at the site. 2.0 RESULTS OF PREVIOUS ENVIRONMENTAL INVESTIGATIONS 2.1 COPCs Based on Previous Investigations TRC conducted a limited environmental assessment of the proposed dog park property in August of 2010, which included the collection of eight near-surface soil samples at random locations on the subject property. Eight shallow soil samples were collected at the site and analyzed for organochlorine pesticides and pesticide-related metals lead and arsenic. Laboratory analyses detected low concentrations of Mr.Gary Michael Baum City of Cupertino ATTORNEY AT LAW Dog Park HHRA organochlorine pesticides dieldrin,dichloro-2,2-bis(p-chlorophenyl)ethane(DDD), Dichlorodiphenyldichloroethylene(DDE),organoc:hlorine pesticides(DDT),and heptachlor expoxide. The detected concentrations did not exceed the California Human Health Screening Levels (CHHSLs)or Environmental Screening Levels(ESLs).Arsenic,often associated with pesticides,was detected in samples collected at the site;however,the detected arsenic concentrations appear consistent with typical background levels that occur naturally in soils in the Bay Area. Analyses of the eight-discrete soil samples detected lead exceeding the residential screening levels [CHHSL(8o milligrams per kilogram(mg/Kg)and/or ESL(200 mg/Kg)]in five of the eight samples, with concentrations ranging from 107 to 612 mg/Kg total lead.The commercial CHHSL(320 mg/Kg)was exceeded in one of the eight samples,at SS-2B(612 mg/Kg). No specific distribution pattern of lead impacted soil across the site was readily apparent(i.e.,the concentrations appeared to be randomly distributed). 2.2 Recommendations Based on Previous Investigations Based on the concentration of lead detected in near surface soil samples,TRC recommend that a remedial action plan be developed to identify appropriate options for management of the identified impacted soil. TRC indicated that a site-specific risk assessment could be conducted to evaluate appropriate site-specific cleanup goals which would be protective of human health based on the planned use of the site as a dog park. Alternatively,as a conservative approach,the residential screening levels could be used as cleanup goals.TRC recommended additional sampling to evaluate the depth of lead impacted soil and characterization of the soil for waste disposal purposes at the subject property. TRC submitted to the City of Cupertino a Removal Action Workplan(RAW)for the proposed site on March 11,2011,that provided the Department of Toxic Substances Control(DTSC)with a comprehensive analysis of soil data collected to date,to define the compounds of concern(COCs)in soil,and propose a scope of work for the removal of the impacted soil at the site based on residential cleanup standards.The RAW proposed soil excavation to remove the COCs(pesticides and lead)from the site. 3.o PROPOSED SCOPE OF WORK The proposed scope of work outlined in the following sections is based on the information reviewed from the Removal Action Workplan. The proposed scope of work is limited to the preparation of a baseline health risk assessment. It should be noted that additional investigation and/or resolution of data gaps identified following completion of the baseline risk assessment may be warranted. The scope of work and costs associated with the preparation of workplans,regulatory negotiations,and completion of additional investigation activities will be prepared and submitted under separate cover,if necessary. 3.1 Baseline Health Risk Assessment The results of previous assessment activities adequately define the subsurface conditions and distribution of chemicals of potential concern(COPCs)in soil. While the vertical extent of soil impacts are not completely defined,TRC believes that sufficient information is available to perform a Baseline Health Risk Assessment. Based on the previous assessment results,concentrations of metals(including lead) Page 2 3.785oo.i TRC Mr.Gary Michael Baum City of Cupertino ATTORNEY AT LAW Dog Park HHRA and pesticides in soil are believed to represent the primary COPCs with regard to potential future human health risks associated with current or anticipated future use of the site. The purpose of the Baseline Health Risk Assessment is to evaluate whether the current site use poses a potential threat to human health based on the results of previous environmental investigations performed at the site. The primary components of the Baseline Health Risk Assessment are summarized below: • Identify Chemicals of Potential Concern(COPCs)and define the general risk assessment methodology for a baseline risk assessment. • Summarize toxicity criteria for the COPCs to be quantitatively evaluated in the health risk assessment. • Establish exposure point concentrations of COPCs in soil for the relevant exposure pathways identified for the site. • Define potential exposure pathways and present exposure parameters associated with potential exposure to COPCs in soil. • Quantify upper-bound estimates of potential exposure and risk based on Reasonable Maximum Exposure parameters and assumptions in accordance with United States Environmental Protection Agency(USEPA)and California Environmental Protection Agency(CalEPA)risk assessment methodologies. Additional details regarding the primary elements of the baseline-risk evaluation work scope are provided in the following sections. 3.1.1 Summarize Previous Investigations The completed Baseline Health Risk Assessment document will include a narrative summary of previous environmental investigations performed at the site. In addition,a database of soil analytical results derived from these previous investigations will be prepared. The analytical database summary will serve as the basis for performing statistical evaluations of the site data for use in the health risk evaluation. 3.1.2 Identification of COPCS COPCs were identified from previous site assessment activities. Constituents detected in soil and/or soil vapor will be retained for evaluation as COPCs meet based on the following criteria: 1. Were detected in at least one soil sample at a concentration in excess of laboratory detection limits and 2. Relevant toxicity information(e.g.,cancer slope factors or reference doses)for the constituents have been developed by the USEPA or Ca1EPA. Constituents identified as COPCs will be quantitatively evaluated in the human health risk assessment. In addition,numerical,health-based remediation goals will be established for each of the COPCs as a component of the health risk assessment. 3.1.3 Toxicity Criteria and Chemical Properties Traditional risk assessment methodologies rely on the use of dose-response criteria(e.g.,Cancer Slope Factors and Reference Doses). These criteria are typically derived by the USEPA or the CalEPA. Toxicity Page 3 178500.1 % ' /! TRC Mr.Gary Michael Baum City of Cupertino ATTORNEY AT LAW Dog Park HHRA criteria developed by the Ca1EPA Office of Environmental Health Hazard Assessment(OEHHA)will be used as the preferred source of carcinogenic and non-carcinogenic toxicity data. Additional toxicity data derived by the USEPA will be used to supplement the OEHHA information,particularly with regard to noncarcinogenic Reference Doses. 3.1.4 Calculation of Soil Concentrations for Baseline Risk Assessment Soil source concentrations will be determined by conducting a statistical evaluation of the soil sampling data obtained during previous investigations performed at the site. The statistical evaluation of COPC concentrations in soil will provide estimates of the 95 percent upper confidence interval(UCI)of the mean. For each COPC,the UCI will be calculated based on the data distribution that is best suited to the sample population. Distributions to be evaluated will include normal,lognormal,gamma,and non- parametric. 3.1.5 Exposure Assessment and Exposure Pathways Exposure pathways to be quantitatively evaluated include the future residential use of the subject property. The baseline risk assessment will consider the following exposure pathways under a commercial/industrial land use scenario: • Inhalation of fugitive dust • Dermal contact with near-surface soil • Incidental ingestion of near-surface soil • Inhalation of vapors in indoor air Risk characterization will be completed for the COPCs and exposure pathways identified for the site. The risk characterization will provide insight regarding the magnitude of potential risks and the possible need for additional risk management solutions. In the event that the baseline risks are within the range of acceptable risks as traditionally applied by Ca1EPA,the risk assessment document may be used to support a no further action determination for the site. Alternatively,the results of the risk assessment may help to identify data gaps that may warrant evaluation through completion of additional site assessment activities. 3.1.6 Derivation of Health-Based Screening Levels In the event that the results of the baseline risk assessment indicate that potential risks exceed the range of acceptable levels as typically utilized by Ca1EPA for risk management decision-making,quantitative health-based screening levels will be established for the COPCs identified at the site. The methodology used to derive the remedial goals will incorporate the exposure pathways and parameters used in the Baseline Risk Assessment. Rather than calculating incremental cancer risks and hazard indices,the methodology will be revised to"back calculate"numerical concentrations of COPCs in soil. The numerical endpoint will reflect a range of concentrations that are consistent with historical regulatory definitions of acceptable risks for carcinogenic and non-carcinogenic health effects. Remedial goals for the COPCs will be protective for noncarcinogenic health risks under a cumulative hazard index threshold of 1.0. Page 4 TRC 178500.1