Item 4GMEMORANDUM
June 30, 2010
TO: Honorable Mayor and City Council
FROM: Lorrie Fletcher, Planner I
SUBJECT: Approve a professional services contract with Kleinfelder for ambient air quality
testing within the City of Southlake
Action Requested: City Council approval of a professional services contract with Kleinfelder for
limited ambient air quality testing at eight locations within the City of Southlake, to
include sampling, analysis, reports, and presentation of findings for a total
amount not to exceed $14,000.
Background
Information: Attached are a proposed Limited Ambient Air Quality Evaluation and Client
Master Services Agreement with Kleinfelder to perform air quality testing at eight
different locations within the City of Southlake, to include potential gas well sites
as identified by the Texas Railroad Commission and other sites identified by the
City. With the identification of possible volatile organic compounds (VOCs), in
particular benzene, and other related emissions from oil and gas activities in
nearby municipalities, it has become necessary for a better understanding of
ambient air conditions in the City of Southlake.
The description of the attached proposed Limited Ambient Air Quality Evaluation
includes:
• Proposed Scope of Services
o Ground -level ambient air sampling
o Laboratory analysis
a Reporting, presentation and project management
• Assumptions
• Fee and Schedule
• Limitations
Kleinfelder has been involved in soil, groundwater and air quality evaluations since
the 1970's. With active offices nationwide, Kleinfelder has the ability to bring national
experience to the City of Southlake. Additionally, Kleinfelder has employees working
with the Texas Commission on Environmental Quality (TCEQ) and Texas Railroad
Commission (RRC) concerning air quality in North Texas.
Dr. Kenneth Tramm PhD., who will be the lead individual on this project, has first-
hand experience sampling, evaluating data from, and presenting to the public
information about oil and gas activity related to the Barnett -Shale exploration and
production activities. Additionally, the team brings a group of experienced local
support staff and nationally recognized experts in the field of toxicology and air
sampling and monitoring.
Kleinfelder understands the possible environmental issues that the City of Southlake
will need to address as gas drilling operations and production occurs in the city.
Kleinfelder also understands from their work with various state and federal regulators
in addition to other municipalities, options that can help the city address these
concerns.
Financial
Considerations: Total not to exceed $14,000
Strategic Link: Safety and Security, Quality Development, and Performance Management and
Service Delivery
Citizen Input!
Board Review: Not applicable.
Legal Review: Contract under review.
Alternatives:
Supporting
Documents:
• City Council approval
• City Council approval with input as desired
• City Council decision not to approve
• Proposal for Limited Ambient Air Quality Evaluation
• Client Master Services Agreement
-2-
Kleinfelder Air Quality Testing
06/30/10
KL;EINFF L AOHR
Bright People. Right Sofutions,
June 30, 2010
Proposal DFW10P185R2
Ms. Lorrie Fletcher
Planning & Development Services
City of Southlake
1400 Main Street, Suite 310
Southlake, Texas 76092
pi 817.748.8069
el Ifletcher ci.southlake.tx.us
Subject: Proposal for Limited Ambient Air Quality Evaluation
City of Southlake
Southlake, Texas
Dear Ms. Fletcher:
Kleinfelder Central, Inc. (Kleinfelder) is pleased to submit this revised proposal to
complete a Limited Ambient Air Quality Evaluation for the City of Southlake (Southlake).
This proposal has been prepared in response to our recent meetings.
The following sections provide our understanding of the. proposed project, scope of
work, fee and schedule. Kleinfelder's consulting services will be conducted in
accordance with the attached Master Services Agreement (MSA) between Southlake
and Kleinfelder.
BACKGROUND
With the identification of potential volatile organic . compounds (VOCs), in particular
benzene, and other related emissions from oil and gas activities in nearby
municipalities, Southlake has expressed an interest.in better understanding ambient air
conditions in various portions of the city. This proposal is in response to _a request to..
aid Southlake in evaluating ambient air quality conditions at locations selected by City
staff.
SCOPE OF SERVICES
TASK 1: GROUND -LEVEL AMBIENT AIR SAMPLING
Following authorization, Kleinfelder will develop a site -specific Health and Safety Plan
(HASP) for Kleinfelder personnel anticipated to be on -site. It is anticipated that the
DFW10P185R2 Page 1 of 6 June 18, 2010
Copyright 2010 K4einfeider Revision No. 2; June 30, 2010
7805 Mesquite Bend, Suite 100, Irving, TX 75063 pl 972.868,5900 fl 972.409.0008
proposed scope of services will be performed under Level D safety requirements and no
special protective gear is required.
Kleinfelder understands eight locations will be scheduled for this sampling event. The
final sampling locations will be based on a site visit to each location and coordination
with the City concerning access and locations where minimal disturbance during the
sampling period is anticipated. At the request of the City, the eight locations will be
potential gas well sites as identified by the Texas Railroad Commission as well as other
sites identified by the City. Access: will be coordinated by the City. One of these
locations will also have a duplicate sample collected for quality control purposes.
Consistent with EPA and TCEQ methodologies for air sampling, the ground -level
ambient air sample will be collected using a laboratory -prepared canisters. The canister
will be placed at the sampling point with the flow intake positioned approximately four to
six feet above the ground surface to collect an air sample representative of the
breathing zone, Field readings using a handheld photo -ionization detector (PID) will be
collected from each sampling point at the initiation and completion of each sampling
period for reference to field conditions. The canister will be fitted with a laboratory -
calibrated flow regulator to collect a sample over a 24-hour period of time. Kleinfelder
will record the sampling start date and time, canister and sample information, and
relevant field conditions such as temperature, wind direction, and odors. During
sampling, each canister will remain at the sampling location for a minimum of 24 hours.
Kleinfelder recommends the sample collection be initiated in the morning hours to
ensure the sampling period encompasses a typical work day. Following the sampling
period, Kleinfelder will return to the site to retrieve the canister (i.e. air sample) for
laboratory analysis,
The sample will be transported under chain -of -custody documentation to a NELAP
accredited laboratory for analysis. Laboratory analyses will be performed under
standard turnaround time (approximately 7 to 10 business days).
Laboratory Analysis
The proposed laboratory analyses are detailed in the following table.
. Includes one duplicate sample to aid in laboratory quality assurancelquality control
** This laboratory method includes carbon disulfide analysis within the VOCs (60+ compounds) sampled for. A full list of the
compounds included in the TO-15 analysis is attached to this proposal.
DFW1 DP185R2
Copyright 2010 Kleinfelder
Page 2of6
June 18, 2010
Revision No, 2; June 30, 2010
KLEINFELDER 7805 Mesquite Bend, Suite 100, Irving, TX 76063 pl 972.868,5900 f 1972.409.0008
TASK 2: REPORTING, PRESENTATION AND PROJECT MANAGEMENT
The preliminary results of our assessment will be verbally reported during the course of
the project. At a minimum, the findings will be discussed with you upon receipt and
review of relevant material and prior to the issuance of a written report. The final report
prepared as a part of this scope of work will be based on the conditions observed during
the site investigation activities and the information available for review by Kleinfelder.
Report reliance will be subject to the authorizing agent and proposal(s) and subject to
the limitations identified in the final report.
A limited amount of time has been included to provide presentation of the findings and
discussion of the results with Southlake staff, City representatives or designated
representatives. This will include a briefing to City Council or similar group to help
explain and answer questions generated from the prepared report.
The ambient air analytical results will be compared to the current Texas Commission on
Environmental Quality (TCEQ) Short Term Air Monitoring Comparison Values (AMCVs)
with Effects Screening Levels (ESLs) provided for reference purposes. Additional risk
criteria may be provided if relevant.
ASSUMPTIONS
The following assumptions were made in preparing this proposal:
The City will provide or arrange right -of -entry and unrestricted access to the
sampling locations.
Once placed at the sample location, the Summa canister will be left unattended
for the majority of the 24-hour sampling period. Therefore, Kleinfelder personnel
will be not be responsible for maintaining integrity of the sample location and
ensure the Summa canister is undisturbed during the sampling period. If sample
containers are removed by others, replacement costs will be required (estimated
replacement cost is $1200 to $1500 per unit). If additional monitoring of the
locations if possible by the client, it is highly recommended. This can include
negotiation with local property owners who can control access to the sampling
points.
This proposal does not include effort associated with meetings with City staff or
regulatory interaction with the TCEQ or other applicable regulatory agencies,
beyond that indicated above.
Kleinfelder anticipates that the City may request additional meetings,
presentations or other additional services not addressed in this proposal. As the
nature and required effort related to these services is not currently known,
Kleinfelder anticipates preparing change order(s) to address such requests, if
needed. Kleinfelder will prepare such change orders after consultation with the
City to identify the desired scope of work/ level of effort and associated fees to
address the work.
DFW10P185R2 Page 3 of 6 June 18, 2010
Copyright 2010 Kleinfelder Revision No, 2; June 30. 2010
KLEINFFLDER 7805 Mesquite Bend, Suite 100, Irving, TX 75063 pl 972,868.5900 f 1972.409,0008
® Only information received prior to issuance of the report can be included in the
evaluation. Kleinfelder does not guarantee the accuracy of information supplied
by its sources, but reserves the right to rely on this information in formulating a
professional opinion on the potential for contamination at the sampling locations.
FEE AND SCHEDULE
Kleinfelder proposes to complete the identified work on a lump sum basis for a cost of
$13,50..0. Additional costs might be incurred if the assumptions presented earlier are not
correct or equipment secured from the selected analytical laboratory is not returned
upon completion of the project. In the event that additional costs and services are
required, Kleinfelder will notify the client immediately and prepare an estimate of the
additional cost. Kleinfelder will not exceed the authorized amount until approval from
the client has been received.
The project budget is summarized in the table below.
PROJECT BUDGET
Task 1: Ground -Level Ambient Air Sampling
Consulting Labor
$
3,200
Laboratory Expenses ($3DOlea)
$
2,700
Sampling Equipment ($1001ea)
$
900
Field Screening 1 Expenses
$
1,200
Task 9 Subtotal
$
8,000
Task 2: Reporting, Presentation and Project Management
Consulting Labor — Data Review 1
Report Preparation__
$
3,500
Consulting Labor — Presentation 1 Discussion
$
1,500
Expenses
Task 2 Subtotal
$
$
500
5,500
ESTIMATED TOTAL
$
13,500
LIMITATIONS
Our client will provide a site contact and coordinate access for Kleinfelder to
complete the proposed services.
® The samples collected as part of these services will represent conditions at the
time of sampling only and future conditions can vary based on changing
conditions, such as: work schedules of oil and gas exploration, production, and
DFW10P185R2 Page 4 of 6 June 18, 2010
Copyright 2010 Kleinfalder Revision No. 2; June 30, 2010
KLEINFELDER 7805 Mesquite Bend, Suite 100, in+ing, TX 75063 pl 972,868.5900 fl 972.409.0008
transmission, temperature, weather factors and other industrial activities within
the city.
The scope of services described here is not intended to be all inclusive, to
identify all potential concerns, or to eliminate the possibility of all environmental
problems. Land or facility use, on- and offsite conditions, regulations, or other
factors may change over time, and additional work may be required with the
passage of time. Within current technology, no level of assessment can show
conclusively that a property, the surrounding air, or air quality within structures
are completely free of hazardous substances or petroleum products. Kleinfelder
will perform its services in a manner consistent with the standards of care and
skill ordinarily exercised by members of the profession practicing under similar
conditions in the geographic vicinity and at the time the services will be
performed. No warranty or guarantee, expressed or implied, is part of the
services offered by this proposal.
During the course of the performance of Kleinfelder's services, hazardous
materials may be discovered. Kleinfelder will assume no responsibility or liability
whatsoever for any expense, claim, loss of property value, damage, or injury that
results from or in any way connected with pre-existing hazardous materials being
encountered or present on the project site, or from the discovery of such
hazardous materials. Notwithstanding anything contained in this proposal to the
contrary, Kleinfelder shall not assume the status of an owner, operator,
generator, or person who arranges for disposal, transport, storage or treatment of
hazardous materials within the meaning of any governmental statute, regulation
or order. Our Client will be solely responsible for notifying all governmental
agencies, and the public at large, of the existence, release, treatment or disposal
of any hazardous materials observed at the project site, either before or during
performance of Kleinfelder's services. Our Client will be responsible for all
arrangements to lawfully store, treat, recycle, dispose, or otherwise handle
hazardous materials, including cuttings and samples resulting from Kleinfelder's
services.
Regulations and professional standards applicable to Kleinfelder's services are
continually evolving. Techniques are, by necessity, often new and relatively
untried. Different professionals may reasonably adopt different approaches to
similar problems. As such, our services are intended to provide our client with a
source of professional advice, opinions and recommendations based on a limited
number of field observations and tests, collected and performed in accordance
with the generally accepted practice that exists at the time, and may depend on,
and be qualified by, information gathered previously by others and provided to
Kleinfelder by our client.
® All information gathered during the study by Kleinfelder is considered confidential
and will be released only upon written authorization of the Client or as required
by law. State law may require a person to inform the state if a situation is
encountered that can be considered an immediate endangerment to the public's
health or welfare and/or to the environment.
DFW10P185R2 Page 5 of 6 June 18, 2010
Copyright 2010 Kleinfelder Revision No. 2; June 30, 2010
KLEENFELi3ER 7805 Mesquite Bend, Suite 100, Irving, TX 75063 pl 972.868.5900 fi 972,409.0008
PROJECT SCHEDULE
Kleinfelder is prepared to commence work on this project within one week following
receipt of written notification to proceed and property access to the selected sampling
points. Final reports will be issued following receipt of all final laboratory data and
comments from our client.
CLOSING REMARKS
This proposal may be accepted by signing the area below indicating the proposal is
understood and accepted, and returning a copy to us. This proposal is valid only if
authorized within 60 days from the listed proposal date.
We appreciate the opportunity to provide this proposal and look forward to working with
you on this project. If you should have any questions or comments regarding this
proposal, please contact either of the undersigned.
Sincerely,
KLEINFELDER CENTRAL, INC.
Texas Re 'stered Engineering Firm F-5592
F
/ W
Paul Hamilton, OHST, IAC
Project Manager
Attachments
A6 -
Kenneth S. Tramm, PhD, PG, CHMM
Senior Program Manager
DFW10P185R2
Copyright 2010 Kleinfelder
Page 6 of 6
June 18, 2010
Revision No. 2; June 30, 2010
KLEINFELDER 7805 Mesquite Bend, Suite 100, Irving, TX 75063 pl 972.868.5900 fl 972.409,0008
CLIENT MASTER SERVICES AGREEMENT
This Client Master Services Agreement (Agreement) is made by and between Kleinfelder Central Inc.
(KLEINFELDER) with an address at 7805 Mesquite Bend Drive, Suite 100, Irving, Texas 75063 and CltYof
Southlake. Texas with an address at 1400 Main Street Ste. 310. Southlake Texas 76092 (hereinafter referred to
as CLIENT). This Agreement consists of the following documents incorporated herein by reference:
KLEINFELDER's Proposal to CLIENT.dated June 30, 2010
Any and all Amendments and subsequent Work Orders (Sample shown in Exhibit 1)
• CLIENT's Agreement with OWNER (Prime Agreement), to the extent that the CLIENT has provided
KLEINFELDER with the Prime Agreement (and any Amendments to the Prime Agreement) and identified
the provisions which apply to KLEINFELDER.
In the event of any conflict in terms between this Agreement and any Prime Agreement specifically incorporated
herein, the provisions of this Agreement shall prevail.
NOW, THEREFORE, in consideration of the mutual undertakings set forth below, the Parties agree as follows:
1. WORK ORDERS AND SCOPE OF SERVICES: This Agreement anticipates the execution of various written
Work Orders and sets forth the terms and conditions pursuant to which KLEINFELDER will provide CLIENT the
Services (Services) specified in KLEINFELDER's Proposal and in each Work Order. By executing this Agreement,
CLIENT does not guarantee any future work, nor does KLEINFELDER commit to performing any specific future
Work Order. Each Work Order shall define the scope of Services to be performed, the location of CLIENT's project
for.providing such Services, the time period for performance, the agreed -upon fees, and additional provisions, if any,
applicable to such Services.
2. STANDAR❑ OF CARE: KLEINFELDER will perform its Services in a manner consistent with that level of care
and skill ordinarily exercised by other members of KLEINFELDER's profession practicing in the same locality,
under similar conditions and at the date the services are provided. No level of assessment can conclusively
determine whether a property or its structures are completely free of geotechnical hazards or hazardous
substances (including mold). CLIENT is advised to carefully review any limitations described in KLEINFELDER's
Proposal or in the Scope of Services. KLEINFELDER will not be responsible for constant or exhaustive inspection
of the work, the means and methods of construction or the safety procedures employed by other than its own
employees and subcontractors. Even with diligent observation, some construction defects, deficiencies, or
omissions may occur. The Parties agree that, before exercising any other remedy for any alleged breach by
KLEINFELDER of the standard of care hereunder, CLIENT will direct KLEINFELDER in writing to re -perform any
defective Services within twelve (12) months after completion of the Services. KLEINFELDER will only sign
certifications if approved by KLEINFELDER in writing prior to start of Services. CLIENT understands that any such
certifications are statements of professional opinion only. KLEINFELDER makes no other representation, guarantee,
or warranty, express or implied, regarding the Services, communication (oral or written), report, opinion, or
instrument of service provided under this Agreement.
3. KLEINFELDER'S RESPONSIBILITIES: KLEINFELDER will perform the Services as an independent contractor
and shall not act as an agent or employee of CLIENT nor shall any special relationship or fiduciary duty be created.
KLEINFELDER shall be solely responsible for the conduct of its own empioyees and for any of its employees'
compensation, benefits, contributions, and payroll taxes. KLEINFELDER will, as directed by CLIENT or its agent (1)
provide qualified staff to perform the Services specified in the Work Order; (ii) maintain records of Project site
activities and costs for a period of no more than three (3) years from completion of KLEINFELDER's services; (iii)
work, to the extent reasonably possible, in coordination with CLIENT's employees, contractors, consultants and
other site staff so as not to impede the progress of the Project; and (iv) require its personnel to maintain a safe,
clean and orderly work environment.
4. TERM AND TERMINATION: The term of this Agreement shall commence on the date of execution of this
Agreement, except as to Services authorized by CLIENT and performed by KLEINFELDER prior to execution of this
Page 1 of 6 KLEINFELDER
Client MSA CLIENT
Revised 5/17/2010
Agreement, and shall continue in effect for a period of two years or until terminated by either party as provided
herein. The parties may agree to extend this Agreement for an additional two years. Either party may terminate this
Agreement or any Work Order at any time, with or without cause, by providing not less than ten (10) days' written
notice to the other party. Notwithstanding the termination of this Agreement, this Agreement will survive as to any
and all Work Orders signed by both Parties prior to the Agreement's effective termination date, and until all of the
rights and obligations of both Parties hereunder have been fulfilled. Within fifteen (15) days from termination CLIENT
shall compensate KLEINFELDER for all Services performed hereunder through the date of any termination and for
all reasonable costs and expenses incurred by KLEINFELDER in effecting the termination, including, without
limitation, non -cancelable commitments, fixed cost components, and other demobilization costs. CLIENT may
suspend Services by giving KLEINFELDER no less than ten (10) days' written notice. If such suspension exceeds
ninety (90) days cumulative or in the aggregate, then KLEINFELDER may a) terminate this agreement; or b) agree
to resume Services provided that CLIENT agrees to any increase in fees resulting from such suspension.
5. COMPENSATION: KLEINFELDER will be compensated for its Services as specified in each Work Order.
CLIENT agrees to provide any special invoicing requirements to KLEINFELDER in advance of signing this
Agreement. Additional charges may apply to any contracting or invoicing specifications outside of
KLEINFELDER's standard procedures. CLIENT understands that time -and -materials pricing should be construed
as an estimate only and that true costs may be higher or lower, depending on actual circumstances. For Services
performed on a time -and -materials basis, KLEINFELDER shall be reimbursed for its Services and expenses at the
rates and terms set forth in its then current fee schedule. Notwithstanding the foregoing, KLEINFELDER reserves
the right to periodically adjust its fee schedule. KLEINFELDER generally submits its invoices for Services rendered
to CLIENT on a monthly basis. The terms of payment are net thirty (30) days from date of invoice, with a one and
one-half percent (1 112 %) per month surcharge on balances past due. Surcharges on amounts that are past due
shall be computed from the initial date of invoice. KLEINFELDER may suspend performance of Services under this
Agreement until KLEINFELDER has been paid in full for all balances past due, including interest charges.
KLEINFELDER shall be entitled to recover all its attorney's fees and costs resulting from its efforts to secure
payment from Client.
6. INSURANCE: KLEINFELDER represents that it currently carries Worker's Compensation, Commercial General
Liability, and Automobile Liability Insurance for bodily injury and property damage. in addition, KLEINFELDER
carries Professional Liability and Pollution Prevention insurance coverage. CLIENT represents that it currently
carries adequate insurance coverage and agrees that it will require any contractors or parties it hires directly to have
adequate coverage. Failure to do so will invalidate any Kleinfelder duty to indemnify Client under Section 11(a)
herein.
7. CHANGES: CLIENT or KLEINFELDER may request changes to the scope of Services by altering, adding to, or
deleting from the Services to be performed by KLEINFELDER. Both Parties agree to negotiate in good faith to
determine changes in scope, any needed equitable adjustment to the price and time for performance of the affected
Work Order, and to execute an amended Work Order. Failure by both parties to renegotiate in good faith changes to
the terms and conditions of any Work Order, may result in suspension of work without penalties, and termination of
this Agreement by KLEINFELDER.
8. FORCE MAJEURE: Neither party shall be liable for failure to fulfill its obligations if affected by causes beyond its
control such as Force Majeure. Force Majeure includes, but is not limited to, acts of God; acts of a legislative,
administrative, or judicial entity; acts of CLIENT's separate contractors and consultants; war; fires; floods; labor
disturbances; and unusually severe or unanticipated weather.
9. INSTRUMENTS OF SERVICE: All reports, drawings, plans, or other documents (or copies) furnished to
KLEINFELDER by the CLIENT, shall, at CLIENT's written request, be returned upon completion of the Services and
payment in full for all Services rendered; provided, however, that KLEINFELDER may retain one (1) copy of all such
documents for record keeping purposes. All reports, drawings, plans, documents, software, source code, object
code, field notes and work product (or copies thereof) in any form prepared or furnished by KLEINFELDER pursuant
to this Agreement are instruments of service. Exclusive ownership, copyright and title to all such instruments of
service shall remain with KLEINFELDER. The opinions and other information prepared or furnished by
KLEINFELDER under this Agreement, including, without limitation, its instruments of service, are not intended to
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Client MSA CLIENT
Revised 5/17/2010
inform, guide, or otherwise influence any entities or persons other than CLIENT and its Project with respect to any
particular business transactions. KLEINFELDER makes no guarantee or warranty, express or implied, regarding
the services, communication (oral or written), report, opinion, or instrument of service provided. Any requests by
third parties for Reliance upon the Instruments of Service will be subject to approval at KLEINFELDER's sole
discretion and subject to the terms of KLEINFELDER's then effective Reliance policy, which includes additional fees
and additional terms and conditions related thereto. CLIENT agrees that the Instruments of Service are to be utilized
solely for the Project. In the case of use of the Instruments of Service by CLIENT without KLEINFELDER's direct
professional involvement, KLEINFELDER's and KLEINFELDER's consultants' names and seals shall be removed
from all such documents and KLEINFELDER shall not be liable to CLIENT in any manner whatsoever for their use.
Due to the potential exposure to liability when used without KLEINFELDER's involvement, CLIENT agrees to
defend, indemnify and hold harmless KLEINFELDER, KLEINFELDER's consultants and employees from and
against any claims, damages, losses and expenses, including but not limited to, attorneys' fees, arising out of or
resulting from CLIENT's use of any such drawings, specifications or other documents.
10. CLIENT'S RESPONSIBILITIES: CLIENT agrees to (I) convey and discuss with KLEINFELDER all available
material, data, and information pertaining to the Services, including, without limitation, the composition, quantity,
toxicity, or potentially hazardous properties of any material known or believed to be present at any site, any hazards
that may be present, the nature and location of underground or otherwise not readily apparent utilities, summaries
and assessments of the site's past and present compliance status, and the status of any filed or pending judicial or
administrative action concerning the site or Project; ([i) ensure the cooperation of CLIENT's employees and separate
contractors and consultants; and (iii) be solely responsible for determining whether the Project is subject to
revai[in wa e regulations and to notify KLEINFELDER of such determination in advance of its proposal.
KLEINFELDER is entitled to rely upon the accuracy and completeness of the information given by the CLIENT.
11. ALLOCATION OF RISK: The indemnity obligations and the limitation of liability established below shall survive
the expiration or termination of this Agreement but in no event shall the indemnification obligation extend beyond the
date when the institution of legal or equitable proceedings for professional negiigence would be barred by an
applicable statute of repose or statute of limitations. The language contained in Section 11(b) shall control
irrespective of any conflict with provisions) contained in any lien waiver, affidavit of payment or any other document
related to the administration of this Agreement.
(a) Indemnification of CLIENT. Subject to the provisions and Limitation of Liability of this
Agreement, KLEINFELDER agrees to indemnify CLIENT from and against all liabilities, losses or
damages caused by the negligence or other fault of KLEINFELDER and its employees, agents,
representatives, sub -contractors, and all others for whom KLEINFELDER is legally responsible (the
"Kleinfelder Parties"), but only to the proportional extent caused by the negligence or other fault of
the Kleinfelder Parties when compared to the negligence or other fault of all other .persons and
entities. If, and only if, California law applies to this Agreement, the Parties also expressly agree
that this indemnity provision does not include, and in no event shall Kleinfelder be required to
assume, any obligation or duty to defend any claims, cause of action, demands, or lawsuits in
connection with or arising out of this Project or the Services rendered by KLEINFELDER. This
Section 11(a) is not intended to and shall not in any way be limited by any insurance coverage
available to CLIENT under any insurance policy obtained and maintained by KLEINFELDER.
(b) Indemnification of KLEINFELDER. CLIENT shall indemnify KLEINFELDER from and against all
liabilities, losses or damages caused by the negligence or other fault of CLIENT and its employees,
agents, representatives, sub -contractors, and all others for whom CLIENT is legally responsible (the
"Client Parties"), but only to the proportional extent caused by the negligence or other fault of the
Client Parties when compared to the negligence or other fault of all other persons and entities. If,
and only if, California law applies to this Agreement, the Parties also expressly agree that this
indemnity provision does not include, and in no event shall CLIENT be required to assume, any
obligation or duty to defend any claims, cause of action, demands, or lawsuits in connection with or
arising out of this Project or services rendered by CLIENT. This Section '11(b) is not intended to and
shall not in any way be limited by any insurance coverage available to KLEINFELDER under any
Insurance policy obtained and maintained by CLIENT.
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Client MSA CLIENT
Revised 5/17/2010
(c) CLIENT and KLEINFELDER agree to require a provision in all contracts with contractors,
subcontractors, subconsultants, vendors, agents and other entities involved in the Project to carry
out the intent of this Section 11.
12. STATUTE OF LIMITATION REDUCTION: Causes of action between the parties to this Agreement pertaining
to acts or failures to act shall be deemed to have accrued and the applicable statutes of limitations shall
commence to run not later than either the date of Substantial Completion of KLEINFELDER's services for acts or
failures to act occurring prior to Substantial Completion of KLEINFELDER's services, or the date of issuance of
the final payment to KLEINFELDER for acts or failures to act occurring after Substantial Completion of
KLEINFELDER's services. However, the statute of limitations may commence to run sooner than the dates of
Substantial Completion of KLEINFELDER's services or final payment to KLEINFELDER in accordance with
applicable statutory or common law. CLIENT agrees that any claim or suit for damages made or filed against
KLEINFELDER by CLIENT will be made or filed solely against KLEINFELDER or its successors or assigns and
that no shareholder or employee of KLEINFELDER shall be personally liable to CLIENT for damages under any
circumstances.
13. LIMITATION OF LIABILITY: To the fullest extent permitted by law, the total liability of KLEINFELDER arising out
of or related to this Agreement, whether based in contract or tort, shall be limited to the greater of the compensation
actually paid to KLEINFELDER for the Services under all Work Orders or $50,000, and Client hereby releases
KLEINFELDER from any liability above such amount. This Limitation of Liability shall include any Losses payable to
Client under Section 11(a), Indemnification of CLIENT. This Limitation of Liability shall apply to any and all claims,
no matter how pleaded, including but not limited to, claims for errors and omissions, breach of contract,
negligence, or breach of fiduciary duty and applies to all phases of Services performed under this Agreement.
14. WAIVER OF CONSEQUENTIAL DAMAGES. Neither party shall be responsible to the other for any special,
incidental, indirect, exemplary, punitive, penal nor consequential damages (including lost profits) incurred by either
KLEINFELDER or CLIENT or for which either party may be liable to any third parry.
15. NO CONTROL OF MEANS AND METHODS OF OTHERS: KLEINFELDER will not have control over or
charge of, nor be responsible for the construction means, methods, techniques, sequences, or procedures, or for the
safety precautions and programs of CLIENT's separate contractors and consultants in connection with the Project.
KLEINFELDER's services do not include any job site safety obligations required by the project or any applicable
code or regulation for other than its own employees or subcontractors. KLEINFELDER shall not be responsible for
the Contractor's schedules or failure to perform the Services in accordance with the Contract Documents.
KLEINFELDER shall not have control over or charge of acts or omissions of Contractor, Subcontractors, or their
agents or employees, or of any other persons performing portions of the Services.
16. SITE ACCESS: CLIENT shall, as may be required by KLEINFELDER for the successful and timely completion
of Services: (1) provide unimpeded and timely access to the site, including third party sites, if required; (ii) provide an
adequate area for KLEINFELDER's site office facilities, equipment storage, and parking; (Iii) furnish all construction
utilities and utility releases necessary for the performance of the Services; and (iv) obtain Project -specific permits
and licenses necessary for the performance of the Services.
17. WARRANTY OF TITLE, WASTE OWNERSHIP: KLEINFELDER will not take title to any hazardous materials
found at the project site. Any risk of loss with respect to all materials shall remain with the project site owner, who
shall be considered the generator of such materials, execute all manifests as the generator of such materials, and
be liable for the arrangement, transportation, treatment, and/or disposal of all material. All samples shall remain the
property of the CLIENT. CLIENT shall promptly, at its cost, remove and lawfully dispose of samples, cuttings, and
hazardous materials.
18. ASSIGNMENT AND SUBCONTRACTING: This Agreement shall not be assigned by either parry without the
prior written approval of the other party. KLEINFELDER, however, may elect to subcontract portions of the Services
to a qualified subcontractor.
Page 4 of 6 KLEINFELDER
Client MSA CLIENT
Revised 5/17/2010
19. DISPUTE RESOLUTION: If a claim or dispute arises out of or relates to the interpretation, application,
enforcement, or performance of Services under this Agreement, both Parties agree to attempt to resolve the claim or
dispute (1) at a meeting between the principals within fifteen (15) days of receipt by either party of a notice and
description of the dispute, and failing resolution (2) mediation in accordance with the AAA Construction Industry
Mediation Rules then in effect within forty-five (45) days from service of written notice. The Party seeking to initiate
mediation shall do so by submitting a formal, written request to the other party to this Agreement. If the claim or
dispute cannot be resolved through mediation and unless otherwise mutually agreed, either party may file suit in an
appropriate court in the state where the Services are performed. This section shall survive completion or termination
of this Agreement, but under no circumstances shall either party call for mediation of any claim or dispute arising out
of this Agreement after such period of time as would normally bar the initiation of iegal proceedings to litigate such
claim or dispute under the laws of the state in which the Project is located, unless another location is mutually
agreed upon.
29. WAIVER OF TERMS AND CONDITIONS: The failure of either Party in any one or more instances to enforce
one or more of the terms or conditions of this Agreement, or to exercise any right or privilege in this Agreement, or
the waiver by KLEINFELDER or CLIENT of any breach of the terms or conditions of this Agreement shall not be
construed as thereafter waiving any such terms, conditions, rights, or privileges, and the same shall continue and
remain in force and effect as if no such waiver had occurred.
21. SEVERABILITY: Every term or condition of this Agreement is severable from the others. Notwithstanding any
possible future finding by a duly constituted authority that a particular term or provision is invalid, void, or
unenforceable, this Agreement has been made with the clear intention that the validity and enforceability of the
remaining parts, terms, and provisions shall not be affected thereby.
22. NO THIRD -PARTY BENEFICIARIES: The Parties do not intend to create, and nothing in this Agreement
shall be construed to create, any benefit or right in any third party, nor is this Agreement or the services provided
hereunder intended to create any special relationship or fiduciary duty to third parties.
23. GOVERNING LAWS: This Agreement shall be governed and construed in accordance with the laws of the
State where the Services are performed.
24, ENTIRE AGREEMENT: The terms and conditions set forth herein, including any associated Work Orders,
constitute the entire understanding and agreement of both Parties with respect to the Services. Any amendment or
revision to this Agreement shall be in writing and signed by an authorized representative from each party. Any oral
modification or revision of this Agreement or any Work Order shall not operate to modify this Agreement or any Work
Order.
In witness whereof, CLIENT and KLEINFELDER have caused this Agreement to be executed by their respective
duly -authorized representatives.
CITY OF SOUTHLAKE, TEXAS KLEINFELDER CENTRAL, INC.
13y:
Name:
Title:
Date:
Page 5 of 6
Client MSA
Revised 5/17/2010
Name: Kenneth S. Tramm, PG, PhD, CHMM
Title: Vice President
Date:
KLEINFELDER
CLIENT
WORK ORDER NO:
Issued Pursuant to Master Services Agreement (Reference Number or Date of Execution )
Effective Date: June 30, 2010 by and between Kleinfelder Central, Inc. (KLEINFELDER) and City of Southlake
(CLIENT).
CLIENT Office: Southlake, Texas
Work Order Type: ❑
El
CLIENT Reference No:
KLEINFELDER Project No:
Time and Material
Fixed Price
Other (describe):
KLEINFELDER Office: Irving, Texas (DFW)
KLE[NFELDER Contact: Dr. Kenneth Tramm
1. SCOPE OF WORK: See attached Proposal DFW10P185R2.
2. LOCATION/CLIENT FACILITY INVOLVED: Southlake Ambient Air Quality Study
Southlake, Texas
3. PERIOD OF PERFORMANCE: FROM: June 2010 TO: August 2010
4. AUTHORIZED FEES: $13,500 per attached Proposal DFW10P185R2.
5. SPECIAL PROVISIONS: See attached Proposal DFW10P185R2.
NOTICE TO PROCEED IS GIVEN ON (DATE):
CITY OF SOUTHLAKE
M
Name:
KLEINFELDER CENTRAL, INC.
M
Name: Kenneth S. Tramm, PG, PhD, CHMM
Title: Title: Vice President
Date: Date:
Page 6 of 6 KLEINFELDER
Ciient MSA CLIENT
Revised 5/17/2010
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