HomeMy WebLinkAbout#21 Lake Shoreline Boating Study UpdateSTAFF REPORT
DATE: January 3, 2017
REGULAR
ITEM #: 21
AGENDA ITEM: Lake Shoreline/Boating Study Update
SUBMITTED BY: Kristina Handt, City Administrator
BACKGROUND: At the December 6, 2016 meeting, Council selected the Bolton & Menk proposal for a slow no wake assessment of shoreline erosion on the city’s four recreational lakes. Their proposal included two options which council was interested in and approved up to $30,000 for the study.
Staff contacted Bolton & Menk after the Council meeting to get cost estimates for the two options. Included in your packet is the revised estimate with the options for $41,500. Since the total cost exceeded
the amount authorized by Council, staff is looking for direction on how to proceed. ISSUE BEFORE COUNCIL: How should the Council proceed with the slow no wake erosion impact study? PROPOSAL DETAILS/ANALYSIS: The full proposals from Bolton & Menk and Wenk Associates are included in your packet. FISCAL IMPACT: Bolton & Menk: Original Scope: $25,000 With Addl Options: $41,500 Wenk Associates: $19,500 OPTIONS: 1) Direct Staff to Prepare a Contract with Bolton & Menk for $41,500 2) Direct Staff to Prepare a Contract with Bolton & Menk for $25,000
3) Direct Staff to Prepare a Contract with Bolton & Menk for $35,000 (include Option 2.1 only) 4) Direct Staff to Prepare a Contract with Wenk Associates for $19,500 5) Do not direct staff to pursue any contracts for the study of slow no wake erosion assessments on
the four recreational lakes ATTACHMENTS:
• Bolton & Menk, Dec 1 Proposal
• Bolton & Menk, Additional Options
• Wenk Associates, Nov 30 Proposal
Submitted by:
Proposal forCity of Lake Elmo
Slow No Wake Assessments on Lakes Olson, De Montreville, Jane, and Elmo
December 1, 2016
Contact:
Tim Olson, P.E., CFM
C: 651-724-0404
timol@bolton-menk.com
Bolton & Menk, Inc.
2035 County Road D East
Maplewood, MN 55109-5314
P: 651-704-9970
F: 651-704-9971
December 1, 2016
Kristina Handt City Administrator
3800 Laverne Ave, N Lake Elmo, MN 55042
RE: Proposal for Slow No Wake Zone Assessments on Lakes Olson, De Montreville, Jane, and Elmo Dear Ms. Handt:
According to your request, Bolton & Menk, Inc. has prepared the following scope of work and associated
fees to address Slow No Wake Zone Assessments of Lakes that include Olson, De Montreville, Jane, and
Elmo in Lake Elmo. With the exception of Lake Elmo, lake-wide no wake restrictions are triggered when the lakes reach a specific water surface elevation as determined by the Minnesota Department of Natural
Resources (MnDNR). Typically, no wake restrictions are determined based on the likelihood of shoreline
damage when the lakes are elevated due to flooding. Bolton & Menk’s experience understanding shoreline impacts and erosion protection will support the City of Lake Elmo with objective information to
make technical and informed decisions in establishing no wake elevations. Our successful approach includes:
Unbiased Data – Establishing ordinances that affect lake activities are particularly difficult in
communities that have emotional connections to their lake systems. In order to reduce perceived
emotional impacts, impartial and objective data is required to establish no wake elevations that are not driven by passionate lake home owners or recreationists.
Comprehensive Decisions – Lake regulations impact many users beyond those that live there.
Therefore, the decisions that impact no wake limitations must include environmental implications,
shoreline property values, and recreational uses.
Public Education – The lake users must be informed as to why these elevations are established
and what the potential impacts are if these limitations are exceeded in order to fully understand their water resources. Setting the elevation is only a portion of the overall goal; education tells the rest of
the story. In continued service to the City of Lake Elmo, we are excited at the opportunity to analyze no wake
elevations for several critical lakes. We are flexible in our scope and fees to best suit the City’s needs. I will serve as your Project Manager and lead client contact on this project. Please feel free to contact me at
651-724-0404 or timol@bolton-menk.com if you have any questions regarding our proposal.
Respectfully submitted,
Bolton & Menk, Inc.
Timothy J. Olson, P.E., CFM Water Resources Project Manager
Project Approach
Project Approach
The City of Lake Elmo is seeking an assessment of the
current no wake restrictions on Lakes Olson, De
Montreville, Jane, and Elmo and an analysis of the
conditions that could potentially change those elevations.
We understand that an objective approach to
establishing no wake regulations is necessary to bring
solidarity to already sensitive interactions between
stakeholders.
Restrictions to lake uses under flooding conditions begins
at the local level. The City of Lake Elmo is responsible for
establishing ordinances that protect the shoreline area as
well as educate the general public as to why these
restrictions are important. Bolton & Menk intends to
provide technical support in establishing those restrictions
and is available to provide additional public engagement
services as directed by future goals. Below is our approach
to developing a sustainable assessment of the current no
wake restrictions and technical support for modifications
to the minimum no wake elevations that can be supported
by the community and its stakeholders.
Task 1: Communication 1.1 Kick-off Meeting
A kick-off meeting will be scheduled immediately after
Notice-to-Proceed. The meeting will include the
following:
• Introduce key City staff to key consulting staff
developing the plan
• Establish communication protocols associated
with the various aspects of the plan.
• Formulate a mutually acceptable milestone
schedule
• Develop cooperation to share available lake
information and practical field experience
1.2 Project Milestone Meetings
We anticipate up to two additional meetings with City staff
at key milestones to ensure project tasks are completed to
best meet your needs. Consistent communication between
team members will ensure project budgets match the
required deliverables.
1.3 Stakeholder Meetings
Bolton & Menk will attend one stakeholder meeting once
the Project Team has reached consent on an established no
wake elevation. It is assumed the City of Lake Elmo will
provide a list of stakeholders and perform all
communication and establish a meeting place and time.
OPTIONAL: Public Education and Outreach
We understand significant value can be added to any
technical analysis by establishing opportunities for the
general public to become educated about the issues and
provide valuable feedback. Bolton & Menk has decades of
experience working in a public forum to inform citizens on
technical issues. If the City deems appropriate, Bolton &
Menk will attend one community event to facilitate public
education and outreach. This includes the following:
• Meeting attendance
• Preparation of meeting/presentation materials
• Meeting minutes
This is an optional task. If the City sees added value in this
task, we will negotiate a fee at your request.
Submitted by Bolton & Menk, Inc. Slow No Wake Zone Assessments | Lake Elmo 1
Project Approach
Task 2: Data Collection 2.1 Geospatial Information
Bolton & Menk has access to a robust collection of
publically available geospatial data that will assist in the
development of a shoreline assessment. This includes, but
is not limited to:
• Light Detection and Ranging (LiDAR) surface
topography
• Hydrography data
• MnDNR lake level data
• Aerial photography
Bolton & Menk will rely on the City to provide any
additional information regarding known lake and shoreline
issues. This information may include the following:
• Septic system locations
• Private well locations
• Lake outlet information (where available)
• Known shoreline erosion issues
• Known lake flooding issues
2.2 Historic Lake Levels
Bolton & Menk will collect historic lake levels for each of
the four lakes over the period of record.
OPTIONAL: Field Data Collection
In these early analysis stages, it may not be prudent to
collect any field survey data or other specific site
information. However, Bolton & Menk is fully capable of
facilitating the following field data collection procedures:
• Resident/recreationist surveys
• Topographic survey of erosion areas, low floor
elevations, low home openings, septic systems,
wells, beaches, etc.
• Photo collection from lakeside into the shore via
boat
• 2-Dimensional photo collection via unmanned
drone
o This specific service may provide critical
information at a very high resolution for a
relatively low cost. Bolton & Menk
currently has federally certified drone
pilots that are willing to provide
additional scope and fees related to 2D
photo collection programs.
This is an optional task. If the City sees added value in this
task, we will negotiate a fee at your request.
Task 3: No Wake Analysis 3.1 Analyze Lake Level Data
Utilizing the MnDNR lake level information, Bolton &
Menk will:
• Establish lake level frequencies using graphical
plotting position
• Determine lake level frequencies for a variety of
return intervals (i.e. 1-year, 5-year, 10-year, etc.)
• Compare DNR OHW elevations to lake level
frequencies
• Assess the number of exceedances for each return
interval to understand how often the wave action
will affect shoreline stabilization in a typical year
3.2 Analyze Potential Wave Impacts
Wave affects can come from boat and wave sources and
each has their potential impact to routine shoreline erosion
and no wake implications. The following items will
require analysis:
• Use literature to determine wave heights from
typical boats at varying distances from the shore
• Analyze wave heights from potential wind loads
Submitted by Bolton & Menk, Inc. Slow No Wake Zone Assessments | Lake Elmo 2
Project Approach
• Compare and contrast the severity of erosion from
boat and wind loading
3.3 Geospatial Evaluation
Bolton & Menk will utilize GIS to develop several
deliverable products that help convey this technical
information in a graphical format. We will perform the
following tasks:
• Plot specific lake levels to determine property and
shoreline impacts without wake
• Identify shoreline areas that would be affected by
wake under a variety of return intervals
• Identify and quantify risks to shoreline, septic
systems, wells, homes, and other structures
• Outline no wake ordinance measures and plan
trigger elevations that may be implemented to
reduce wave-related risks
Task 4: Summary Report 4.1 Develop Technical Summary Report
In a brief report, Bolton & Menk will summarize the
technical information collected and substantiate a
recommendation for no wake elevations on Lakes Olson,
De Montreville, Jane, and Elmo.
Submitted by Bolton & Menk, Inc. Slow No Wake Zone Assessments | Lake Elmo 3
Estimated Project Fees
Estimated Project Fees
Bolton & Menk understands the importance of delivering a project on time and within budget. We closely monitor our
time and budget to ensure efficiency of our staff and value to our clients. Any issues relating to requested scope
modifications and potential budget impacts will be communicated in a timely manner.
The Estimated Project Fee schedule below does not include the OPTIONAL tasks listed in the Project Approach.
However, we are prepared to provide those fees to the City as directed by your specific needs. Bolton & Menk is also
willing to negotiate our anticipated scope and fees to ensure your direct budgetary and deliverable needs are met with the
utmost attention.
Detailed Cost Estimate
Client: City of Lake Elmo
Project: Slow No Wake Zone Assessments
Task No. Work Task Description Project Manager Water Resources Engineer Design Engineer Total
Hours
Total
Cost
1.0 Communication 20 6 4 30 $3,840
2.0 Data Collection 4 8 8 20 $2,580
3.0 No Wake Analysis 20 28 38 86 $10,880
4.0 Summary Report 8 30 20 58 $7,700
Total Hours 52 72 70 194
Average Hourly Rate $125 $150 $110
Subtotal $6,500 $10,800 $7,700
Total Fee $25,000
Submitted by Bolton & Menk, Inc. Slow No Wake Zone Assessments | Lake Elmo 4
Project Team
Project Team
Bolton & Menk has assembled a highly motivated and
experienced group of professionals for the Slow No Wake
Zone Assessments on Lakes Olson, De Montreville, Jane,
and Elmo. Our team has experience evaluating and
developing successful solutions to meet the needs of our
clients. We value and understand the importance of
ultimately achieving an assessment that can be supported
by stakeholders and implemented efficiently.
The Bolton & Menk team is intended to be an extension of
the Lake Elmo City staff, with close coordination between
the City’s project coordinator and the project team
maintained at all times. The proposed team provides the
optimum combination of accessibility, local knowledge of
the community, and specialized expertise. Our team will
be led by our Project Manager, Tim Olson, who will be
supported by key individuals and support staff. Our team
members will work interdependently to build synergy for a
sustainable solution. Tim Olson, P.E., CFM Project Manager
Tim will serve as Project Manager for
the Slow No Wake Zone Assessment.
He will provide close coordination
with the City and their partners. He
will serve as the primary contact for
the City and provide overall management of the project
team and schedule, cost, quality, and scope management
processes.
Tim is a Water Resources Project Manager who began his
career in 2006. He has worked on the design and
development of Comprehensive Stormwater Management
Plans, hydrologic and hydraulic studies, and hydrologic
plan reviews. His responsibilities include identification
and discussion of NPDES Phase I & II requirements,
hydrologic and hydraulic modeling, and identification of
alternatives for proposed improvements. He has also
prepared a multitude of Stormwater Pollution Prevention
Plans (SWPPP) and submitted associated NPDES Phase II
Construction Stormwater Permits. Tim has additional
experience with a variety of engineering tasks including
design computations, preliminary layout and design,
research and preparation of preliminary engineering
reports, and feasibility studies. He also assists with project
design, preparation of plans and specifications, and cost
and quantity take-off estimates. Brent Johnson, P.E., CFM Water Resources Engineer
Brent will serve as the lead Water
Resources Engineer and will oversee
data collection and technical analysis
of critical shoreline protection. He will
utilize his experience in establishing
no wake regulations and analyzing wave action on
shoreline erosion to ensure the recommended actions are
accurate and provide a solid foundation for lake regulation.
Brent is a Senior Water Resources Engineer who began his
career in 1995. He has extensive experience in water
resources engineering as a consultant and watershed
district engineer. Brent has provided engineering services
for projects involving stormwater management, floodplain
mapping, flood damage reduction, bridge and culvert
sizing, dams, drainage, erosion protection, sediment
control, and lake and stream restorations. Projects have
included detailed hydrology and hydraulics modeling and
analysis using XPSWMM, as well as preparing
engineering studies, reports, plans, and specifications.
Brent has presented reports at meetings, public hearings,
and conferences. He has supervised and trained engineers
and other staff assigned to project teams. Dustin deFelice, EIT Design Engineer
Dustin will provide effective data
collection and geospatial analysis
required to establish no wake
elevations.
Dustin began his water resources career in 2012. His
primary responsibilities include the development of
hydrologic and hydraulic modeling for preliminary project
layouts. Dustin has extensive experience in HEC-RAS and
HEC-HMS programs. He also has experience in Autodesk
Civil 3D software and hydraulic design experience using
HydroCAD and Autodesk Storm and Sanitary Analysis.
Dustin has extensive experience using a variety of
hydraulic and water quality software to analyze and design
stormwater management systems.
Submitted by Bolton & Menk, Inc. Slow No Wake Zone Assessments | Lake Elmo 5
December 14, 2016
Kristina Handt
City Administrator
3800 Laverne Ave N
Lake Elmo, MN 55042
RE: Proposal for Slow No Wake Zone Assessments on Lakes Olson, De Montreville, Jane, and Elmo
Amendment to Include Optional Tasks
Dear Ms. Handt:
Thank you for the opportunity to assess the current no wake restrictions on Lakes Olson, De Montreville,
Jane, and Elmo. We are also pleased to provide additional scope and fees for the optional items discussed
in our original proposal for Public Education and Outreach and Field Data Collection. Refer to the
following scope and associate fees to complete these optional tasks.
1.1 OPTIONAL: Public Education and Outreach
Bolton & Menk will attend one public meeting to inform citizens of the important technical issues
required to establish effective no wake elevations. This includes the following.
• Attend one meeting with City Staff prior to the Public Meeting to discuss materials to be
presented and responsibilities of the project team.
• Develop meeting/presentations materials. The exact nature of these materials will be discussed at
the time of the City Staff Meeting.
• Attend the Public Meeting. The meeting is assumed to be two hours.
• Develop meeting minutes and summarize the information collected from public input.
2.1 OPTIONAL: Field Data Collection
This task includes resident and field data collection to support the objective data generated from the
study. We propose the following scope to maximize the use of available technology to provide the City
with very high resolution data. These tasks include the following.
• Develop citizen questionnaire to assess current lake issues, known erosion along the lake shore
and types of vegetation and landscaping around the lake. This could be digital and available
online.
• Distribute and collect the survey and assess the results.
• Utilize drone technology to develop a 3-dimensional, high resolution photo of the lake shore.
Refer to the attached figures summarizing the requirements for a drone flight.
o Establish elevation control points on shore to which the drone will orient.
o Use a drone to capture photos and elevation.
o Process the information collected by the drone.
o Analyze the final 3D model for erosion issues and other information required to
effectively establish a no wake elevation.
N:\Proposals\Lake Elmo\No Wake Elevation Assessment\5_Optional_Tasks.docx
Project Schedule
Data collection via drone would provide the best result during a fully vegetated condition. It is
recommended that the field data collection commence after ice is off the lakes and the growing season has
started. This time frame is typically mid to late April, but will be coordinated with weather as the time
frame approaches.
Fees for Additional Tasks
The following table includes the previous proposed scope and fees and includes the fees required to
complete the additional tasks described herein.
If you have any additional comments or questions, please contact me at your convenience.
Respectfully submitted,
Bolton & Menk, Inc.
Timothy J. Olson, P.E., CFM
Water Resources Project Manager
Client: City of Lake Elmo
Project: Slow No Wake Zone Assessments
Task No. Work Task Description
Project ManagerWater Resources EngineerDesign EngineerDrone OperatorSurveyorTotal
Hours
Total
Cost
1.1 OPTIONAL: Public Education and Outreach 24 12 8 0 0 44 $5,700
2.1 OPTIONAL: Field Data Collection 32 8 4 28 12 44 $10,800
Total Hours 56 20 12 28 12 88
Subtotal $7,000 $3,000 $1,320 $3,640 $1,536
$16,500
$25,000
Ammended Total Fee $41,500
Subtotal for Optional Tasks
Total for Original Scope
Jane Rd N
50th St N
Lake Jane Tr NHelmo Ave N55th St NHill Tr N
Olson Lake Tr NHidden Bay Tr NDemontreville Tr NJamaca Ave NHillvale Ave NHillt
o
p
Av
e
N44th St N Jamaca Blvd N53rd St N
Deer Pond Tr NIsle Ave NHighlands Tr NJerome Ave N43rd St N
46th St N
Jackpine Tr NJasper Ave NUpper 45th St N Birch Bark Tr NIvy Ct N
Jane Ct N
49th St N
Windbreak Tr N
Irvin Ct NHeather Ridge Rd NM-243Cherrywood Tr N
Hillvale Way N
Heath Ave NHelmo Pl NHill Trail Ct N
Hidden Bay Ct N
H illv a le C ir N
4 4 th S t N
5 3 r d S t N
Jamaca Ave N49 t h S t N
Lake JanePerimeter 12771 ftSetups 4Control Pts 12
Lake De MontrevillePerimeter 17932 ftSetups 6Control Pts 18
Lake OlsonPerimeter 10439 ftSetups 3Control Pts 9
Map Document: N:\Proposals\Lake Elmo\No Wake Elevation Assessment\Research\Maps\DroneFlights.mxd | Date Saved: 12/12/2016 2:25:55 PMSlow No Wake Analysis
City of Lake Elmo, MN
Drone Flight Requirements
December 2016
Summary of Drone Requirements
Drone flights are often quantified based on setup and flight timesand post processing. 1) Battery life is approximately 25 minutes.2) Maximum flight distance of 1500' in either direction along shore.3) 3 survey control points per flight to tie in elevation.4) Post processing is 2 hours per lake.
Legend !I
Municipal Boundary
Lake
0 1,000FeetSource: MnDNR, Washington Co., MnDOT
Keats Ave NLake Elmo Ave N28th St N
Stillwater Blvd N
20th St N
3 3 r d S t N
M-236
Stillwater La
32nd St N
25th St N 24th St N30th St N
31st St N
Klondike Ave NKelvin Ave NLampert Ave NKraft Cir NL
a
n
g
ly
C
t NLansing Ave NLaverne Ct N20th Street Ct N32nd St NKlondike Ave NLake ElmoPerimeter 26516 ftSetups 9Control Pts 27
Slow No Wake Analysis
City of Lake Elmo, MN
Drone Flight Requirements
December, 2016
Map Document: N:\Proposals\Lake Elmo\No Wake Elevation Assessment\Research\Maps\DroneFlights2.mxd | Date Saved: 12/12/2016 2:30:23 PMSummary of Drone Requirements
Drone flights are often quantified based on setup and flight timesand post processing. 1) Battery life is approximately 25 minutes.2) Maximum flight distance of 1500' in either direction along shore.3) 3 survey control points per flight to tie in elevation.4) Post processing is 2 hours per lake.
Legend !I
Municipal Boundary
Lake
0 1,000FeetSource: MnDNR, Washington Co., MnDOT
-
Wenck Associates, Inc. | 7500 Olson Memorial Highway | Suite 300 | Golden Valley, MN 55427
Toll Free 800-472-2232 Main 763-252-6800 Email wenckmp@wenck.com Web wenck.com
November 30, 2016
Kristina Handt
City Administrator
City of Lake Elmo, MN
Via: email
RE: Proposal for Professional Services Related to Investigating Lake No-Wake Elevations
Dear Ms. Handt:
Thank you for this opportunity to present this proposal to provide professional services related
to investigating no-wake elevations (NWE) on Lake De Montreville, Lake Olson, Lake Jane, and
Lake Elmo. This proposal is based on our phone conversation yesterday. It is our
understanding that a third-party opinion of no-wake elevations on these lakes is desired. Wenck
has the range of expertise required to accomplish the work and past experience on Lake
Minnetonka and other lakes within the watershed districts we represent. Our proposed scope of
work, budget, and schedule are provided below.
Scope of Work
We propose the following tasks for the investigation:
· Initial field reconnaissance – site investigation of the lake shores and outlets, and
research background information (established NWEs and Ordinary High Water (OHW)
levels).
· Locate and identify known high water damage areas.
· Video the existing shoreline condition.
· Compile lake level records, precipitation data, watershed information, and outlet
characteristics.
· Perform a spreadsheet analysis of the lake level responses to a normal precipitation year
and actual responses for 2014, 2015, and 2016.
· Perform a wave analyses using public domain U.S. Army Corps of Engineers methods.
· Evaluate the benefits of: reducing the NWE on Lake De Montreville and Lake Olson;
maintaining the existing NWE on Lake Jane, and establishing a NWE on Lake Elmo.
· Prepare a report.
· Present the result to the City Council.
Schedule and Budget
Approximately six weeks are required to complete the above work. We anticipate that part of
the investigation will require open water conditions. To accommodate this, we propose to
complete a draft report by the end of next April.
We propose to complete the work on a time and expenses basis. Our estimated fees are
$19,500. Our standard terms and conditions are attached.
Kristina Handt
City Administrator
Novemeber 30, 2016
Page 2 of 2
2
C:\Users\TosJW0409\Documents\For regular backup\aWenck\Templates\Proposal\2016-11-30 proposal Lake Elmo.docx
If this proposal is acceptable, please provide an authorized signature below. Let me know if
you have any questions, or need additional information. My direct dial number is 763-252-
6831.
Sincerely,
Wenck Associates, Inc.
Joel Toso, PE
Senior Engineer
Authorization to Proceed:
___________________
Signature
___________________
Title
___________________
Date
GENERAL TERMS AND CONDITIONS
1
Article 1 Our Agreement
1.1 Our agreement with you consists of these General
Terms and Conditions and the accompanying written proposal or
authorization (Agreement). This Agreement is our entire
Agreement and supersedes all prior agreements. This Agreement
may be modified only in a writing signed by us, making specific
reference to the provision modified. Directing us to start work
prior to execution of this Agreement constitutes your acceptance
of this Agreement.
1.2 The words “you,” “we,” “us,” and “our” include
officers, employees, and subcontractors.
1.3 Any conflicting or additional terms in a purchase order,
work order, or other form used to authorize our services are not
part of our Agreement unless we specifically accept them in
writing. If we cannot agree on mutually acceptable terms, we
have the right to withdraw our proposal without liability to you or
others, and you will compensate us for services already rendered.
Article 2 Our Responsibilities
2.1 We will provide the services specifically described in
our Agreement. You agree that we are not responsible for
services that are not fairly included in our specific undertaking.
Unless otherwise agreed in writing, our findings, opinions, and
recommendations will be provided to you in writing. You agree
not to rely on oral findings, opinions, or recommendations
without our written approval.
2.2 In performing our services, we will use that degree of
care and skill ordinarily exercised by reputable members of our
profession practicing under similar circumstances in the same
locality at the same time. .
2.3 Our duties do not include supervising your contractors
or commenting on, overseeing, or providing the means and
methods of their work, unless we accept such duties in writing.
We will not be responsible for the failure of your contractors to
perform in accordance with their undertakings, and the providing
of our services will not relieve others of their responsibilities to
you or to others.
2.4 We will provide a health and safety program for our
employees, but we will not be responsible for contractor, job, or
site health or safety unless we accept that duty in writing. You will
provide, at no cost to us, appropriate site safety measures as to
work areas to be observed or inspected by us.
2.5 Our estimates of construction or remediation costs will
be based on information available to us and on our experience
and knowledge. Such estimates are an exercise of our
professional judgment and are not guaranteed or warranted.
Actual costs may vary. You should allow a contingency in addition
to estimated costs.
2.6 Locations of field observations or sampling described
in our report or shown on our sketches are based on information
provided by others or estimates made by our personnel. You
agree that such dimensions, depths, or elevations are
approximations unless specifically stated otherwise in the report.
You accept the inherent risk that samples or observations may not
be representative of things not sampled or seen and that site
conditions may change over time.
Article 3 Your Responsibilities
3.1 You agree to provide us with all site information and
data to which you have access which may affect our services. We
will not be responsible for locating buried objects at the site
unless we accept that duty in writing. You agree to hold us
harmless from claims, damages, losses, and related expenses
involving buried objects that were not properly marked or
identified or of which you had knowledge but did not timely call
to our attention or correctly show on the plans you or others on
your behalf furnished to us.
3.2 You will provide access to the site. In the course of our
work some damage is normal even when due care is exercised.
We will use reasonable care to minimize damage to the site but
we will not be responsible for reasonable or normal damage. We
have not included the cost of restoration of such damage in the
estimated charges.
3.3 You agree to provide us with information in your
possession or control relating to contamination at the work site.
3.4 Neither this Agreement nor the providing of services
will operate to make us an owner, operator, generator,
transporter, treater, storer, or a disposal facility within the
meaning of the Resource Conservation Recovery Act, as amended,
or within the meaning of any other law governing the handling,
treatment, storage, or disposal of hazardous materials. You agree
to hold us harmless and indemnify us from any such claim or loss.
3.5 Monitoring wells are your property, and you are
responsible for their permitting, maintenance, and abandonment
unless we accept that duty in writing.
3.6 You agree to make disclosures required by law. In the
event you do not own the site, you acknowledge that it is your
duty to inform the owner of the discovery or release of
contaminants at the site. You agree to hold us harmless and
indemnify us from claims related to disclosures made by us that
are required by law and from claims related to the informing or
failure to inform the site owner of the discovery of contaminants.
Article 4 Reports and Records
4.1 Our reports, notes, calculations, and other documents
and our computer software and data are instruments of our
service to you, and they remain our property but are subject to a
license to you for your use in the related project for the purposes
disclosed to us. You may not transfer our reports to others or use
them for a purpose for which they were not prepared without our
written approval. You agree to indemnify and hold us harmless
from claims, damages, losses, and expenses, including attorney
fees, arising out of such a transfer or use. At your request, we will
provide endorsements of our reports or letters of reliance, but
only if the recipients agree to be bound by the terms of our
agreement with you and only if we are paid the administrative fee
stated in our then current Schedule of Charges.
4.2 Because electronic documents may be modified
intentionally or inadvertently, you agree that we will not be liable
for damages resulting from change in an electronic document
occurring after we transmit it to you.
4.3 If you do not pay for our services in full as agreed, we
may retain work not yet delivered to you and you agree to return
to us all of our work that is in your possession or under your
control.
GENERAL TERMS AND CONDITIONS
2
4.4 Samples and field data remaining after tests are
conducted and field and laboratory equipment that cannot be
adequately cleansed of contaminants are and continue to be your
property. They may be discarded or returned to you, at our
discretion, unless within 15 days of the report date you give us
written direction to store or transfer the materials at your
expense.
4.5 Electronic data, reports, photographs, samples and
other materials provided by you or others may be discarded or
returned to you, at our discretion, unless within 15 days of the
report date you give us written direction to store or transfer the
materials at your expense.
Article 5 Compensation
5.1 You will pay for services as agreed upon or according
to our then current Schedule of Charges if there is no other
written agreement as to price. An estimated cost is not a firm
figure. You agree to pay all sales taxes and other taxes based on
your payment of our compensation. Our performance is subject
to credit approval and payment of any specified retainer.
5.2 You will notify us of billing disputes within 15 days. You
will pay undisputed portions of invoices on receipt. You agree to
pay interest on unpaid balances beginning 30 days after invoice
dates at the rate of 1.5% per month, or at the maximum rate
allowed by law.
5.3 If you direct us to invoice another, we will do so, but
you agree to be responsible for our compensation unless you
provide us with that person's written acceptance of all terms of
our Agreement and we agree to extend credit to that person and
to release you.
5.4 Your obligation to pay for our services under this
Agreement is not contingent on your ability to obtain financing,
governmental or regulatory agency approval, permits, final
adjudication of lawsuit in which we are not involved, your
successful completion of a project, receipt of payment from
another, or any other event. No retainage will be withheld.
5.5 You agree to compensate us in accordance with our
fee schedule if we are asked or required to respond to legal
process arising out of a proceeding related to the project and as
to which we are not a party.
5.6 If we are delayed by factors beyond our control, or if
project conditions or the scope or amount of work change, or if
changed labor union conditions result in increased costs,
decreased efficiency, or delays, or if the standards or methods
change, we will give you timely notice and we will receive an
equitable adjustment of our compensation.
5.7 In consideration of our providing insurance to cover
claims made by you, you hereby waive any right of offset as to
fees otherwise due us.
Article 6 Disputes, Damage, and Risk Allocation
6.1 Each of us will exercise good faith efforts to resolve
disputes without litigation. Such efforts will include, but not be
limited to, a meeting(s) attended by each party’s representative(s)
empowered to resolve the dispute. Before either of us
commences an action against the other, disputes (except
collections) will be submitted to mediation.
6.2 Neither of us will be liable for special, incidental,
consequential, or punitive damages, including but not limited to
those arising from delay, loss of use, loss of profits or revenue,
loss of financing commitments or fees, or the cost of capital.
6.3 For you to obtain the benefit of a fee which includes a
reasonable allowance for risks, you agree that our aggregate
liability for all claims will not exceed the proceeds from available
insurance.
6.4 You agree to indemnify and defend us from all liability
to others in excess of the risk allocation stated above and to
insure this obligation.
6.5 The prevailing party in any action relating to this
agreement shall be entitled to recover its costs and expenses,
including reasonable attorney fees, staff time, and expert witness
fees.
6.6 The law of the state in which our servicing office is
located will govern all disputes. Each of us waives trial by jury.
Article 7 General Indemnification
7.1 We will indemnify and hold you harmless from and
against demands, damages, and expenses of others to the
comparative extent they are caused by our negligent acts or
omissions or those negligent acts or omissions of persons for
whom we are legally responsible. You will indemnify and hold
harmless from and against demands, damages, and expenses of
others to the comparative extent they are caused by your
negligent acts or omissions or those negligent acts or omissions of
persons for whom you are legally responsible.
7.2 To the extent it may be necessary to indemnify either
of us under Section 7.1, you and we expressly waive, in favor of
the other only, any immunity or exemption from liability that
exists under any worker compensation law.
7.3 You agree to indemnify us against losses and costs
arising out of claims of patent or copyright infringement as to any
process or system that is specified or selected by you or by others
on your behalf.
Article 8 Miscellaneous Provisions
8.1 We will provide a certificate of insurance to you upon
request.
8.2 You and we, for ourselves and our insurers, waive all
claims and rights of subrogation for losses arising out of causes of
loss covered by our respective insurance policies.
8.3 Neither of us will assign or transfer any interest, any
claim, any cause of action, or any right against the other. Neither
of us will assign or otherwise transfer or encumber any proceeds
or expected proceeds or compensation from the project or
project claims to any third person, whether directly or as
collateral or otherwise.
8.4 Our Agreement may be terminated early only in
writing. We will receive an equitable adjustment of our
compensation in the event of early termination.
8.5 If a provision of this Agreement is invalid or illegal, all
other provisions shall remain in full force and effect.