ESA Proposal and Reliance Letter Feb 2022
446 Main Street • Worcester, MA 01608 • Tel 508.754.2201
www.tighebond.com
K-5005-004
February 22, 2022
Christina Peterson
Massachusetts Division of Fisheries and Wildlife
341 East Street
Belchertown, MA 01007
Wayne Feiden, FAICP
Director, Planning & Sustainability
City of Northampton
210 Main Street, City Hall
Northampton, MA 01060
To Whom it May Concern:
Tighe & Bond, Inc. prepared the following report for the properties located at 1051
Chesterfield Road and abutting parcels in Northampton and Westhampton, Massachusetts
(the “Subject Property”) on behalf of Kestrel Land Trust:
· Phase I Environmental Site Assessment, 1051 Chesterfield Road and Abutting Parcels,
Northampton and Westhampton, Massachusetts dated October 2021
We authorize the above listed entities to rely upon this report in the same manner as if it
were addressed to them. Any reliance on the above listed report will be in accordance with
the attached agreement between Tighe & Bond (including the enclosed Terms and
Conditions) and any limitations presented in the report. No rights or remedies are conferred
to any other parties without the expressed written consent of Tighe & Bond.
Very truly yours,
TIGHE & BOND, INC.
Matthew G. Wagner, LSP
Senior Environmental Scientist
Attached:
Signed Agreement dated July 22, 2021
Terms and Conditions
J:\K\K5005 Kestrel Trust\Westhampton-Northampton 2021\K5005 Reliance Letter Feb 2022.doc
53 Southampton Road • Westfield, MA 01085-5308 • Tel 413.562.1600
www.tighebond.com
K-5005
July 22, 2021
Kristin DeBoer
Executive Director
Kestrel Land Trust
PO Box 1016
Amherst, MA 01004
Re: Phase I Environmental Site Assessment
1051 Chesterfield Road and Abutting Parcel
Northampton and Westhampton, Massachusetts
Dear Ms. DeBoer:
Tighe & Bond is pleased to submit this proposal to complete a Phase I Environmental Site
Assessment (ESA) for the parcels of land identified by the Northampton Assessor’s office as
14-001-700, 14-001-800 and 14-002-001 located at 1051 Chesterfield Road in Northampton,
Massachusetts, and parcels of land identified by the Westhampton Assessor’s office as 12-18
in Westhampton, Massachusetts, hereinafter referred to as the Site. We understand that a
Phase I ESA is needed to support your due diligence efforts prior to your acquisition of the
Site. Tighe & Bond’s proposed scope of services and fee is described below and in the
attachments.
A Phase I ESA will be performed for the Site in accordance with the AAI Final Rule and the
American Society of Testing and Materials (ASTM) Standard E1527-13 standard. The purpose
of conducting an assessment under the ASTM Standard and AAI rules is to satisfy one of the
requirements to qualify for the innocent landowner, contiguous property owner or bona fide
prospective purchaser limitations under the Comprehensive Environmental Response,
Compensation and Liability Act (CERCLA).
Site Background
According to on-line Assessor’s database and information provided by you, the Site consists
of approximately 42 acres of land in Northampton and 179 acres of land in Westhampton for
a total area of 221 acres. Based on our preliminary knowledge, the Site is wooded and largely
undeveloped. A portion of the Site is developed as a farm and fields, and another area of the
Site was used as a gravel pit.
Tighe & Bond proposes the following approach to this Phase I ESA:
Task 1 ASTM Phase I ESA
The purpose of the Phase I ESA will be to identify Recognized Environmental Conditions
(RECs), including Historical or Controlled RECs (HRECs or CRECs), as defined in ASTM
E1527-13, and associated with a current or past release of hazardous substances or petroleum
products in connection with the Site. Also, per the current ASTM standard, the potential for
vapor migration from the subsurface environment into indoor air is also identified during the
Phase I, whether or not an occupied building is currently present on the Site or in the future.
Where the potential for a Vapor Encroachment Condition is identified during the Phase I ESA,
a Tier 1 and/or Tier 2 Vapor evaluation in accordance with ASTM Standard E 2600 will be
recommended.
The Phase I ESA will include the following four core tasks: 1) a records review; 2) a Site
reconnaissance; 3) interviews with owners or knowledgeable parties; and 4) evaluation of the
- 2 -
information obtained and preparation of the Phase I report. A detailed description of the
Phase I ESA core tasks is provided in Attachment A.
The findings of the Phase I will be summarized in a report prepared in general conformance
with the ASTM 1527-13 suggested format. Per AAI, the final report will include: 1) an opinion
regarding the presence of RECs, HRECs, or CRECs at the Site, 2) identification of “data gaps”
and their significance, 3) a statement of the Environmental Professional’s (EP’s) qualifications
and their signatures, and 4) an opinion regarding the need for additional evaluations (which
can be provided separately if requested). Tighe & Bond will provide you with an electronic
PDF copy of the report and up to three hardcopies if requested.
Task 2 Technical Support Services
For some due diligence assessments, supplemental environmental consulting advice may be
needed in support of strategy development or communications with stakeholder(s) during the
property transfer process. These services may be in the form of emails, phone calls,
letters/memorandums, or in-person meetings and are not included as part of our standard
Phase I ESA (Task 1 above). Tighe & Bond can provide these services as needed upon client
request and will be charged on a time and expense basis.
User Responsibilities
To qualify for one of the Landowner Liability Protections (LLPs), the User must conduct the
inquiries required by 40 CFR 312.25, 312.28, 312.29, 312.30, and 312.31, which are
summarized in the User Questionnaire to be provided. Failure to provide this information
could result in a finding that “all appropriate inquiries” is not complete.
Phase I ESA Limitations and Exclusions
The following services are not included with the Phase I ESA;
1. Completion of an Environmental Liens Search (ELR). Tighe & Bond will inquire about
environmental liens or Activity and Use Limitations (AULs) for the subject parcel, but a review
of recorded land title or judicial records will not be conducted. If a search for these records
is desired, then Tighe & Bond can use an environmental database service provider to conduct
this search for an additional fee of $400 (per parcel). Tighe & Bond anticipates that a
separate title and lien search will be conducted by the User.
2. Meetings/conference calls in response to the Phase I findings, which can be provided on a
time and expense basis (Task 2).
3. Review of lengthy reports and regulatory files associated with large, complex sites that may
not have been known to Tighe & Bond at the time of the writing this proposal. Review of
additional reports can be provided on a time and expense basis.
4. Reliance letters to lending institutions or other third-parties are not included; however, these
Reliance Letters can be prepared at the client’s request provided the relying party agrees to
the same Terms and Conditions of our Agreement. An additional fee may be required to
prepare the Reliance Letter.
5. Phase I updates beyond report validity timeframes (see Task 4 in attached scope)
6. Evaluation of “non-scope” issues as defined by ASTM. Users of the Phase I may expand the
scope of the due diligence to assess other “business environmental risk or BER” that exist
beyond CERCLA liability. Non-scope considerations include:
a. Asbestos-containing and polychlorinated biphenyl (PCB)-containing building materials
b. Radon
c. Lead-based paint and lead in drinking water
- 3 -
d. Wetlands or other environmental resource areas
e. Past or current regulatory compliance (federal, state, local, including health & safety)
f. Indoor air quality (excluding the potential for impacts from hazardous substances
rereleased to the subsurface environment)
g. Biologicals and Mold
h. Endangered species
i. Cultural or historical resources
Potential BER items can have a material environmental or environmentally-driven impact on
the business associated with the current or planned use of the Site.
Fee
Tighe & Bond will perform services for Task 1 for a lump sum fee of $5,000, invoiced monthly
based on percentage complete.
Services for Task 2 (if required and requested) will be billed at an hourly plus expense basis and
you will be billed in accordance with our standard rates.
In the event that the scope of services is increased for any reason, the lump sum fee to
complete the work shall be mutually revised by written amendment. Our attached Terms and
Conditions is part of this letter agreement.
If this agreement is acceptable, please sign one copy and return to my attention at your
earliest convenience. If you have any questions or need additional information, please feel
free to contact Matt Wagner at 413-572-3258.
Very truly yours,
TIGHE & BOND, INC.
Jeffrey L. Arps, LSP Matthew G. Wagner, LSP
Director, Remediation & Field Services Senior Environmental Scientist
Enclosures: ASTM Phase I – Scope of Services
Terms and Conditions
ACCEPTANCE:
On behalf of Kestrel Land Trust, the scope, fee, and the attached terms and conditions are
hereby accepted.
Authorized Representative Date
J:\K\K5005 Kestrel Trust\Westhampton-Northampton 2021\Phase I Proposal_Westhampton-Northampton July 2021.docx
- 4 -
Attachment A
ASTM Phase I ESA – Scope of Services
The Phase I ESA will be conducted in accordance with the American Society for Testing and Materials
(ASTM) E1527-13 Standard Practice for Environmental Site Assessments: Phase I Environmental Site
Assessment Process. This ASTM standard is recognized by the United States Environmental Protection
Agency (USEPA) as consistent with the All Appropriate Inquiry (AAI) Rule under the 2002 Small Business
Liability Relief and Brownfields Revitalization Act (aka ”Brownfields Amendments”) that amended the
Comprehensive Environmental Response, Compensation and Liability Act (CERCLA) Regulations 40 CFR
312. The ASTM E1527-13 is the recognized industry consensus-based standard for conducting AAI for
commercial real estate with respect to the range of contaminants within the scope of CERCLA and
petroleum products. Compliance with this standard is required to satisfy one of the requirements to
qualify for the innocent landowner, contiguous property owner or bona fide prospective purchaser
limitations under CERCLA (landowner liability protection or LLP).
The objective of the Phase I ESA will be to identify Recognized Environmental Conditions (RECs)
including any Historical or Controlled RECs (HRECs or CRECs) as defined in ASTM E1527-13 and
associated with a current or past release of hazardous substances or petroleum products in connection
with the Site. The terms REC, HREC, and CREC as defined under ASTM E1527-13 are explained below:
REC (ASTM Section 3.2.78) - “the presence or likely presence of any hazardous substances
or petroleum products in, on, or at a property: (1) due to any release to the environment;
(2) under conditions indicative of a release to the environment; or (3) under conditions that
pose a material threat of a future release to the environment.”
Historical REC or HREC (ASTM Section 3.3.42) – “a past release of any hazardous substances
or petroleum products that has occurred in connection with the property and has been
addressed to the satisfaction of the applicable regulatory authority or meeting unrestricted
residential use established by a regulatory authority, without subjecting the property to any
required controls (e.g. property use restrictions, Activity and Use Limitations (AULs),
institutional controls, or engineering controls).”
Controlled REC or CREC (ASTM Section 3.2.18) - “a REC resulting from a past release of
hazardous substances or petroleum products that has been addressed to the satisfaction of
the applicable regulatory authority (e.g. as indicated by the issuance of a no further action
letter or equivalent, or meeting risk‐based criteria established by regulatory authority), with
hazardous substances or petroleum products allowed to remain in place subject to the
implementation of required controls (e.g. property use restrictions, AULs, institutional
controls, or engineering controls).”
RECs, HRECs, and CRECs exclude de minimis conditions that generally do not present a threat to human
health or the environment and that would not be the subject of an enforcement action by a local, state
or federal governmental agency.
In accordance with ASTM E1527-13, the Phase I ESA includes the identification of the potential for the
migration or intrusion of volatile compounds in soil vapor into indoor air whether or not an occupied
building is currently present on the Site or in the future. If the potential for vapor intrusion is found to
exist at the Site, this condition will be identified as a potential REC, and a Vapor Encroachment Condition
evaluation in accordance with ASTM E2600 will be recommended. Note: A Phase I ESA does not include
an assessment or evaluation of vapor intrusion pathways at the Site.
- 5 -
USER PROVIDED INFORMATION AND RESPONSIBILITIES
A User seeking protection from CERCLA liability as an innocent landowner, bona fide prospective
purchaser, or contiguous property owner must complete all components of the AAI process in addition
to meeting ongoing obligations. AAI components, CERCLA liability relief, and ongoing obligations are
discussed in the AAI Rule and in Appendix XI of the ASTM E 1527-13 Standard. Prior to or during the
Phase I, Tighe & Bond requests that you (the User) complete a User Questionnaire. Although it is not
required by ASTM E 1527-13 or the AAI Rule, failure on the part of you (the User) to obtain such
information for their own records, should it be reasonably ascertainable, may invalidate the User’s
compliance with the AAI Rule for CERCLA liability protection in the future.
SCOPE OF SERVICES
The Phase I ESA process consists of four components and will include: 1) a records review, 2) a Site
reconnaissance, 3) interviews with owners or knowledgeable parties, and 4) an evaluation and a report.
The report will be signed by an Environmental Professional (EP) and include an Opinion regarding the
presence of RECs, HRECs, or CRECs at the Site. The details of the Phase I ESA process are described
below:
Task 1 - Records Review
Tighe & Bond will review relevant records for the Site to obtain current or historical background
information about the use of oil or hazardous substances at or on abutting properties and that will help
to identify RECs, HRECs, or CRECs in connection with the Site. The records review will entail a review
of records that are reasonably ascertainable from standard sources and that will include one or more of
the following:
Existing Site Records or Previous Reports: Tighe & Bond requests that you (the User)
assemble and provide us with any and all existing property record and previous reports. This
would include documents such as: previous environmental site assessment reports;
environmental compliance audit reports; environmental permits; registrations for
underground and above-ground storage tanks; registrations for injection systems; safety
data sheets; community right-to-know plan; safety plans; spill prevention plans; emergency
preparedness plans; hydrogeologic reports for the Site; any government notices concerning
the Site; hazardous waste records and reports; geotechnical studies; risk assessments;
recorded activity and use limitations (AULs), or environmental land use restrictions (ELURs).
Note: Tighe & Bond anticipates that the User will engage a separate title company, real estate
attorney, or title professional to undertake a review of reasonably ascertainable recorded
land title records and environmental (e.g. AUL) or other liens currently recorded for the Site.
Environmental Database Search Report: This report will be obtained from an independent
third party service provider (e.g. EDR, Inc.) and will include a search of the Standard List of
Federal, State, and Tribal Environmental Record Source in accordance with the appropriate
minimum search distance as recommended in Section 8.2.1 of the ASTM 1527-13 standard.
This list of records searched will include:
Record Source Approx. Min Search Distance
Federal NPL Site List 1 mile
Federal Delisted NPL Site List 0.5 mile
Federal CERCLIS List 0.5 mile
Federal CERCLIS NFRAP Site List 0.5 mile
Federal RCRA CORRACTS Facilities List 1.0 mile
Federal RCRA non-CORRACTS TSD Facilities List 0.5 mile
Federal RCRA Generators List Site and Adjoining Properties
Record Source Approx. Min Search Distance
Federal Institutional/Engineering Control Registry Site only
Federal ERNS list Site only
State/Tribal Hazardous Waste Sites List 1 mile
State/Tribal Equivalent NPL List 0.5 mile
State/Tribal Equivalent CERCLIS List 0.5 mile
State/Tribal Landfill/Solid Waste Disposal Site List 0.5 mile
State/Tribal Leaking Storage Tank List 0.5 mile
- 6 -
State/Tribal Registered Storage Tank List Site and Adjoining Properties
State/Tribal Institutional/Engineering Control Registry Site only
State/Tribal Voluntary Cleanup Sites 0.5 mile
State/Tribal Brownfield Sites 0.5 mile
The environmental databases will be used to further review select properties which are
identified via the database search to have a potential negative environmental impact on the
Site. Records of the Site and select area properties will be further researched in more detail
via a review of local, state, or federal files.
Physical Setting Sources: As required by ASTM 1527-13, a current USGS topographic map
of will be reviewed and included in the Phase I ESA report. Historical topographic maps will
also be obtained and reviewed from an independent third party service provider (e.g. EDR,
Inc.). Other discretionary and non-standard physical setting sources which will be reviewed
will include: USGS or state geological survey bedrock geology, surficial geology,
groundwater, or soil maps.
Standard Historical Sources: Site information will be obtained, researched, and compiled
through a review of current or historical topographic maps, aerial photographs, municipal
directories, and fire insurance maps (Sanborn® Maps). Under the AAI Rule, historical sources
are required to be reviewed as far back in history as the Site is shown to contain structures
or from the time it was first used for residential, agricultural, commercial, industrial or
governmental purposes.
Local Records: Historical data on land use will be obtained via a review of local municipal or
county records. Municipal offices and departments to be researched may be one or more of
the following departments/offices: property tax assessor; fire; planning and zoning; building;
health; engineering; or department of public works. For some Sites, Tighe & Bond may also
research newspaper archives, internet sites, on-line registry of deeds, local libraries, or
historical society, where appropriate. Information from local records review will provide
information on: general current and past usage and ownership, property
valuation/assessment, zoning and general land use, public utility services, including drinking
water source, private well usage and installations, and wastewater disposal methods (public
versus private septic).
State and Federal Records: Further review of the Site or area properties to identify potential
environmental impacts will be further researched through an online review of state or federal
files. If files are available for review but not available online, an additional fee may apply to
visit the state or federal agency.
Task 2 - Site Reconnaissance
Tighe & Bond will conduct a Site reconnaissance to visually observe and assess: 1) the current use(s)
of the Site, 2) the past use(s) of the Site, and 3) usage of hazardous substances or petroleum products
in connection with identified uses, which indicates a release or material threat of a future release to the
environment. One site visit has been budgeted using a one-person Tighe & Bond team. Specifically,
exterior and interior observations to the extent visually or physically observable shall include:
- 7 -
Exterior and Interior Areas for presence of:
Storage Tanks - aboveground or underground storage tanks (ASTs or USTs), vent pipes,
including content and approximate capacity.
Odors.
Pools of liquid on the ground or in sumps.
Drums or small containers – both labelled, unlabeled, or unidentified.
Oils suspected to contain Polychlorinated Biphenyls (PCBs) associated with electrical or
hydraulic equipment.
Exterior Areas for presence of:
Pits, ponds, or lagoons (both on the Site and adjoining properties to the extent visually
observable from the Site)
Stained soil or pavement.
Stressed vegetation.
Solid waste including areas of fill or non-natural graded areas (mounds or depressions)
indicative of trash, dumping or construction or demolition debris or other solid waste disposal.
Wastewater or other liquid (including stormwater) or any discharge to drains, ditches or
underground injection systems, streams on or adjacent to the Site.
Wells, including dry wells, irrigation wells, injection wells or active, or abandoned drinking
water wells.
Septic systems or cesspools.
We may also make reasonable attempts to access or open certain structures, manhole covers,
monitoring wells, or Site features to collect additional visual/olfactory observations. If access cannot be
made due to time constraints, safety conditions, or need for specialized tools/equipment/contractors,
we will advise you accordingly.
If the Site contains buildings, the interior of the buildings/structures will be walked through if it is safe
to do so. Interior observations will be reviewed for: heating/cooling systems and fuel source, stains
and corrosion on floor, walls, and ceilings, and floor drains and sumps. Interior observations of some
structures may be limited due to access issues or safety concerns. The exterior and interior
reconnaissance will be photographically documented (if allowed), copies of which will be included in the
report.
Notes:
1. Exterior area observations may be limited due to the presence of snow on the ground. Weather
limiting conditions, if present, and interior areas not accessible will be noted in the report.
2. Client will make arrangements for Site access with the current owner and prearrange for Tighe &
Bond personnel to enter the Site for the reconnaissance and in-person interviews. The User will
provide Tighe & Bond the contact information for the key personnel at the Site, who in turn will
coordinate a time and date for the reconnaissance or an in-person interview.
3. Testing - No subsurface explorations or chemical analyses of environmental media will be performed
during this assessment unless specifically stated. Therefore, our conclusions regarding indications
of RECs will be based on observations of existing visible conditions, and on our interpretation of Site
history and Site usage information. Further, our conclusions regarding the presence of hazardous
substances and petroleum products may not be applicable to areas beneath existing structures,
unless specific subsurface exploration, sampling, or analytical information is available and reviewed
by us for such areas.
Task 3 - Interviews
The ASTM E1527-13 standard requires that interview(s) be performed with a “key site manager(s)” (a
person(s) with good knowledge of uses and physical characteristics of the Site) to obtain information of
- 8 -
their knowledge of potential RECs, HRECs or CRECs in connection with the Site. Additionally, Tighe &
Bond will make a reasonable attempt to interview other current or past Site owner(s), occupant(s),
neighbor(s) or other knowledgeable persons who are likely to have material information (uses,
environmental practices, or permits or licenses) in connection with the Site. Interview(s) will be
conducted either in person at the Site, via telephone conversation, or via email. The results of the
interview process will be documented in the report.
Note: Tighe & Bond requests that you (the User) obtain access for the Site if you are not the not owner.
Additionally, the User will coordinate or provide Tighe & Bond with the contact information for the “key
site manager(s)” so that we can arrange a mutually convenient appointment for the Site reconnaissance
and interview. Tighe & Bond is not responsible for any false or misleading information that may be
provided by the interviewees regarding current or past practices at the Site.
Task 4 - Evaluation and Report
The results of the records search (Task 1), site reconnaissance (Task 2), and interviews (Task 3) will be
evaluated and summarized in a Phase I ESA report. The report will be prepared in conformance with
the Phase I ESA content requirements per the ASTM E1527-13. Per AAI, the final report will include: 1)
an opinion regarding the presence of RECs, HRECs, or CRES at the Site, 2) identification of data gaps
and their significance, 3) a statement of the EP’s qualifications and their signatures, and 4) an opinion
regarding the need for additional appropriate evaluation (separate from the report if requested).
Attachments to the report will include: list of User provided information; a topographic map and site
plan; a copy of the environmental database search report; a photographic log of the Site reconnaissance
and copies of relevant records.
Per the ASTM standard, the Phase I report is considered valid if completed within 180 days of the
transaction/acquisition. Phase I reports completed between 180 days and one year of the
transaction/acquisition must be updated. Phase I reports completed beyond one year of the
transaction/acquisition are not considered valid per the ASTM standard. Any subsequent relying parties
or new users are subject to the same ASTM validity durations.
TERMS AND CONDITIONS 1 of 4 REV. 04/2020
“CLIENT” is defined in the acceptance line of
the accompanying proposal letter or the name
the proposal is issued to; Tighe & Bond, Inc. is
hereby referenced as “CONSULTANT”;
“PROJECT” is defined in the accompanying
proposal letter
1. SCHEDULE OF PAYMENTS
1.1 Invoices will generally be submitted once a month for
services performed during the previous month. Payment will
be due within 30 days of invoice date. Monthly payments to
CONSULTANT shall be made on the basis of invoices submitted
by CONSULTANT and approved by CLIENT. If requested by
CLIENT, monthly invoices may be supplemented with such
supporting data as reasonably requested to substantiate them.
1.2 In the event of a disagreement as to billing, the CLIENT
shall pay the agreed portion.
1.3 Interest will be added to accounts in arrears at the rate
of one and one-half (1.5) percent per month (18 percent per
annum) or the maximum rate allowed by law, whichever is
less, of the outstanding balance. In the event counsel is
retained to obtain payment of an outstanding balance, CLIENT
will reimburse CONSULTANT for all reasonable attorney’s fees
and court costs.
1.4 If CLIENT fails to make payment in full within 30 days
of the date due for any undisputed billing, CONSULTANT
may, after giving seven days’ written notice to CLIENT,
suspend services and retain work product until paid in full,
including interest. In the event of suspension of services,
CONSULTANT will have no liability to CLIENT for delays or
damages caused by such suspension.
2. SUCCESSORS AND ASSIGNS
2.1 CLIENT and CONSULTANT each binds itself, its partners,
successors, assigns and legal representatives to the other
parties to this Agreement and to the partners, successors,
assigns and legal representatives of such other parties with
respect to all covenants of this Agreement. CONSULTANT
shall not assign, sublet or transfer its interest in this
Agreement without the written consent of CLIENT, which
consent shall not be unreasonably withheld.
2.2 This Agreement represents the entire and integrated
Agreement between CLIENT and CONSULTANT and
supersedes all prior negotiations, representations or
Agreements, whether written or oral. This Agreement may be
amended only by written instrument signed by both CLIENT
and CONSULTANT. References to this agreement include these
Terms & Conditions, any accompanying proposal or description
of services, as well as any other documents referenced or
incorporated therein. In the event one or more provisions of
any of the foregoing documents conflict with the provisions of
these Terms & Conditions, the provisions of these Terms &
Conditions shall control.
2.3 Nothing contained in this Agreement shall create a
contractual relationship or cause of action in favor of a third
party against CLIENT or against CONSULTANT.
3. STANDARD OF CARE
3.1 In providing services, CONSULTANT will use that degree
of care and skill ordinarily exercised under similar
circumstances by individuals providing such services in the
same or similar locality for similar projects.
4. TERMINATION
4.1 This Agreement may be terminated by either party upon
seven days’ written notice in the event of substantial failure by
the other party to perform in accordance with the terms hereof
through no fault of the terminating party. In addition, CLIENT
may terminate this Agreement for its convenience at any time
by giving written notice to CONSULTANT. In the event of any
termination, CLIENT will pay CONSULTANT for all services
rendered and reimbursable expenses incurred under the
Agreement to the date of termination and all services and
expenses related to the orderly termination of this Agreement.
5. RECORD RETENTION
5.1 CONSULTANT will retain pertinent records relating to the
services performed for the time required by law, during which
period the records will be made available upon reasonable
request and upon reimbursement for any applicable
retrieval/copying charges.
5.2 Samples - All soil, rock and water samples will be
discarded 30 days after submission of CONSULTANT’s report,
unless mutually agreed otherwise or unless CONSULTANT’s
customary practice is to retain for a longer period of time for
the specific type of services which CONSULTANT has agreed to
perform. Upon request and mutual agreement regarding
applicable charges, CONSULTANT will ship, deliver and/or
store samples for CLIENT.
6. OWNERSHIP OF DOCUMENTS
6.1 All reports, drawings, specifications, computer files, field
data, notes, and other documents, whether in paper or
electronic format or otherwise (“documents”), are instruments
of service and shall remain the property of CONSULTANT,
which shall retain all common law, statutory and other
reserved rights including, without limitation, the copyright
thereto. CLIENT’s payment to CONSULTANT of the
compensation set forth in the Agreement shall be a condition
precedent to the CLIENT’s right to use documents prepared by
CONSULTANT.
6.2 Documents provided by CONSULTANT are not intended
or represented to be suitable for reuse by CLIENT or others on
any extension or modification of this PROJECT or for any other
projects or sites. Documents provided by CONSULTANT on
this PROJECT shall not, in whole or in part, be disseminated
or conveyed to any other party, nor used by any other party,
other than regulatory agencies, without the prior written
consent of CONSULTANT. Reuse of documents by CLIENT or
others on extensions or modifications of this project or on
other sites or use by others on this PROJECT, without
CONSULTANT’s written permission and mutual agreement as
to scope of use and as to compensation, if applicable, shall be
at the user's sole risk, without liability on CONSULTANT’s part,
and CLIENT agrees to indemnify and hold CONSULTANT
harmless from all claims, damages, and expenses, including
attorney's fees, arising out of such unauthorized use or reuse.
6.3 Electronic Documents - CONSULTANT cannot guarantee
the authenticity, integrity or completeness of data files
supplied in electronic writeable format. If CONSULTANT
provides documents in writeable electronic format for CLIENT’s
convenience, CLIENT agrees to waive any and all claims
against CONSULTANT resulting in any way from the
unauthorized use, alteration, misuse or reuse of the electronic
documents, and to defend, indemnify, and hold CONSULTANT
harmless from any claims, losses, damages, or costs, including
attorney’s fees, arising out of the unauthorized use, alteration,
misuse or reuse of any electronic documents provided to
CLIENT.
TERMS AND CONDITIONS 2 of 4 REV. 04/2020
6.4 Electronic Data Bases – In the event that CONSULTANT
prepares electronic data bases, geographical information
system (GIS) deliverables, or similar electronic documents, it
is acknowledged by CLIENT and CONSULTANT that such
PROJECT deliverables will be used and perhaps modified by
CLIENT and that CONSULTANT’s obligations are limited to the
deliverables and not to any subsequent modifications thereof.
Once CLIENT accepts the delivery of maps, databases, or
similar documents developed by CONSULTANT, ownership is
passed to CLIENT. CONSULTANT will retain the right to use
the developed data and will archive the data for a period of
three years from the date of PROJECT completion.
7. INSURANCE
7.1 CONSULTANT will retain Workmen's Compensation
Insurance, Professional Liability Insurance with respect to
liabilities arising from negligent errors and omissions,
Commercial General Liability Insurance, Excess Liability,
Unmanned Aircraft, Cyber Liability, and Automobile Liability
during this PROJECT. CONSULTANT will furnish certificates at
CLIENT’s request.
7.2 Risk Allocation - To the fullest extent permitted by law,
and not withstanding any other provision of this Agreement,
the total liability, in the aggregate, of the CONSULTANT to the
CLIENT and anyone claiming by or through the CLIENT, for
any and all claims, losses, costs or damage, of any nature
whatsoever, the liability of CONSULTANT to all claimants with
respect to this PROJECT will be limited to an aggregate sum
not to exceed $100,000 or CONSULTANT’s compensation for
consulting services, whichever is greater. It is intended that
this limitation apply to any and all liability or cause of action
however alleged or arising, unless otherwise prohibited by law.
7.3 Damages – Notwithstanding any other provision of this
Agreement, and to the fullest extent permitted by law, neither
CLIENT nor CONSULTANT, their respective officers, directors,
partners, employees, contractors or subconsultants shall be
liable to the other or shall make any claim for any incidental,
indirect or consequential damages arising out of or connected
in any way to the PROJECT or to this Agreement. This mutual
waiver of certain damages shall include, but is not limited to,
loss of use, loss of profit, loss of business, loss of income, loss
of reputation and any other consequential damages that may
be incurred from any cause of action including negligence,
strict liability, breach of contract and breach of strict or implied
warranty. Both CLIENT and CONSULTANT shall require similar
waivers of consequential damages protecting all the entities or
persons named herein in all contracts and subcontracts with
others involved in this PROJECT.
7.4 CLIENT agrees that any and all limitations of
CONSULTANT’s liability or waivers of damages by CLIENT to
CONSULTANT shall include and extend to those individuals and
entities CONSULTANT retains for performance of the services
under this Agreement, including but not limited to
CONSULTANT’s officers, partners, and employees and their
heirs and assigns, as well as CONSULTANT’s subconsultants
and their officers, employees, and heirs and assigns.
8. DISPUTE RESOLUTION
8.1 In the event of a disagreement arising out of or relating
to this Agreement or the services provided hereunder,
CLIENT and CONSULTANT agree to attempt to resolve any
such disagreement through direct negotiations between
senior, authorized representatives of each party. If any
disagreement is not resolved by such direct negotiations,
CLIENT and CONSULTANT further agree to consider using
mutually acceptable non-binding mediation service in order
to resolve any disagreement prior to proceeding to litigation.
9. SITE ACCESS
9.1 Right of Entry - Unless otherwise agreed, CLIENT will
furnish right-of-entry on the land for CONSULTANT to make
any surveys, borings, explorations, tests or similar field
investigations. CONSULTANT will take reasonable precautions
to limit damage to the land from use of equipment, but the
cost for restoration of any damage that may result from such
field investigations is not included in the agreed compensation
for CONSULTANT. If restoration of the land is required greater
than those included in the scope of work, upon mutual
agreement this may be accomplished as a reimbursable
additional service at cost plus ten percent.
9.2 Damage to Underground Structures - Reasonable care
will be exercised in locating underground structures in the
vicinity of proposed subsurface explorations. This may include
contact with the local agency coordinating subsurface utility
information and/or a review of plans provided by CLIENT or
CLIENT representatives for the site to be investigated.
CONSULTANT shall be entitled to rely upon any information or
plans prepared or made available by others. In the absence of
physically confirmed underground structure locations, CLIENT
agrees to accept the risk of damage and costs associated with
repair and restoration of damage resulting from the
exploration work.
10. OIL AND HAZARDOUS MATERIALS
10.1 If, at any time, evidence of the existence or possible
existence of asbestos, oil, or other hazardous materials or
substances is discovered, outside of any agreed scope of work
or greater than those anticipated in any agreed scope of work,
CONSULTANT reserves the right to renegotiate the fees for
CONSULTANT’s services and CONSULTANT’s continued
involvement in the PROJECT. CONSULTANT will notify CLIENT
as soon as practical if evidence of the existence or possible
existence of such hazardous materials or substances is
discovered.
10.2 The discovery of the existence or possible existence of
hazardous materials or substances, outside or greater than
any proposed in the agreed scope of work, may make it
necessary for CONSULTANT to take accelerated action to
protect human health and safety, and/or the environment.
CLIENT agrees to compensate CONSULTANT for the cost of
any and all measures that in its professional opinion are
appropriate to preserve and/or protect the health and safety
of the public, the environment, and/or CONSULTANT’s
personnel. To the full extent permitted by law, CLIENT waives
any claims against CONSULTANT and agrees to indemnify,
defend and hold harmless CONSULTANT from any and all
claims, losses, damages, liability, and costs, including but not
limited to cost of defense, arising out of or in any way
connected with the existence or possible existence of such
hazardous materials substances at the site.
11. SITE INVESTIGATIONS
11.1 In soils, groundwater, soil gas, indoor air, or other
investigations, conditions may vary between successive test
points and sample intervals and for locations at or between
where observations, exploration, and investigations have
been made. Because of the variability of conditions and the
inherent uncertainties in such evaluations, explorations, or
investigations, changed or unanticipated conditions may
occur that may affect overall PROJECT costs and/or
execution. These variable conditions and related impacts on
cost and PROJECT execution are not the responsibility of
CONSULTANT.
11.2 CLIENT recognizes that special risks occur whenever
engineering or related disciplines are applied to provide
TERMS AND CONDITIONS 3 of 4 REV. 04/2020
information regarding subsurface conditions. Even an
agreed sampling and testing program, implemented with
appropriate equipment and personnel with the assistance of
a trained professional performing in accordance with the
applicable professional standard of care, may provide data
or information which differs significantly from that discovered
or encountered subsequently. Environmental, geological, and
geotechnical conditions, that CONSULTANT may infer to exist
between sampling points may differ significantly from those
discovered or encountered subsequently. The passage of
time also should be considered, and CLIENT recognizes that
due to natural occurrences or direct, or indirect human
intervention at or near the site, actual conditions may
quickly change. CONSULTANT shall not be responsible for
the identification of emerging contaminants for which no
current regulatory provisions exists nor shall CONSULTANT
be held liable for not identifying or discussing these
compounds even if those compounds are detected at a later
date. CLIENT realizes that these risks cannot be eliminated.
The services included in this agreement are those agreed to,
or selected, consistent with CLIENT’s risk preferences and
other considerations including cost and schedule.
11.3 By authorizing CONSULTANT to proceed with the site
investigation services, CLIENT confirms that CONSULTANT
has not created nor contributed to the presence of any
existing hazardous substances or conditions at or near the
site. CLIENT recognizes that there is an inherent risk in
drilling, borings, punching or driving probes, excavating
trenches or implementing other methods of subsurface
exploration at or near a site contaminated by hazardous
materials. Further, CLIENT recognizes that these are
inherent even through the exercise of the Standard of Care.
CLIENT accepts the risk and agrees to defend, indemnify,
and hold CONSULTANT and each of CONSULTANT’s
subcontractors, consultants, officers, directors, and
employees harmless against and all claims for damages,
costs, or expenses direct or consequential, in connection with
a release of hazardous substances, except to the extent that
such claims, damages, or losses are adjudicated to have
resulted from CONSULTANT’s gross negligence or willful
misconduct in the performance of the services.
12. FEDERAL AND STATE REGULATORY AGENCY
AUDITS
12.1 For certain services rendered by CONSULTANT,
documents filed with federal and state regulatory agencies
may be audited after the date of filing. In the event that
CLIENT’s PROJECT is selected for an audit, CLIENT agrees to
compensate CONSULTANT for time spent preparing for and
complying with an agency request for information or
interviews in conjunction with such audit. CLIENT will be
notified at the time of any such request by an agency, and
CONSULTANT will invoice CLIENT based on its standard billing
rates in effect at the time of the audit.
13. CLIENT’s RESPONSIBILITIES
13.1 Unless otherwise stated in the Agreement, CLIENT will
obtain, arrange, and pay for all notices, permits, and licenses
required by local, state, or federal authorities; and CLIENT
will make available the land, easements, rights-of-way, and
access necessary for CONSULTANT's services or PROJECT
implementation.
13.2 CLIENT will examine CONSULTANT's studies, reports,
sketches, drawings, specifications, proposals, and other
documents and communicate promptly to CONSULTANT in
the event of disagreement regarding the contents of any of
the foregoing. CLIENT, at its own cost, will obtain advice of
an attorney, insurance counselor, accountant, auditor, bond
and financial advisors, and other consultants as CLIENT
deems appropriate; and render in writing decisions required
by CLIENT in a timely manner.
14. OPINIONS OF COST, FINANCIAL ANALYSES,
ECONOMIC FEASIBILITY PROJECTIONS, AND
SCHEDULES
14.1 CONSULTANT has no control over cost or price of labor
and materials required to implement CLIENT’s PROJECT,
unknown or latent conditions of existing equipment or
structures that may affect operation or maintenance costs,
competitive bidding procedures and market conditions, time
or quality of performance by operating personnel or third
parties, and other economic and operational factors that may
materially affect the ultimate PROJECT cost or schedule.
Therefore, CONSULTANT makes no warranty, expressed or
implied, that CLIENT's actual PROJECT costs, financial
aspects, economic feasibility, or schedules will not vary from
any opinions, analyses, projections, or estimates which may
be provided by CONSULTANT. If CLIENT wishes additional
information as to any element of PROJECT cost, feasibility, or
schedule, CLIENT at its own cost will employ an independent
cost estimator, contractor, or other appropriate advisor.
15. CONSTRUCTION PHASE PROVISIONS
The following provisions shall be applicable should the
CONSULTANT be retained to provide Construction Phase
Services in connection with the PROJECT:
15.1 CLIENT and Contractor - The presence of
CONSULTANT's personnel at a construction site, whether as
onsite representatives or otherwise, does not make
CONSULTANT or CONSULTANT's personnel in any way
responsible for the obligations, duties, and responsibilities of
the CLIENT and/or the construction contractors or other
entities, and does not relieve the construction contractors or
any other entity of their respective obligations, duties, and
responsibilities, including, but not limited to, all construction
methods, means, techniques, sequences, and procedures
necessary for coordinating and completing all portions of the
construction work in accordance with the construction
contract documents and for providing and/or enforcing all
health and safety precautions required for such construction
work.
15.2 Contractor Control - CONSULTANT and CONSULTANT's
personnel have no authority or obligation to monitor, to
inspect, to supervise, or to exercise any control over any
construction contractor or other entity or their employees in
connection with their work or the health and safety
precautions for the construction work and have no duty for
inspecting, noting, observing, correcting, or reporting on
health or safety deficiencies of the construction contractor(s)
or other entity or any other persons at the site except
CONSULTANT's own personnel.
15.3 On-site Responsibility - The presence of CONSULTANT's
personnel at a construction site is for the purpose of
providing to CLIENT an increased degree of confidence that
the completed construction work will conform generally to
the construction documents and that the design concept as
reflected in the construction documents generally has been
implemented and preserved by the construction
contractor(s). CONSULTANT neither guarantees the
performance of the construction contractor(s) nor assumes
responsibility for construction contractor's failure to perform
work in accordance with the construction documents.
15.4 Payment Recommendations - Recommendations by
CONSULTANT to CLIENT for periodic construction progress
payments to the construction contractor(s) are based on
CONSULTANT's knowledge, information, and belief from
selective observation that the work has progressed to the
point indicated. Such recommendations do not represent that
TERMS AND CONDITIONS 4 of 4 REV. 04/2020
continuous or detailed examinations have been made by
CONSULTANT to ascertain that the construction contractor(s)
have completed the work in exact accordance with the
construction documents; that the final work will be
acceptable in all respects; that CONSULTANT has made an
examination to ascertain how or for what purpose the
construction contractor(s) have used the moneys paid; that
title to any of the work, materials, or equipment has passed
to CLIENT free and clear of liens, claims, security interests,
or encumbrances; or that there are no other matters at issue
between CLIENT and the construction contractors that affect
the amount that should be paid.
15.5 Record Drawings - Record drawings, if required as part
of CONSULTANT’s agreed scope of work, will be prepared, in
part, on the basis of information compiled and furnished by
others, and may not always represent the exact location,
type of various components, or exact manner in which the
PROJECT was finally constructed. CONSULTANT is not
responsible for any errors or omissions in the information
from others that are incorporated into the record drawings.
16. DESIGN WITHOUT CONSTRUCTION PHASE
SERVICES
The following provisions shall be applicable should the
CONSULTANT be retained to provide design services but not
be retained to provide Construction Phase Services in
connection with the PROJECT:
16.1 It is understood and agreed that the CONSULTANT's
Scope of Services under this proposal does not include
project observation or review of the Contractor's
performance or any other construction phase services, and
that such services will be provided by the CLIENT or others.
The CLIENT assumes all responsibility for interpretation of
the Contract Documents and for construction observation,
and the CLIENT waives any claims against the CONSULTANT
that may be in any way connected thereto.
16.2 In addition, the CLIENT agrees, to the fullest extent
permitted by law, to indemnify and hold harmless the
CONSULTANT, its officers, directors, employees and
subconsultants (collectively, CONSULTANT) against all
damages, liabilities or costs, including reasonable attorney’s
fees and defense costs, arising out of or in any way
connected with the performance of such services by other
persons or entities and from any and all claims arising from
modifications, clarifications, interpretations, adjustments or
changes made to the Contract Documents to reflect changed
field or other conditions, except for claims arising from the
sole negligence or willful misconduct of the CONSULTANT.
17. SCHEDULE
17.1 The CLIENT agrees that the CONSULTANT is not
responsible for damages arising directly or indirectly from
any delays for causes beyond the CONSULTANT's reasonable
control. For purposes of this Agreement, such causes
include, but are not limited to, strikes or other labor
disputes; severe weather disruptions or other natural
disasters, pandemics, or acts of God; fires, riots, war or
other emergencies; failure of any government agency to act
in timely manner; failure of performance by the CLIENT or
the CLIENT's contractors or consultants.
17.2 The CONSULTANT’s schedule includes reasonable
allowances for review and approval times required by the
CLIENT, performance of services by the CLIENT's
consultants, and review and approval times required by
public authorities having jurisdiction over the PROJECT. This
schedule shall be equitably adjusted as the PROJECT
progresses, allowing for changes in scope, character or size
of the PROJECT requested by the Client, or for delays or
other causes beyond the Consultant's reasonable control.
18. MISCELLANEOUS TERMS
18.1 GOVERNING LAW - The CLIENT and the CONSULTANT
agree that this Agreement and any legal actions concerning
its validity, interpretation and performance shall be governed
by the laws of the jurisdiction where the PROJECT is located,
without regard to any conflict of laws provisions, which may
apply the laws of other jurisdictions.
18.2 LENDERS' REQUIREMENTS- The CONSULTANT shall not
be required to execute any documents subsequent to the
signing of this Agreement that in any way might, in the sole
judgment of the CONSULTANT, increase the CONSULTANT's
contractual or legal obligations or risks, or adversely affect
the availability or cost of its professional or general liability
insurance.
18.3 CORPORATE PROTECTION - Notwithstanding anything
to the contrary contained herein, the CLIENT agrees that as
the CLIENT's sole and exclusive remedy, any claim, demand
or suit shall be directed and/or asserted only against the
CONSULTANT, a Massachusetts corporation, and not against
any of the CONSULTANT's individual employees, officers or
directors.
18.4 TITLES - The section headings used in this Agreement
are intended principally for convenience and shall not be
used in interpreting this Agreement or in determining any of
the rights or obligations of the parties to this Agreement.
18.5 Upon execution, these terms as incorporated into the
accompanying proposal represent the final intent of the
parties. Any modification, rescission, or waivers of these
terms shall only be effective and binding if agreed to in
writing by the parties.
P:\CONTRACTS & AGREEMENTS\PRIVATE\AGREE\TERMS&CONDITIONS\CURRENT TERMS AND
CONDITIONS\TERMSCONDITIONS-REV 04-2020 FINAL.DOC