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HomeMy WebLinkAboutResolution - 2004-R0534 - Contract For Environmental Assessment & Remediation Of Firing Range - 10/28/2004Resolution No. 2004-RO534 October 28, 2004 Item No. 38 RESOLUTION BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF LUBBOCK: THAT the Mayor of the City of Lubbock BE and is hereby authorized and directed to execute for and on behalf of the City of Lubbock, a Contract for environmental assessment & remediation of former police firing range, by and between the City of Lubbock and Shaw Environmental, Inc. of Irving, Texas, and related documents. Said Contract is attached hereto and incorporated in this resolution as if fully set forth herein and shall be included in the minutes of the City Council. Passed by the City Council this 28th day of October '2004. MARC V.06GAL, MAYOR ATTEST: Re cca Garza, City Secretary APPROVED AS TO CONTENT: v Victor Ki an, Purchasing Manager APPROVED AS TO FORM: Donald G. VandWer Attorney of Counsel ke/ccdocs/res-Contract-Shaw Environmental, Inc. October 18, 2004 Resolution No. 2004-RO534 October 28, 2004 Item No. 38 SHAW ENVIRONMENTAL, INC. SERVICES AGREEMENT (Single Order) This Agreement by and between SHAW ENVIRONMENTAL, INC., a Louisiana corporation ("SEI"), and the undersigned client ("CLIENT") sets forth the terms and conditions pursuant to which SEI will provide services (the "Services") to CLIENT. 1. Compensation CLIENT agrees to compensate SEI in accordance with SEI's published rate schedules in effect on the date when the Services are performed. A copy of the schedule currently in effect is attached as Exhibit 1. SEI's rate schedules are revised periodically. SEI will notify CLIENT of any such revisions and the effective date thereof which shall not be less than thirty (30) days after receipt of such notice. As to those Services for which no rate schedule exists, SEI shall be compensated on a mutually agreed time and materials basis as set forth in the Order (as defined in Section 2) for such Services. 2. Services The Services to be performed (including the scope of the Services, the time schedule, compensation and any other special terms) shall be as and limited to those stated in Exhibit 2 attached hereto (" the Order") 3. Payment Unless otherwise agreed to in writing, invoices will be submitted once a month. Invoices shall be paid in U.S. Dollars in the manner requested by SEI and are due upon receipt. Invoices not paid within thirty (30) days after the date thereof shall bear interest from the date thereof at the rate of one and one-half (I-1/2) percent per month or the maximum rate permissible by law, whichever is less, except that disputed amounts will not be subject to such interest charges. 4. Termination Either Party may terminate this Agreement at any time, with or without cause, by written notice provided, however, that CLIENT shall compensate SEI for all Services performed prior to SEI's actual receipt of notice and all of SEI's costs and expenses incurred prior to and/or as a result of the termination. 5. Independent Contractor SEI shall be fully independent in performing the Services and shall not act as an agent or employee of CLIENT. SEI shall be responsible for the transportation, treatment, and disposal of any hazardous materials or waste, provided, however, that CLIENT shall be responsible for and shall C 2003 Shaw Environmental, Inc. All rights reserved.) select the transportation, treatment, and disposal method and contractor. Subject to the terms and conditions hereof, SEI shall be responsible for its employees, subcontractors, and agents and for their compensation, benefits, contributions, and taxes, if any. 6. Taxes, Fees, and Other Charges The CLIENT shall pay all conveyance, transfer and recording fees and taxes, if any, imposed on any transfer of or construction on property contemplated by this Agreement, all hazardous, mixed, or radioactive waste disposal fees and taxes, and all sales, use, value added, gross receipts, franchise and like taxes, and tariffs and duties, applicable to the transactions contemplated by this Agreement. 7. Documentation, Records, Audit All records and original documents are and shall remain the property of CLIENT. All documents, records, data, laboratory or field equipment computerized data files, computer models or other information supplied to SEI by CLIENT and/or CLIENT's agents, employees, directors, officers, shareholders, or representatives shall remain the property of CLIENT and shall be returned to CLIENT upon completion of any work or service provided hereunder. SEI shall be permitted to retain a copy of such information for archival purposes. If requested by CLIENT, SEI shall provide CLIENT with copies of all documents which it is required to file or maintain under any federal, state, or local law naming or obligating the CLIENT, including, without limitation, any hazardous waste manifests relating to the Services. CLIENT shall have the right, at its expense, to inspect and audit SEI's records and accounts covering charges hereunder at all reasonable times during the course of the Services for each particular Order and for a period of one (I ) year after the substantial completion thereof; provided, however, that the purpose of such audit shall be only for verification of such charges and that SEI shall not be required to keep records of or provide access to those of its costs covered by a fixed price, fixed unit rates or which are expressed in terms of percentages of other costs. Upon completion of such audit, the results shall be presented to SEI. To the extent that the audit indicates that SEI has not been adequately compensated by CLIENT, CLIENT shall pay SEI any compensation due as shown by the audit. Alternatively, to the extent that any audit indicates that the total amount of compensation paid by CLIENT to SEI exceeded the actual amount due, SEI shall return such excess compensation to CLIENT. SEI 1 �� CLIENT_ L ""' 8. \ Risks and Allocation CLIE hereby acknowledges, understands and agrees that: (1) there are risks inherent to environmental investigate ,analysis, management, remediation, and removal, m y of which cannot be ascertained o anticipated pre to or during the course of the Services for example, s piing activities (e.g., borings) an excavation trench may spread contaminants through geologic formation despite the use of accepted professional standards, 2) due to the inherently limited nature and amount the data resulting from environmental investigatio ethods, complete analysis o conditions is not always ossible, and, therefore; conditions frequently vary fro those anticipated earlier; for example, borings in on location may miss contaminants only a few feet awa and (3) technology; methods, accepted professional Stan ds as well as la and policy, are undefined and/or cons tly changing an evolving. In light of all of the foregoing d SEI's lack o responsibility for creating the conditions equiring th Services, as a material inducement to and con eration fo SEI's agreement to perform the Services on the erms an at the price herein provided for, IENT SPECIFICALLY AGREES THAT SETS LIAB ITY SHALL BE STRICTLY LIMITED AS AND O THOSE CAUSES AND AMOUNTS PROVIDED SECTIONS 8 THROUGH 14 OF THIS AGREEMEN OR TO THE MAXIMUM EXTENT OTHERWISE PERMITTED BY LAW. 9. SEI Warranties, Representations and Covenants a. Professional Standards Warranties: I warrants, represents, and covenants that: (1) SEI h the capability, experience, and means required to perf the Services; (2) such Services will be perfo d using personnel, equipment, and material qualif d and/or suitable therefor; and (3) within the limits escribed by CLIENT, SEI will perform the Services i a diligent and workmanlike manner consistent wi (i) accepted professional practices and standar for nationally recognized firms engaged in similar ork, as in effect at the time the Services are perfo d, and (ii) CLIENT's reasonable rules, standards nd specifications as communicated to SEI prior beginning the Services under the Order. b. Other SEI Warr ties: SEI warrants, represents, and covenants that: (1 SEI will perform the Services in compliance with (i) pplicable federal, state, and local taws, regulations and ordinances as in effect and construed at the me the Services are performed and (ii) CLIENT's rea nable rules as communicated prior to beginning S ices under each Order issued pursuant to this ed ent; (2) SEI shall utilize the licensed or permitte treatment, storage, or disposal facility or faciliti designated by CLIENT; (3) with respect to any con cts, purchase orders or related third party service ag ments relating to the off-site transportation, storage, 2003 Shaw Environmental, Inc. r d m f w d f e r d protection of CLIENT, demand from all vendors d contractors from which SEI procures mach' ery, equipment, materials or services guarantees rea nably acceptable to CLIENT which shall be made av ]able to CLIENT to the full extent of the terms thereo provided, however, that SEI's liability with respect to me shall be limited to procuring guarantees (but on] to the extent available) from such vendors and ontractors and rendering reasonable assistance to LIENT for the purpose of enforcing the same; (4) I shall use its best efforts to avoid infringements, as et forth in Section 17 hereof; and (S) SEI shall maint n confidentiality, as set forth in Section 18 hereof. C. Remedies: If CLIE alleges that SEI has breached a warranty set forth in s Section 8, then CLIENT shall promptly notify SEI ' writing and, before taking any further action ag ' st SEI, shall afford SEI the opportunity, at I's cost, to either re -perform any defective Servic according to the original scope of work therefor (as dified up to the time of breach), or to commence a d diligently pursue the cure of such breach, in which ent such re -performance or cure shall be CLIENT' sole and exclusive remedy therefor (except as provid in the next sentence). CLIENT's sole and excl ive remedy for the breach of any of the above w anties which breach damages property (other than the rvices themselves) or injures persons, shall be as rovided in Section 10 hereof. d. SEI's Duties: SEI shall use its best efforts to timely provide Services for emergency response based on its udgment of the nature and extent of each emergency and s capability to respond to that emergency. EX PT AS SET FORTH IN SECTION 9 ABOVE, SEI M%MAY GUARANTEE OF RESULTS OR WEXPRESS OR IMPLIED, IN FACT OR BETHER OF MERCHANTABILITY OR FIA PARTICULAR PURPOSE OR OAS TO ANY OF THE GOODS OR OALS FURNISHED OR SERVICES WB ERFORMED PURSUANT TO THEN 10. Indemnity Subject to the limitations Sections 9, 10, and 11 hereof, SEI shall defend, end ify and hold harmless (and does hereby release) IENT (including its officers, directors, shareholders, a ployees, and agents) from and against any and all Losse liabilities, claims, demands, damages, fines and pena ies, and related expenses (including reasonable legal f s and costs) to the extent (and only to the extent) re Iting from, attributable to, or arising out of: a. Breach by SEI of any warranties b. SEI's negligence or intentional misconduc%in performing Services; or 2Any pollution, contamination, or release of dons or radioactive materials, including all adverse health effects thereof to the extent such pollution, contain ation or release results directly from SEI's neali¢enc or intentional misconduct. 11. CLIENTS Warranties, Representations, and CLIENT warrants, ?gpresents, and covenants as follows: a. Responsibility fo Materials, Sites: CLIENT has responsibility for the mat ials and sites with respect to which CLIENT may reques ervices. There will exist no legal impediment or res in pp,, Cable to CLIENT, the materials, the site or otherwis which may adversely affect the ability of SEI to pe the Services. As between SEI and CLIENT, title a d risk of loss with respect to all materials shall remain Nth CLIENT, who shall be considered the generator of su materials, and CLIENT shall execute all manifests as tgenerator of such materials. b. Characteristics of Materials: Any mate ' Is with respect to which SEI performs Services either\ithe have the composition and characteristics describeOrder, in the manifest or other documents given to(2) if nonconforming, will not (i) increase the performing the Services; (ii) increase the nature or extent of the hazard or risk undertaken by SEI in agreeing to perform the Services; and (iii) be such that the facilities designated can no longer be legally used or the Services legally performed. CLIENT will provide SEI with all relevant inf reasonably available to it concerning, without li the composition, quantity, toxicity, or pc hazardous properties of any materials known or to be present at any site for which Services are yl (SEI shall make its own determinatio as to the precautions appropriatefor any materiaV, but SEI shall accept CLIENTS determination in a gi n situation that a material is hazardous and shall h lenvoit accordingly, whether or not the particular mate ' ilved meets the definition of hazardous waste un r applicable laws and regulations.) SEI shall notify CLIENT w" in a reasonable time of the discovery of material in b ach of the warranties set forth in this Section 11. In event of such breach, CLIENT shall be legally res sible for arranging for a lawful manner of disposit n of such material, and any such disposition will p perly protect SEI from the increased hazard, cost or ' referred to above. CLIENT shall fully compensate S for all Services performed in connection with the dis sition or return of material pursuant to this Section 1 C. Vilaracteristics of Site: CLIENT will provide SEI with ,All relevant information available to it concerning the Shaw Environmental, Inc. limitation, any hazards that may be present, summa es " n and assessments of the site's past and present comp ce status, and the status of any filed or pending ju ' ial or administrative action concerning the site. d. CLIENT'S Duties: CLIENT shall, its cost, at such times as may be required by SEI for a successful, timely, and expeditious completion of S ces: (1) Provide unimp d and timely access to the site, any necessary third- property, and an adequate area or areas for S s site office facilities, equipment storage, and employ a parking and shall furnish all construction utilities nec sary for the Services; (2) Make a necessary notifications, file all reports/takc SEI th any necessary governmental allocationitie and obtain all permits and licenses required tut in CLIENTs name which are necessary rvices;(Obtain any process and other transfer of technologs which are required for the Services, except whlicenses are identified in an Order as the responf SEI. e.anges: If SEI encounters any unforeseen, diff, ' g or changed conditions or circumstances, the time for ompletion of such Services shall be extended, and SEI s ll receive an equitable compensation adjustment if SEI curs additional costs or additional Services are required. EXCEPT AS SET FORTH ABOVE, CLIENT MAKES NO WARRANTY, EXPRESS OR IMPLIED, IN FACT R BY LAW, WHETHER OF MERCHANTABILITY, F ESS FOR ANY PARTICULAR PURPOSE OR OThiERWISE, CONCERNING ANY MATERIALS WIT SPECT TO WHICH CLIENT MAY REQUEST 12. Inde*ity by CLIENT Subject to the imitations of Section 13 hereof, any indemnity by SE\legalfe ot apply to, and CLIENT shall defend, indemnifold harmless (and does hereby release) SEI (inclparent, subsidiary and affiliated companies and tern, directors, employees, and agents) from and ny and all liabilities, claims, demands, losses, , es and penalties, and related expenses (includife and reasonable costs of investigation), to t resu 'ng from, attributable to, or arising out of- a. f a. Any action or inaction of CLIEA or any third party or compliance by SEI with directives is ed by CLIENT; b. Any breach by CLIENT of any warNrities, other provisions hereof, or of laws, regulations, or dinances; C. Any hazardous material environmental em c response service except to the extent such losses, daini fines, penalties, or expenses result from negligenc willful misconduct by SEI after arrival at the scene to SEI to avoid the incident; d. Any allegation that SEI is an owner, oper in ager, or person in charge of all or any portion of a or a anged for the treatment, transportation, or dis of, o owned or possessed, or chose the treatment, st r or dis osal site for, any material, with respect to Servic are provided; or e. An pollution, contamination, or r ease of hazardou or radioactive materials, including 1l adverse health effe is thereof, except to the extent suO pollution, contaminat n or release results from SErsgligence or willful misc nduct. 13. A party entitle to indemnity under ction 10 or 12 hereof shall be th "Indemnitee" and th party obligated to provide such inde ity shall be the ' ndemniton" The Indemnitee shall p omptly provide tten notice to the Indemnitor upon th earlier of (a) ny assertion of any Claim (as hereafter d med) falling ithin the Indemnitor s duties to indemnify o ) learning f facts (other than the knowledge SEI gains rough p orming the Services) which may give rise to duty by ndemnitor to defend, to indemnify, or hold harm ss. In a event an Indemnitor is required, during the curse of an action or other proceeding, to pay any su p rsuant to Section 10 or 12 hereof which results from, i ttributable to or arises out of any cause other than one r which the Indemnitor is required to defend, inde 'fy or hold harmless, the Indemnitor shall be a itle to recover from the Indemnitee and others t the xtent such sums are in excess of those sums w ch the demnitor is required to pay pursuant to Sectio 10 or 12, as the case may be. 14. LIMITATIONIOF LIABILITY NOTWITHSTANI#NG ANY O ER PROVISION CONTAINED IN HIS AGREEM T: A. IN NO EV NT SHALL SEI BE SPONSIBLE FOR ANY IN DENTAL, INDIRE\ED CT, OR CONSEQUE IAL LOSSES,MAGES (INCLUDINLOSS OF PROFITS), LTIES OR EXPENSES CURBED BY CLIENT Y THIRD PARTY AS RESULT OF SETS PERNCE OR NONPERF RMANCE OF THIS AGRT OR BY APPLIC ION OR USE OF REPORTSDOR OTHER ERVICES PERFORMED; R, SEI SHALL AVE NO LIABILITY FORCTION INCLU ING DISCLOSURE OF IT10N WHE SEI BELIEVES IN GOODHAT SUC ACTION IS REQUIRED BY PS] AL ST ARDS OF CONDUCT HE P SERVATION OF PUBLIC HEALTE R W LFARE, OR BY LAW; AND FOR ALL LOSSES, DAMAGES, LIABILITIES O 2003 Shaw Environmental, Inc. All rights reserved.) GLIGENCE, INCLUDING ERRORS, OMISSIO S OR THER ACTS, OR WILLFUL MISCONDU , OR BAS IN CONTRACT, WARRANTY (INCL ING ANY OSTS AND FEES FOR REP IRING, REPLA GOR RE -PERFORMING SER CES OR CURING BREACH HEREOF), OR OR ANY OTHER CA SE OF ACTION (INDIV UALLY, A "CLAIM"; COLLECTIVELY, "CL IMS"), SEI'S LIABILITY, IN UDING THE LI BILITY OF ITS INSURERS, EMP OYEES, AGE TS, DIRECTORS, AND OFFICERS A ALL O ER PERSONS FOR WHOM SEI IS LEG LLY SPONSIBLE, SHALL NOT, TO THE MAXI TENT PERMITTED BY LAW, EXCEED IN AXE AGGREGATE WITH RESPECT TO AL AIMS ARISING OUT OF OR RELATED TO THI AG EMENT THE LESSER OF THE TOTAL A OUNT F COMPENSATION PAID TO SEI H DER R ONE MILLION DOLLARS ($1,00 ,000); AND C. ALL C IMS AGAINST SEI, S INSURERS, EMPLOYE , AGENTS, DIRECTORS OFFICERS AND AL OTHER PERSONS FOR W M SEI IS LEGAL LIABLE, SHALL BE DEEMED WAIVED /BRISUIT S AND TO THE EXTENT CLIENT HALL THEREFOR AGAINST SEI WITH ONE EAR AFTER SEI'S SU13STAN AL ETION OF THE PARTICULAR SERVI S 15. Insurance SEI is presently protected by Worker's Compensation Insurance as required by applicable law and by General Liability and Automobile Liability Insurance (in the amount of $1,000,000 combined single limit) for bodily injury and property damage. Insurance certificates will be furnished on request. If the CLIENT requires further insurance coverage, SEI will endeavor to obtain said coverage, and CLIENT shall be charged therefor. The certificates shall specify the dates when such insurance expires and shall provide further that CLIENT shall be given not less than thirty (30) days written notice before cancellation of or any material change in such insurance. SEI and its insurer(s) hereby reserve all rights of subrogation. 116. Patents and Inventions CLIENT may use any final reports of findings, feasibility studies, industrial hygiene and safety, engineering work or other work performed or prepared by SEI under this Agreement for its internal purposes in connection with the project and/or location for which such work was prepared, but SEI reserves all other rights with respect to the same and all other documents produced in performing the Services. All reports will be delivered subject to SEI's then current limitations. CLIENT shall obtain prior written consent from SEI for any other use, distribution, or publication of such reports or work results. SE�,✓'^ CLIENT-j6--- CLIENT shall retain all right and title to all patentable and unpatentable inventions, including confidential know-how, developed by CLIENT and/or by SEI hereunder in CLIENT'S field of expertise. SEI shall retain all right and title to all patentable and unpatentable inventions, including confidential know-how, developed by SEI hereunder in SEI's field of expertise. SEI shall grant to CLIENT a royalty -free, nonexclusive and nontransferable license under any such developed inventions and know-how to use the same in any of CLIENT'S facilities. 17. Intellectual Property SEI shall use its best efforts to provide Services which do not infringe on any valid patent, copyright, trademark or involve the use of any confidential information that is the property of others unless SEI is licensed or otherwise has the right to use and dispose thereof. SEI shall also use its best efforts to inform CLIENT of any infringement that may be reasonably expected to result from the use of the Services. However, the best efforts of SEI shall not include a duty to conduct and/or prepare a patent or other search and/or opinion. The liability of SEI under this Agreement in any legal proceeding where CLIENT is made a defendant for actual infringement based upon a Service provided by SEI shall be as provided in Section 9 and shall exclude infringement which is related to manufacturing processes of CLIENT and any consequential damages. 18. Confidentiality In the course of performing Services, to the extent that CLIENT discloses to SEI, or SEI otherwise acquires, business or technical information that CLIENT clearly marks as confidential or proprietary, SEI will receive and maintain in confidence such information and will exercise all reasonable efforts to avoid the disclosure of such information to others. SEI will not use such information for any purpose other than the performance of Services to CLIENT. CLIENT shall treat as confidential all information and data furnished to it by SEI in connection with this Agreement including, but not limited to, SEI's technology, formulae, procedures, processes, methods, trade secrets, ideas, inventions, and/or computer programs; and CLIENT shall not disclose such information to any third party, except to a related company which has first agreed in writing with SEI to an obligation of confidentiality identical to the obligations of CLIENT as set forth in this Section 18. However, nothing herein is meant to prevent nor shall it be interpreted as preventing either SEI or CLIENT from disclosing and/or using said information or data (i) when the information or data is actually known to the receiving party before being obtained or derived from the transmitting party; or (ii) when the information or data is generally available to the public without the receiving © 2003 Shaw Environmental, Inc. All rights reserved.) party's fault at any time before or after it is acquired from the transmitting party; or (iii) where the information or data is obtained or acquired in good faith at any time by the receiving party from a third party who has the same in good faith and who is not under any obligation to the transmitting party in respect thereof; or (iv) where a written release is obtained by the receiving party from the transmitting party; or (v) five (5) years from the date of receipt of the information; or (vi) when permitted by this Agreement; or (vii) when required by process of law; provided, however, upon service of such process, the recipient thereof shall notify the other party and afford it an opportunity to resist such process. 19. Force Majeure Neither party shall be deemed in default of this Agreement or any order hereunder to the extent that any delay or failure in the performance of its obligations (other than the payment of money) results, without its fault or negligence, from any cause beyond its reasonable control, such as acts of God, acts of civil or military authority, embargoes, epidemics, war, riots, insurrections, fires, explosions, earthquakes, floods, adverse weather conditions, strikes, or lockouts, and changes in laws, statutes, regulations or ordinances. 20. Affirmative Action Unless this Agreement is exempted by law, SEI shall comply with Executive Order 11246, the Rehabilitation Act of 1973, the Vietnam Era Veterans' Readjustment Assistance Act of 1974, and the rules and regulations issued pursuant to said Order and Acts, as amended and all of which are incorporated herein by reference. Upon execution of this Agreement and upon request, SEI shall furnish to CLIENT an executed Certificate of Nonsegregated Facilities. 21. Assignment Neither party shall assign any right or delegate any duty under this Agreement without the prior written consent of the other. Notwithstanding the foregoing, any subsidiary or affiliate of The Shaw Group Inc. or other persons SEI designates may perform some or all of the Services, and SEI may upon notice to the CLIENT assign, pledge or otherwise hypothecate the cash proceeds and accounts receivable resulting from the performance of anyServices or sale of any goods pursuant to this Agreement. Subject to the foregoing, this Agreement shall inure to the benefit of, and be binding upon, the parties' respective successors and assigns. 22. Attorney Fees To the maximum extent permitted by law, in the event either party shall be successful in any suit for damages for breach of this Agreement, including nonpayment of invoices, or to enforce this Agreement or to enjoin the other party from violating this Agreement, the prevailing party shall be entitled to recover as damages its reasonable SF -15h= CLIENT legal fees and expenses for bringing and maintaining any such action. 23. Governing Law This Agreement shall be governed by and interpreted pursuant to the rules of the state where the services are to be performed. 24. Entire Agreement The terms and conditions set forth herein constitute the entire understanding of the parties relating to the provision of Services by SET to CLIENT and shall be deemed incorporated in all Orders unless otherwise agreed in writing by SEI. In the event of conflict, this Agreement shall govern. Any modifications or revision of any provisions hereof or any additional provisions contained in any purchase order, acknowledgement or other form of the CLIENT is hereby expressly objected to by SEI and shall not operate to modify the Agreement, and SEI's acceptance of an Order is expressly conditioned on and limited to assent to the provisions hereof. CLIENT may accept these terms and conditions by execution of this Agreement or by authorizing SEI to begin work. This Agreement may be amended only by a written instrument signed by both parties. 25. Waiver of Terms and Conditions The failure of SEI or CLIENT 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 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 failure to enforce had occurred. 26. Severability and Survival Each provision of this Agreement is severable from the others. Should any provision of this Agreement be found invalid or unenforceable, such provision shall be ineffective only to the extent required by law, without invalidating the remainder of such provision or the remainder of this Agreement. Further, to the extent permitted by law, any provision found invalid or unenforceable shall be deemed automatically redrawn to the extent necessary to render it valid and enforceable consistent with the parties' intent. The terms and conditions hereof shall survive the termination of this Agreement. IN WITNESS WHEREOF, CLIENT and SEI agree to the foregoing (INCLUDING THE LIMITATIONS ON LIABILITY IN SECTIONS 8 - 14) and have caused this © 2003 Shaw Environmental, Inc. All rights reserved.) Agreement to be executed by their respective duly authorized representatives as of the date set forth below. Executed this day of , 20_. ATTACHMENTS: Exhibit 1 - Rate Schedules Exhibit 2 - Scope of Work SE - CLIENT 4-_ NOTE: The following clauses (8 through 14) replace clauses 8 through 14, as deleted from Shaw Environmental, Inc. Services Agreement (Single Order). In addition, also enclosed is a signature page which replaces the signature blocks deleted as well. PROPERTY OWNER RELEASE AND COVENANT 8. City does hereby agree to permit the Shaw to enter the property for the purpose of carrying out the activities set forth in this agreement. 9. City releases for itself, its personal representatives, successors and assigns, Shaw, its officers, agents, employees and/or representatives from any and all loss, liability, damage or costs, relating to any claim, of any nature whatsoever, incurred or arising in any way, manner or form, as a result of, or arising from injury, death or property damage as a result of city's activities as set forth in this agreement, including but not limited to, any claim, loss, liability, damage or costs of any nature whatsoever, as a result of, or arising from, any negligent act or omission resulting from city's activities contemplated by this agreement. 10. Shaw releases for itself, its personal representatives, successors and assigns, the city of Lubbock, its officers, agents, employees and/or representatives from any and all loss, liability, damage or costs, relating to any claim, of any nature whatsoever, incurred or arising in any way, manner or form, as a result of, or arising from injury, death or property damage as a result of Shaw's activities as set forth in this agreement, including but not limited to, any claim, loss, liability, damage or costs of any nature whatsoever, as a result of, or arising from, any negligent act or omission resulting from Shaw's activities contemplated by this agreement. 11. Shaw does hereby expressly agree to hold harmless and indemnify the city of Lubbock, its officers, agents, employees, or representatives from any loss, liability, damage or costs relating to any claim, lawsuit or other matter of any kind or character arising out of, or in any matter related to, the activities contemplated by this release, but not limited to, any loss, liability, damage or costs incurred to the extent of any negligent act or omission resulting from the activities contemplated by this release. Shaw hereby further agrees to indemnify and hold harmless the city from and against any and all claims, demands, or causes of action and the reasonable and necessary costs, including attorney's fees, incurred in the defense of any such claim that any person who claims an ownership in the claimed rights, interests, demands, actions, or causes of action, obligations, or any other matter contemplated by this agreement. 12. Shaw hereby assumes full responsibility for the risk of property damages resulting from Shaw's activities on the Property as contemplated by this Agreement. 13. Shaw expressly agrees that this release, waiver, and indemnity agreement is intended to be as broad and inclusive as permitted by the laws of the State of Texas and that, if any portion of this form is held invalid, it is agreed that the balance shall, notwithstanding, continue in full force and effect. 14. Shaw further stipulates and agrees that it will pay to the City reasonable attorney's fees incurred in defending any suit brought by Owner regarding the matters contemplated by the work performed under this agreement. S8 Jam= Client EXECUTED this 28th day of October , 2004. CITY OF LUBBOCK M ATTEST: Rebecca Garza, City Secretary APPROVED AS TO CONTENT: aA D aMA40-" Dan Dennison Environmental Compliance Manager APPROVED AS TO FORM: ohn M. Knight Assistant City Attorney as CityAnJohniSignatureBlock SHAW ENVIRONMENTAL, INC. f BY:<� Title: Date: 5�Z7 /el S�t"elient Resolution No. 2004-RO534 October 28, 2004 Item No. 38 Effective January 1, 2004 SHAW ENVIRONMENTAL, INC. 2004 SCHEDULE OF CHARGES Professional Rate Per Hour Senior Managers/Technical Review ......................................................(billing code L106) $105/hr Senior Technical Staff...........................................................................(billing code L094) $ 98/hr H&S/QA-QC Specialist..........................................................................(billing code L092) $ 98/hr Technical Staff.......................................................................................(billing code L069) $ 75/hr Technical Field Technicians.................................................:................................(billing codes L052) $ 67/hr Drafter/CADD Operators.......................................................................(billing codes L050) $ 67/hr Project Assistants.-.. . ..... ......................... .......................................... (billing codes L044) $ 56/hr Field Labor Remediation Superintendent.......................................................:.........(billing codes L095) $ 70/hr Equipment Operator..............................................................................(billing codes L042) $ 48/hr Environmental Laborer..........................................................................(billing codes L021) $ 35/hr Nontechnical Office Services ....... ............... -........................ ................... ................... (billing codes L020) $ 41/hr Depositions and expert witness testimony, including preparation time, will be charged at 150% of the above rates. Travel time will be charged in accordance with the above rates, up to a maximum of 8 hours per day. OUTSIDE SERVICES Charges for special outside services, equipment, and facilities not furnished directly by Shaw will be billed at cost plus 10%. Such charges may include but are not limited to the following services: Printing and photographic reproduction Rental and operation of drilling equipment Rented vehicles Rented field equipment Transportation on public carriers Shipping charges Subconsultants Meals and lodging Special fees, permits, insurance, etc. Consumable materials DIRECT CHARGES Reproduction - black and white, per sheet (non-routine).............................................................$ 0.15 Reproduction - color, per sheet................................................................................................... $ 1.25 Autoper mile...............................................................................................................................$ 0.50 Pickuptruck per mile...................................................................................................................$ 0.50 SUPPLEMENTAL SCHEDULES OF CHARGES (Schedules available upon request) Rate Changes Schedule of Charges and Standard Equipment Rates are subject to change without notice. Payment Monthly invoices are to be paid within 30 days from invoice date. Interest on late payments will be charged at a rate of 20% per annum. Resolution No. 2004-RO534 EXHIBIT 2 Scope of Professional Services Summary Remediation of City of Lubbock Firing Ranpe Task Summary Note: The work area is considered to be the former police firing range at 615 Municipal drive, including all range features, berms, and surrounding improvements that may be impacted as a result of range activities, but generally assumed to be locations within 50 feet of the range proper. 1. Conduct Historical Review — Includes but not limited to interviewing of site personnel, EDR database search, gather date from nearby monitoring wells 2. Regulatory Interface — Includes all regulatory research and communication with regulatory personnel not otherwise specified in other tasks. 3. Site Survey — Conduct a boundary and topographic survey of firing range and adjacent facilities 4. Field assessment — Includes obtaining field media samples and performing geotechnical and chemical analysis on samples as needed to determine Tier 2 critical protective concentration limits (PCLs), determine volumes of soil to be removed, and to determine waste characteristics of soil to be removed. 5. Review all laboratory data. 6. Complete Affected Property Assessment Report (APAR) — Complete APAR for area delineated in the scope of work, not the entire municipal facility 7. Determine Tier 2 TRRP Critical PCLs. 8. Determine volumes of soil to be removed. 9. Determine general waste characteristics of soil to be removed. 10. Develop plans and specifications for solicitation by the City of Lubbock. 11. Assist the City of Lubbock in remediation bid advertisement. 12. Assist the City of Lubbock in developing proposal evaluation criteria. 13. Assist the City of Lubbock in evaluation of remediation proposals. 14. Attend a remediation pre-bid conference and resolve all technical questions arising thereto. 15. Prepare a detailed remediation estimate. 16. Provide construction oversight of remediation contractor, including but not limited to daily observation and recording of filed activities, review of pay applications, review of submittals, collection of project documents during the course of the work, and attendance at a pre -construction conference. 17. Compile project record documentation. 18. Complete a Remedial Action Completion Report (RACR). SEIient