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HomeMy WebLinkAboutResolution - 5032 - Agreements- Compliance Services Group Inc & Enprotec Inc- Oil Spill Remediation - 11/16/1995Resolution No. 5032 November 16, 1995 Item #17 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 Environmental Engineering Services Agreements with Compliance Services Group, Inc. and Enprotec, Inc., attached hereto and which shall be spread upon the minutes of the Council and as spread upon the minutes of this Council shall constitute and be a part of this Resolution as if fully copied herein in detail. Passed by the City Council this ATTEST: etty John n, City Secretary APPROVED, AS TO CONTENT: APPROVED AS TO FORM: Dohffid G. Attorney DGV js/AG-EES.RES ccdocs/November 1, 1995 Resolution No. 5032 November 16, 1995 CONTRACT BETWEEN Item 417 THE CITY OF LUBBOCK AND ENPROTEC, INC. FOR ENVIRONMENTAL ENGINEERING SERVICES This Contract, effective this 9th day of November, 1995, between the CITY OF LUBBOCK, TEXAS, a Home -Rule Municipal Corporation located at 1625 13th Street, Lubbock, TX 79401 (hereinafter referred to as "City") and ENPROTEC, INC., a Texas Corporation located at 6310 Genoa Avenue, Suite E, Lubbock, TX 79424 (hereinafter referred to as "ENPROTEC"). ARTICLE I. SERVICES 1.1 ENPROTEC agrees to perform for City the environmental engineering services outlined in Exhibit A attached hereto and incorporated herein for all purposes. 1.2 The engineering services to be performed shall not be materially different from that referenced above, unless such modifications are reduced to writing and signed by authorized representatives of both City and ENPROTEC. It would be extremely expensive to conduct an investigation which would detect all material at the sites listed on attachment A or other City sites that may become a part of this Contract, or those which are presently, or in the future might be, considered hazardous. ENPROTEC cannot be held responsible for the failure of the investigation to detect the presence or quality of such materials. ARTICLE H. RECOGNITION OF RISK 2.1 City recognizes that environmental, geological and hydrogeological conditions can vary from those encountered at the time and locations where data are obtained by ENPROTEC, and that the limitation on available data may result in some level of uncertainty with respect to the interpretation of these conditions, despite the use of due professional care. ARTICLE III. LIABILITY 3.1 ENPROTEC represents that the engineering services shall be performed in a manner consistent with the level of care and skill ordinarily exercised by other environmental engineering firms under similar circumstances. No other representations to City, express or implied, and no warranty or guarantee, is included or intended in this contract, or in any report, opinion, document or otherwise. ARTICLE IV. INDEMNIFICATION 4.1 ENPROTEC's liability shall be limited to injury or loss caused by the negligence of ENPROTEC, its subcontractors, and/or agents hereunder. ENPROTEC has neither created nor contributed to the creation or existence of any hazardous, radioactive, toxic, irritant, pollutant, or otherwise dangerous substance or condition at the Site, and its compensation hereunder is in no way commensurate with the potential risk of injury or loss that may be caused by exposure to such substances or conditions. 4.2 If neither ENPROTEC nor City are negligent, and the loss is caused by a third party, or third parties, and is not contributed to by either party to this Contract, then City shall indemnify, defend and hold harmless ENPROTEC from and against any such loss. 4.3 The City will locate all underground utilities that traverse the Site. Prior to any invasive field operations, all known utility companies will be contacted and asked to locate and mark out any and all of their lines that pass through the Site. Notwithstanding any attempts by ENPROTEC to locate existing Site utilities and tanks, it shall be the ultimate responsibility of the City to locate all underground utilities and tanks prior to ENPROTEC's undertaking any invasive field operations and the City shall assume all liability resulting from damage to such utilities or tanks resulting from City's failure to locate same. The City shall review all locations prior to the start-up of invasive field. operations and direct that they be relocated if a conflict exists with any underground utilities or tanks. 4.4 ENPROTEC agrees to indemnify and hold City (including its officers, directors, employees, subcontractors and agents) harmless from and against any and all liabilities (including any strict liability or other liability without fault asserted against City), damages, fires, penalties, costs, claims, demands and expenses (including costs of defense, settlement and reasonable attorneys' fees) to the extent caused by any negligent act(s) or omissions(s), gross negligence, willful. misconduct or breach of contract by ENPROTEC, its agents, employees or subcontractors in the performance of this Contract including any failure to comply with any pertinent federal, state or local law, statute, regulation, rule, ordinance or government directive. 4.5 City agrees to indemnify and hold ENPROTEC (including its officers, directors, employees, subcontractors and agents) harmless from and against any and all liabilities (including any strict liability or other liability without fault asserted against ENPROTEC), damages, fines, penalties, costs, claims, demands and expenses (including costs of defense, settlement and reasonable attorneys' fees) to the extent caused by any negligent act(s) or ornission(s), gross negligence, willful misconduct or breach of contract by City, its agents, employees, or subcontractors in the performance of this Contract, including any failure to comply with any pertinent federal, state or local law, statute, regulation, rule, ordinance or government directive. 4.6 Where acts or omissions of the nature referred to above by both ENPROTEC and City (including their respective officers, directors, employees, subcontractors or agents) have caused any liabilities, damages, fines, penalties, costs, claims, demands and expenses, whether or not third party's acts or omissions also were causal, ENPROTEC and City shall contribute to their common liability (including the costs associated with defense, settlement and reasonable attorneys' fees) based upon the relative degree of fault of each. In any case, the parties shall promptly meet to discuss cooperation, including cost sharing. ARTICLE V. SAMPLES 5.1 ENPROTEC shall preserve samples obtained from the Site as it deems necessary for the project, but for not longer than forty-five (45) days after the issuance of any document that includes the data obtained from those samples, unless other arrangements are mutually agreed upon in writing. At any time, ENPROTEC can request, in writing, that City remove samples. Within ten (10) days of ENPROTEC's request, City shall comply with, pay and be responsible for the removal and lawful disposal of samples, unless other arrangements are mutually agreed upon in writing. ARTICLE VI. INFORMATION FROM CITY 6.1 Prior to the commencement of services, and continuing thereafter, City shall notify ENPROTEC of any known possible health or safety hazard existing on or near the Site where services are to be or are being performed by ENPROTEC or its subcontractors, with particular reference to hazardous substances or conditions. If hazardous substances or conditions are discovered by ENPROTEC during the performance of its services that had not been disclosed to ENPROTEC prior to signing the Contract, then, upon notification, City and ENPROTEC shall seek to determine the equitable adjustment to be made to this Contract. If the parties are unable to agree, the Contract will be terminated and ENPROTEC shall be paid for all charges and costs incurred up to and including the date of termination of the Contract. 6.2 City shall provide ENPROTEC with all relevant data and information in its possession relating to the Site and to the environmental, geological, and geotechnical conditions of the Site and surrounding area. City shall correctly show, on plans to be fin-nished to ENPROTEC, the known locations of subsurface structures, such as pipes, tanks, cables and utilities. If subsurface conditions are discovered by ENPROTEC during the performance of its services that had not been disclosed to ENPROTEC prior to signing the Contract, then, upon notification, City and ENPROTEC shall seek to determine the equitable adjustment to be made to this Contract. If the parties are unable to agree, the Contract will be terminated and ENPROTEC shall be paid for all charges and costs incurred up to and including the date of termination of the Contract. City shall provide ENPROTEC, in writing, all criteria, design and construction standards, and all other information relating to City's requirements for the project. City shall give ENPROTEC prompt written notice of any suspected defect in ENPROTEC's services. ARTICLE VII. BASIS AND AMOUNT OF COMPENSATION FOR ENGINEERING SERVICES 7.1 For engineering services as outlined in Exhibit A, payment shall be on the basis of work performed and shall be based on the rate structure as outlined in Exhibit B. Estimated costs are itemized in 3 Exhibit A. A scope of work and cost estimate shall be provided for each site prior to initiation of the work to be performed at the site. Work shall not begin at a site until the scope of work and cost estimates are approved in writing by an authorized representative of the City. All charges must be eligible for reimbursement by TNRCC unless expressly authorized in writing by the City of - Lubbock However, in event of an emergency situation, verbal approval may be given with follow- up authorization in writing as outlined above. ARTICLE VIII. TERMS OF PAYMENT/RELEASE OF LIENS 8.1 Unless otherwise stated, the engineering services as stated in Exhibit A or changes as agreed to in writing by both parties, ENPROTEC shall invoice City at the end of each month for all services performed under the engineering services during that month. 8.2 Terms of payment shall be net thirty (30) days after invoice date of a properly prepared and correct invoice by ENPROTEC. Payment shall be considered made when payment checks are mailed by City. ENPROTEC's invoice shall be accompanied by such records or other written proof as City deems adequate to verify the billings appearing therein and shall be in a form as may be prescribed by City. A service charge of one and one-half (1-112) percent per month, but in no event higher than the highest rate allowed by applicable law, on the unpaid balance will be assessed on past due accounts and balances carried over thirty (30) days. 8.3 ENPROTEC agrees to furnish City a complete "Release of Liens and Claims," if required, before final payment is made. If any lien is filed or remains unsatisfied after final payment, ENPROTEC shall discharge any lien and indemnify City for all costs incurred in discharging such lien. ARTICLE IX. TAXES 9.1 ENPROTEC assumes full responsibility for the payment of all federal and state taxes of whatever sort, social security and unemployment compensation taxes, withholding taxes, and all other taxes or charges applicable to ENPROTEC's actions, employees, facilities and materials for performing services hereunder or applicable to ENPROTEC's income hereunder. ARTICLE X. SITE AND LOCAL CONDITIONS 10.1 ENPROTEC has the right to examine the Site in order to become acquainted with local conditions and accepts conditions at the Site unless otherwise noted in writing to City. Any coordination or scheduling of work by City shall not relieve ENPROTEC from its responsibilities specified hereunder. 10.2 ENPROTEC shall keep on the site a competent supervisor and/or technician who shall be its authorized representative for all purposes under this Contract. 10.3 Necessary arrangements for access to the Site by ENPROTEC's employees will be made with City. City reserves the right to withhold, or to withdraw approval for, access to its premises of any person for any reason considered sufficient by City. ARTICLE XI. INSURANCE AND CERTIFICATIONS 11.1 ENPROTEC shall carry and maintain in force at all times relevant hereto, at ENPROTEC's expense, insurance of the type and of minimum coverage lirnits as follows: 1. Workers' Compensation - Statutory Employer's Liability - $500,000 per accident 2. Comprehensive General Liability, Bodily Injury and Property Damage including contractual liability in a combined single limit - $2,000,000 per occurrence Comprehensive Automotive Liability, Bodily Injury and Property Damage in a combined single limit - $2,000,000 per accident 4. Professional Liability Insurance, $1,000,000 per occurrence 11.2 Certificates of insurance in a form acceptable to City, evidencing the coverages required above, shall be made available to City upon request. Such certificates shall provide that the insurer will give City not less than ten (10) days' advance notice of any material changes in or cancellation of coverage. In the event any subcontractor is employed, with or without City consent, for the services covered in this Contract, then ENPROTEC assumes full responsibility to ensure that the subcontractor's services are covered by the same insurance limits as set forth herein. 11.3 ENPROTEC shall carry and maintain on staff at all times relevant hereto, at ENPROTEC's expense, the certification registrations of the type as follows: 1. A Registered Professional Engineer 2. A TNRCC Corrective Action Project Manager 3. 40 -hour OSHA Training as required by 29 CFR 1910.120 for all field personnel. ENPROT -C must maintain the Corrective Action Specialist Certification and maintain a general Quality Assurance/Quality Control and Health/Safety Program. ARTICLE XII. ASSIGNMENT AND SUBCONTRACTINGPTHIRD PARTY RIGHTS 12.1 The rights and obligations covered herein are personal to each party hereto and not to any third parry, and for this reason neither this Contract nor any contract hereunder shall be assignable by either party in whole or in part; nor shall ENPROTEC subcontract any of its obligations under this Contract or a contract without the prior consent of City of Lubbock's Purchasing Manager or his authorized representative. 5 12.2 Use of third party contractors shall be in accordance with the City's applicable purchasing policies and all known state and federal requirements. ARTICLE M. NONDISCLOSURE 13.1 If so requested by City in writing, ENPROTEC agrees not to disclose to others (a) the fact that City has purchased or plans to purchase Engineering services from ENPROTEC or (b) the information concerning progress or performance of Services which is provided by ENPROTEC except when such disclosure is necessary to perform services required under this Contract or as required by law. 13.2 This Contract is made pursuant to the Texas Environmental, Health, and Safety Audit Privilege Act. This Contract shall not be construed as waiving any privileges under the said Act. Any report made pursuant to this Contract shall be marked, "Confidential Report: Privileged Document." ARTICLE XIV. INDEPENDENT CONTRACTOR 14.1 It is understood that all employees performing services under this Contract are and shall be considered to be the employees of ENPROTEC, and that none of said persons engaged under this Contract shall be regarded as employees of City in any instance. Further, ENPROTEC alone shall be responsible for the employment, control, and conduct of its employees. ENPROTEC's relationship to City under this Contract shall be that of an independent contractor and nothing in this Contract shall be construed to constitute ENPROTEC, or any of its employees, an agent, associate, joint venture or partner of City. ARTICLE XV. RECORDS AND INSPECTION 15.1 ENPROTEC agrees to maintain at their local offices in the city of Lubbock, in accordance with "Generally Accepted Accounting Principles and Practices," such records, for a period of three (3) years after termination of the Contract, as may be necessary to adequately reflect the accuracy of ENPROTEC's charges and invoices for reimbursement under this Contract and maintain such other additional records as City may from time to time reasonably require in connection with this Contract. City shall have the right during normal business hours to inspect and verify the records kept by ENPROTEC in connection with this Contract. ARTICLE XVI. DELAYS 16.1 In the event that ENPROTEC's field work is interrupted by the Texas Natural Resource Conservation Commission, the Occupational Safety and Health Administration, or the City of Lubbock due to unusual or unanticipated causes outside of its control, ENPROTEC shall be compensated for the additional labor, equipment, and other costs associated with maintaining its work force and equipment availability during such interruption, or at the option of City, for such similar charges that are to be incurred by ENPROTEC for demobilization and subsequent remobilization. 16.2 Except for the foregoing provision, neither parry shall hold the other responsible for damages or delays in performance caused by force major, acts of God, or other events beyond the control of either party which could not have been reasonably foreseen or prevented. For this purpose, such acts or events shall include unusual weather affecting performance of services, floods, epidemics, war, riots, strikes, lockouts, or other disturbances, protest demonstrations, unanticipated Site conditions and instability, which prevent ENPROTEC's ability, after reasonable diligence, to supply personnel, equipment or materials to the work site. Should such acts or events occur, both parties shall use their best efforts to overcome the difficulties arising and to resume, as soon as is reasonably possible, the normal pursuit of the services under the Contract. Delays within the scope of this article which cumulatively exceed forty-five (45) days shall, at the option of either party, make the Contract subject to termination or re -negotiation. ARTICLE XVII. STORAGE, TRANSPORTATION AND DISPOSAL 17.1 Any storage, transportation or disposal of hazardous, non -hazardous, or petroleum storage tank waste or waste product undertaken by ENPROTEC or its subcontractors under this Contract shall comply with all applicable local, state, and federal regulations and law. ARTICLE XVIII. AUTHORITY 15.1 The parties hereby represent that they have full power and authority to enter into and perform this Contract and the parties know of no Contracts, contracts, promises or undertakings which would prevent the full execution and performance of this Contract. ARTICLE XIX. RESERVATION OF RIGHTS 19.1 City or ENPROTEC's waiver of any of its remedies afforded hereunder or by law is without prejudice and shall not operate to waive any other remedies which either such party shall have available to it, nor shall such waiver operate to waive either such party's rights to any remedies due to a future breach, whether of a like or different character. ARTICLE XX. ACTIONS 20.1 All legal actions by either party against the other for breach of this Contract or for failure to perform in accordance with the applicable standard of care shall not be commenced more than two (2) years from completion of ENPROTEC's services. ARTICLE XXI. HEADINGS 21.1 The headings of the provisions of this Contract are inserted for convenience only and shall not constitute a part hereof. ARTICLE XXH. APPLICABLE LAW 7 22.1 The law of the State of Texas shall govern the construction of this Contract. ARTICLE =. SEVERABILITY 23.1 In the event that any provision of this Contract shall be found to be void or unenforceable, such findings shall not be construed to render any other provisions of this Contract either void or unenforceable, and all other provisions shall remain in full force and effect unless the provisions which are invalid or unenforceable shall substantially affect the rights or obligations granted to or undertaken by either party. ARTICLE XXIV. ENTIRE CONTRACT 24.1 This Contract represents the entire Contract between City and ENPROTEC with respect to the subject matter hereof and the services described herein, and supersedes all prior or contemporaneous representations, communications, Contracts or understandings, whether oral or written. No changes or modifications shall be made to this Contract unless reduced to a writing which clearly states that it is an amendment or change to this Contract and is signed by both of the parties hereto. ARTICLE XXV. TERMINATION 25.1 This Contract may be terminated in writing by either party in the event of substantial failure by the other party to fulfill its obligations under this Contract through no fault of the terminating party. However, no termination for default may be initiated unless the other party is given a ten (10) calendar day cure period after written notice (delivery by certified mail, return receipt requested) of intent to terminate. 25.2 This Contract may be terminated in writing (delivered by certified mail, return receipt requested) by City for its convenience. 25.3 Upon any termination, ENPROTEC shall (1) promptly stabilize site and then discontinue all services affected (unless a termination notice from City directs otherwise); and (2) deliver or otherwise make available to City after full payment for services, all documents, data, drawings, specifications, reports, estimates, summaries, and such other information and materials as may have been accumulated by ENPROTEC in performing this Contract, whether completed or in process. All payments due ENPROTEC at termination shall be made as provided in Article VI. 0 IN WITNESS WIEREOF, the parties have caused this Contract to be executed by duty authorized representatives, as follows: ENPROTEC, INC. Aubrey A Sp Vice President Date ATTEST: J B. Oldham Project Manager November 16, 1995 Date ATTEST: Z - betty . Jo on City Secretary APPROVED AS TO CONTENT: G I Ken tson Emergency Management Coordinator r :J 1_ First Assistant City Attorney EXHIBIT A-1 ENVIRONMENTAL ENGINEERING SERVICES Holly Power Plant Fuel Oil Spill Remediation Estimated Description Estimated Worst Performance of Probable Case Date Activities Costs Costs Dec -1995 Soil Vapor Survey $5,000 $17,500 (40 -50 paints) May -1995 Comprehensive Site Assessment $15,000 $25,000 (6 - 10 monitor wells) Jan -1996 Additional Corrective Action $3,000 $4,000 (3 - 4 recovery wells) Jul -1996 Risk Assessment $10,000 $15,000 Aug -1996 Remedial Action Plan $5,000 $7,500 Oct -1996 Remediation Engineering $10,000 $25,000 (design & specifications) Jan -1997 Construction Administration $7,000 $15,000 (engineering & oveisite) Mar -1997 Remedial System O & M $90,000 $150,000 Feb -2002 (Five Years) Total Cost Estimate $145,000 $259,000 EXHIBIT A-2 ENVIRONMENTAL ENGINEERING SERVICES South Fueling Facility PST Remediation Estimated Description Estimated Worst Performance of Probable Case Date Activities Costs Costs Dec -1995 Review & Modify Work Plan/Cost Estimate $800 $1,200 (for one samplinglanalytical event) Jan -1996 Establish Ambient Conditions $1,500 $2,500 (Implement work plan above) Feb -1996 Prepare Plan A- Risk Assessment $500 $1,000 Mar -1996 Prepare Work Plan/Cost Estimate $800 $1,200 (for quarterly monitoring- Annual) Apr -1996 Quarterly Monitoring $8,000 $12,000 (Implement work plan above- Annual) Jun -1996 Initiate Plan B- Risk Assessment $300 $500 (Review & information gathering) Jun -1996 Prepare Work Plan & Cost Estimate $1,500 $3,000 (for Comp. Site Assess. & Exposure Assess -Plan B) Jul -1996 Perform Additional Assessment $13,000 $20,000 (Implement work plan above- 4 to 6 wells) Jul -1996 Complete Plan B- Risk Assessment $5,000 $10,000 (including Remedial Action Pian) Oct -1996 Remediation Engineering $10,000 $25,000 (design & specifications) Dec -1996 Construction Administration $7,000 $15,000 (engineering & oversite) Feb -1997 Remedial System O & M $90,000 $150,000 Jan -2002 (Five Years) Total Cost Estimate $138,400 $241,400 EXHIBIT A-3 ENVIRONMENTAL ENGINEERING SERVICES Fire Station No. 11 PST Remediation Estimated Description Estimated Worst Performance of Probable Case Date Activities Costs Costs Jan -1996 Perform Limited Site Assessment $6,ODU $10,0UU (after Work Plan/Cost Estimate Modifications) Mar -1996 Closure ?? $4,000 (if possible at this point) Apr -1996 Prepare Plan A- Risk Assessment $1,000 May -1996 Prepare Work Plan/Cost Estimate $1,200 (for Quarterly Monitoring- Annual) Jun -1996 Quarterly Monitoring $12,000 (Implement work plan above- Annual) Aug -1996 Initiate Plan B- Risk Assessment $1,000 (Review & information gathering) Aug -1996 Prepare Work Plan & Cost Estimate $3,000 (for Comp. Site Assess. & Exposure Assess -Plan B) Sep -1996 Perform Additional Assessment $20,000 (Implement work plan above- 4 to 6 wells) Nov -1996 Complete Plan B- Risk Assessment $10,000 (including Remedial Action Plan) Dec -1996 Remediation Engineering $25,000 (design & specifications) Feb -1997 Construction Administration $15,000 (engineering & oversite) Apr -1997 Remedial System 0 & M $15000 Mar -2002 (Five Yeats) May -2002 Closure ?? $15,000 if possible at this int Total Cost Estimate $10,000 $263,200 EXHIBIT A-4 ENVIRONMENTAL ENGINEERING SERVICES Fleet Services Garage PST Remediation Estimated Description Estimated Worst Performance of Probable Case Date Activities Costs Costs Dec -1995 PSH Recovery (bailing by hand -Annual) $6,UUU s /,TUU Feb -1996 Review Existing Abatement System Plans $1,000 $2,500 Mar -1996 Prepare Work Plan & Cost Estimate $1,000 $2,000 (emerg. recovery system install & quarterly monitoring) Apr -1996 Prepare Abatement System Specs (emerg. bid) $2,000 $4,000 Install & Startup Abatement System Jun -1996 (oversight & labor) $5,000 $10,000 Quarterly Monitoring Jul -1996 (Implement work plan above- Annual) $8,000 $12,000 Initiate Plan B- Risk Assessment Aug -1996 (Review & information gathering) $500 $1,000 Prepare Work Plan & Cost Estimate Sep -1996 (for Comp. Site Assess. & Exposure Assess-Pl $1,500 $3,000 Perform Additional Assessment Nov -1996 (Implement work plan above- 4 to 6 wells) $13,000 $20,000 Complete Plan B- Risk Assessment Jan -1997 (including Remedial Action Plan) $5,000 $10,000 Remediation Engineering Feb -1997 (design & specifications) $10,000 $25,000 Construction Administration Apr -1997 (engineering & oversite) $7,000 $15,000 Remedial System 0 & M May -1997 (Five Years) $90,000 $150,000 Apr -2002 Closure ?? May -2002 if possible at this point) $5,000 $15,000 Total Cost Estimate $155,004 $277,000 EXHIBIT B FEE SCHEDULE PROFESSIONAL SERVICES Principal Engineers/Scientists .............................................................................. $ 95,00/hr Senior Engineer/Hydrogeologist............... ............................................................. $ 85.00 AssociateEngineer............................................................................................... $ 75.00/hr Project Engineer/Geologist/flydrogeologist............................................................ $ 65.00/hr Staff Engineer/Geologist/Hydrogeologist............................................................... $ 55.00/hr TECHNICAL SERVICES TechnicianIII.............................................................................................. ... $ 50.00/hr TechnicianII........................................................................................................ $ 40.00/hr TechnicianI......................................................................................................... $ 30.00/hr Drafter (with CADD equipment)........................................................................... $ 45.00/hr Administrative Assistant....................................................................................... $ 35.00/hr Clerical................................................................................................................ $ 30.00/hr Automobile.......................................................................................................... $ 0.3 5/mile EQUIPMENT PID, 580B ............................ ........................................................ I $ 75.00/day... $ 300.00/wk PID, hNu....................................................................................... $ 75,00/day... $ 300.00/wk LEL/02/CO/H2S Monitor............................................................ $ 45.00/day... $ 180.00/wk Water Level Meter........................................................................ $ 20.00/day... $ 80.00/wk OiUWater Interface Probe............................................................. $ 50.00/day... $ 200.00/wk Manometer................................................................................... $ 20.00/day ... $ 80.00/wk pH/Cond./Temp............................................................................ $ 20.00/day ... $ 80.00/wk Personal 112S Monitor ................................................................. $ 20.00/day... $ 80.00/wk 2" Submersible Pump.................................................................... $ 60.00/day ... $ 245.00/wk 3" Submersible Pump.................................................................... $ 40.00/day ... $ 160.00/wk 5KW Generator............................................................................ $ 60.00/day ... $ 245.00/wk Utility Trailer................................................................................ $ 25.00/day ... $ 100.00/wk Tripod & Power Unit.................................................................... $ 50.00/day ... $ 200.00/wk Air Purifying Respirator................................................................ $ 20.00/day ... $ 80.00/wk Air Sample Pump............................................................... •.......... $ 5.00/day ... $ 25.00/wk AGREEMENT FOR ENVIRONMENTAL ENGINEERING SERVICES THIS AGREEMENT FOR ENVIRONMENTAL ENGINEERING SERVICES made and entered into on the day and date last herein appearing by and between COMPLIANCE SERVICES GROUP, INC. ("CSG"), a Texas Corporation acting by and through its duly authorized officers and CITY OF LUBBOCK ("Client"). CSG agrees to provide to Client and Client agrees to hire and pay CSG for those services and consultation within the scope of work described in the Proposal or Statement of Work attached to this Agreement as Exhibit "A" and made a part hereof by reference. Any modification to the scope shall be agreed to in advance in writing by both Client and CSG, and shall be attached to and made part of this Agreement. QUALITY OF WORK: Consultation provided by CSG will be in accord with generally accepted principles and performance of other individuals of similar discipline and educational skill in the same geographical area. CSG will make reasonable efforts to provide services which are accurate and in the joint interest of Client, lend compliance with regulations in force at the time of project research, and offer protection of the environment and personnel who may be exposed to hazardous materials. WARRANTY: THERE ARE NO WARRANTIES, EXPRESS OR IMPLIED, REGARDING THE SERVICES PROVIDED HEREIN TO CLIENT BY CSG. AVAILABILITY AND SCHEDULING: CSG agrees to make every reasonable effort to perform work in a timely manner and at a time convenient for Client, and will inform Client of any delays at the earliest possible time. Client agrees to notify CSG, at the earliest reasonable time, regarding any changes in schedule which may affect scheduling of work for client by CSG. Client agrees to reimburse any costs or expenses incurred by CSG as a result of schedule changes made for convenience of Client. CONFIDENTIALITY AND OWNERSHIP OF DOCUMENTS: CSG agrees to retain information received from or about Client or Client's business in strictest confidence and shall not reveal such information to third parties without prior consent of Client, unless required to do so by a duly constituted legal authority acting within its proper jurisdiction. Discussions maybe limited to privileged communication between the Client's attorney(s) and CSG. Confidentiality requirements shall not apply to information otherwise released to public record by the Client. It is understood that all original documents produced by CSG remain the property of CSG and may not be reused or adapted without the express prior written permission of CSG. CANCELLATION: If for any reason Client cancels project work after this Agreement is initiated and prior to execution of the services, CSG will refund the excess of any advance payment to Client after deducting: (1) expenses already and unavoidably incurred, including the cost of personnel at CSG's customary and usual rates for time expended by professional staff and field personnel, and (2) a cancellation penalty of twenty-five (25%) of the unexpended balance of the contract. In the event that such expenses exceed any advance payment made by the Client, Client agrees to reimburse CSG for such excess upon presentation of a detailed list of such expenses and penalty. TRAVEL AND RELATED EXPENSES: Except as otherwise noted in the Proposal or Statement of Work, Client shall incur and/or reimburse CSG upon invoice for such travel and travel related expenses as are necessary and reasonable for professional staff to provide services including proposal consultation and preparatory discussions performed for Client. CSG shall make reasonable efforts, in its sole discrimination, to minimize expenses to Client, such as combining trips to allow apportioning of travel time and costs among Clients, or early reservations and ticketing. Agreement for Environmental Engineering Services - Page 1 of 4 pages INVOICE AND PAYMENT: Upon initiation of services, CSG will invoice on a monthly basis, at the completion of scheduled increments, or at the completion of each consultation session, as determined by agreement between the Client and CSG. The Client agrees to pay upon receipt of invoice on a net thirty (30) day basis in accordance with the schedule of rates set forth in Proposal or Statement of Work provided at the job inception, as updated periodically. Upon completion of travel on behalf of Client, CSG will submit an itemized invoice for travel expenses. The client agree to pay a fee of two (2%) percent each month for any payment more than thirty (30) days past the invoice date. LIMITATIONS OF LIABILITY: Client agrees to hold harmless and indemnify CSG and its employees with respect to liabilities associated with work performed for Client which may arise from or maybe due to: (1) any failure by the Client to disclose to CSG potentially relevant data or information; (2) any exposure to hazardous or toxic substances not manufactured or sold by CSG; (3) any function or failure of equipment provided by Client or by third parties, including subcontractors, whether used in actual work activities or in training and exercises; (4) scientifically unknowable risks; (5) unintentional or willful direction by the Client to CSG to unknowingly contravene any regulatory standards; and/or (6) any alleged error, omission, or alleged professional negligence except where willful and intentional misconduct by CSG is proven. Such indemnification by Client shall include any damages, cost of defense including reasonable attorney's fees, employee time, all costs of court and expenses which may be levied against or incurred by CSG or its employees or subcontractors. CSG shall carry and maintain in force at all times relevant hereto, at CSG's expense, insurance of the type and of the minimum coverage limits as follows: Workers' Compensation - Statutory Employer's Liability - $500,000 per accident Comprehensive General Liability, Bodily Injury and Property Damage including contractual liability in a combined single limit - $1,000,000 Comprehensive Automotive Liaiblity, Bodily Injury and Property Damage in a combined single limit - $1,000,000 Architects and Engineers Professional Liaibility - $1,000,000 INITIATION AND TERMINATION: This Agreement shall be effective upon signature of both parties and shall terminate upon documented completion of projects. This Agreement may be terminated by either party upon thirty (30) days prior written notice to the other party and the payment of any balances and penalties due. This Agreement may be extended by mutual consent of the parties; the continued assignment of work to CSG by Client, if accepted by CSG, shall be considered mutual consent to extension of the Agreement for the period of such work and for ninety (90) days thereafter. GOVERNING LAW: This Agreement shall be governed, construed, administered, and interpreted according to the laws of Texas. In addition, this Agreement is made pursuant to the Texas Environmental, Health, and Safety Audit Privilege Act and it shall not be construed as a waiver of immunities provided by that Act. Any report made pursuant to this agreement shall be marked, "COMPLIANCE REPORT: PRIVILEGED DOCUMENT". The parties acknowledge that this Agreement and the principal negotiations therefor, were undertaken and arrived at in Lubbock, Texas. Agreement for Environmental Engineering Services - Page 2 of 4 pages INDEMNIFICATION: CSG's liability shall be limited to injury or loss caused by the negligence of CSG its subcontractors, and/or agents hereunder. CSG has neither created nor contributed to the creation or existence of any hazardous, radioactive, toxic, irritant, pollutant, or otherwise dangerous substance or condition at the Site, and its compensation hereunder is in no way commensurate with the potential risk of injury or loss that may be caused by exposure to such substances or conditions. If neither CSG nor City are negligent, and the loss is caused by a third party, or third parties, and is not contributed to by either party to this Contract, then City shall indemnify, defend and hold harmless CSG from and against any such loss. The City will located all underground utilities that traverse the Site. Prior to any invasive field operations, all known utility companies will be contacted and asked to located and mark out any and all of their lines that pass through the Site. Notwithstanding any attempts by CSG to locate existing Site utilities and tanks, it shall be the ultimate responsibility of the City of locate all underground utilities and tanks prior to CSG's undertaking any invasive field operations and the City shall assume all liability resulting from damage to such utilities or tanks resulting from the City's failure to locate the same. The City shall review all locations prior to the start-up of invasive field operations and direct that they be relocated if a conflict exists with any underground utilities or tanks. CSG agree to indemnify and hold City (including its officers, directors, employees, subcontractors and agents) harmless from and against any and all liabilities (including any strict liability or other liability without fault asserted against City), damages, fines, penalties, costs, claims, demand and expenses (including costs of defense, settlement and reasonable attorney's fees) to the extent caused by any negligent act(s) or omission(s), gross negligence, willful misconduct or breach of contract by CSG, .its agents, employees, or subcontractors in performance of this Contract including any failure to comply with any pertinent federal, state or local law, statue, regulation, rule or ordinance or government directive. City agrees to indemnify and hold CSG (including its officers, directors, employees, subcontractors and agents) harmless from and against any and all liabilities (including any strict liability or other liability without fault asserted against CSG), damages, fines, penalties, costs, claims, demands and expenses (including costs of defense, settlement and reasonable attorney's fees) to the extent caused by any negligent act(s), omission(s), gross negligence, willful misconduct or breach of contract by City, its agents, employees, or subcontractors in the performance of this Contract, including any failure to comply with any pertinent federal, state or local law, statute, regulation, rule ordinance or government directive. Where acts or omissions of the nature referred to above by both CSG and City (including their respective officers, directors, employees, subcontractors or agents) have caused any liabilities, damages, fines, penalties, costs, claims, demands and expenses, whether or not third party's acts or omissions also were causal, CSG and City shall contribute to their common liability (including the costs associated with defense, settlement and reasonable attorney's fees) based upon the relative degree of fault of each. In any cased, the parties shall promptly meet to discuss cooperation, including cost sharing. SURVIVAL OF REPRESENTATIONS, COVENANTS AND WARRANTIES: The representations, warranties, covenants, and agreements of the parties which are contained in this Agreement, the Exhibits and in any other agreement or document executed in connection with this transaction, shall survive performance under the contract and any investigation or inquiry made by or on behalf of the parties. If at any time either party shall have notice of any facts which may lead to liability on the part of the other party for breach of any of the representations, warranties, covenants or agreements continued in this Agreement, such party shall give notice of such facts to the other and shall permit the other, personally or through any authorized representative, to participate at such other's expense in, and to become fully informed concerning, such matter. Agreement for Environmental Engineering Services - Page 3 of 4 pages COUNTERPARTS: This Agreement may be executed simultaneously in two or more counterparts, each of which shall be deemed to be an original, but all of which together shall constitute one instrument. ENTIRE AGREEMENT: WAIVER: All understandings, representations, warranties, agreements, offers and letters of intent made between any of the parties are merged in this agreement, which alone fully and completely expresses the entire agreement of the parties. Neither CSG nor Client is relying on any oral statements made by the other party. No modification of this Agreement shall be binding unless in writing and signed by all parties. ADDITIONAL DOCUMENTS: From time to time after the closing, Client shall, at the request of CSG, execute and deliver such additional conveyances, transfers, assignments and documents as may be required to effectively carry out the intent of this Agreement. PARAGRAPH HEADINGS: Paragraph and other headings are for reference purposes only and shall not affect the construction or interpretation of this Agreement. SEVERABILITY: If any provision of the Agreement is determined to be unenforceable, then that provision may be severed from the Agreement with the remaining terms of the Agreement retaining their full force and effect. BINDING EFFECT: This Agreement, shall inure to assigns of each of the parties. COMPLIANCE SERVICES GROUP, INC.: BY:' Raym nd C. Vaughn, CIH, CSP Vice President t//" /` 4 (DATE) of and be binding upon the successors and R. Langston Mayor November1, 1995 (DATE) ATTEST: .� Betty k Johnso City Secretary APPROVED S TO CONTENT: Ken 4ison Emergency Management Coordinator APPROVED AS TO FORM: D aid G. Vandiver First Assistant City Attorney Agreement for Environmental Engineering Services - Page 4 of 4 pages A. B. C COMPLIANCE SERVICES GROUP, INC. SCHEDULE OF RATES ENGINEERING AND SCIENTIFIC SERVICES MARCH 1993 Service Provided Hourly Rate Management $100.00 Principal Engineer/Scientist $ 85.00 Registered Engineer/Staff Scientist $ 75.00 Staff Engineer/Senior Technician $ 65.00 Technical Support Personnel $ 45.00 Non -Technical Support Personnel $ 30.00 Travel Expenses' Hotel Actual Cost + 15% Meals/Tips/Etc. Actual Cost + 15% Taxi/Car Rental Actual Cost + 15% Automobile $0.35 per mile + 15% Commercial Airlines Actual Cost + 15% Private Airplane Actual Cost + 15% Reimbursables" Printing/Publishing Actual Cost + 15% Photographic Work Actual Cost + 15% Postage/Shipment Actual Cost + 15% Long Distance Telephone Actual Cost + 15% D. Subcontract Expenses' Actual Cost + 15% 'Based on actuallinvoice cost plus 15% administrative fee EXHIBIT "A" - PROPOSAL FOR CITY OF LUBBOCK DATE: August 30, 1995 PROJECT: Investigation and Abatement of Subsurface Contamination City of Lubbock Fire Training Academy Site CSG No. 95155 SCOPE: Engineering and scientific services are proposed for the project site, as described below: I. Initial Project Information. Gather and verify dimensional data concerning the site. Define the anticipated zones for investigation. Perform search of applicable codes to define types and extent of investigations. Conduct search of potential contaminant receptors. (Estimated Cost $3,000) II. Historical Information. Gather and review aerial and other photographic documentation. Examine flood zone information. Review site activities and schedules to formulate investigation plan that has minimal impact to site users and occupants. (Estimated Cost $1,500) III. Site Investigation Plan. Determine appropriate analytical methods for initial sampling. Develop soil boring plans and soil sampling procedures for contaminant zones. Develop groundwater sampling procedures for contaminant zones. Develop project Health and Safety Plan. (Estimated Cost $6,500) IV. Coordination/Scheduling Meeting(s). Conduct meeting(s) with the City of Lubbock and the Texas Natural Resource Conservation Commission concerning proposed investigation. (Estimated Cost $1,000) FEES: Fees for these services would be based on hourly rates as described in the attached Compliance Services Group, Inc. Schedule of Rates for Engineering and Scientific Services, dated March 1993. Using estimated time and reimbursable cost requirements to establish this scope of services, a fee of $13,200.00 would be used as the not -to -exceed cost for the items described above. COMPLIANCE SERVI ES GROUP, INC.: CITY OF LUBBOCK: BY: BY: David J. Branson, .E. +T�ie) Vice President (Date) (Date) EXHIBIT "A" - PROPOSAL FOR CITY OF LUBBOCK DATE: August 30, 1995 PROJECT: Investigation and Abatement of Subsurface Contamination City of Lubbock Airport CFR Site CSG No. 95156 SCOPE: Engineering and scientific services are proposed for the project site, as described below: I. Initial Project Information. Gather and verify dimensional data concerning the site. Define the anticipated zones for investigation. Perform search of applicable codes to define types and extent of investigations. Conduct search of potential contaminant receptors. (Estimated Cost $3,000) 11. Historical Information. Gather and review aerial and other photographic documentation. Examine flood zone information. Review site activities and schedules to formulate investigation plan that has minimal impact to site users and occupants. (Estimated Cost $1,500) Ill. Site Investigation Plan. Determine appropriate analytical methods for initial sampling. Develop soil boring plans and soil sampling procedures for contaminant zones. Develop groundwater sampling procedures for contaminant zones. Develop project Health and Safety Plan. (Estimated Cost $6,500) IV. Coordination/Scheduling Meeting(s). Conduct meeting(s) with the City of Lubbock and the Texas Natural Resource Conservation Commission concerning proposed investigation. (Estimated Cost $1,000) FEES: Fees for these services would be based on hourly rates as described in the attached Compliance Services Group, Inc. Schedule of Rates for Engineering and Scientific Services, dated March 1993. Using estimated time and reimbursable cost requirements to establish this scope of services, a fee of $13,200.00 would be used as the not -to -exceed cost for the items described above. COMPLIANCE SERVICES GROUP, INC.: BY: Z 'L S). David J. Branson, PIE. Vice President CITY OF LUBBOCK: BY: (Nam ) (Title) rr-/_ys-� (Date) City of Lubbock Contract No. xxxxxxxx: Environmental Services City of Lubbock Work Order No. xxxxx: Airport CFR Site Estimated Item Description Time (days) 1 Initial Project Information: - GatherNerify Dimensional Data - Define Anticipated Contamination Zones -- Perform Code Search - Conduct Receptor Survey 2 Historical Information: - Gather/Review Aerial Photographs - Examine Flood Zone Data - Review Site Usage: Tasks & Schedules 3 Site Investigation Plan: - Determine Appropriate Soils/Water Analyses - Develop Soil Boring/Sample Plan(s) - Develop Groundwater Sample Plan(s) - Develop Health & Safety Plan 4 Coordination/Scheduling Meeting(s): - City of Lubbock -TNRCC 5 Site Investigation: - Place Soil Borings/Monitor Wells - Collect and Analyze Soil/Water Samples 6 Assessment Report- - Develop Contaminant Profiles - Conduct Health -Based Risk Assessment - Recommend Remedial Actions - Generate Technical Report 7 Report Review Meeting(s): - City of Lubbock -TNRCC 8 Remedial Action Plan: - Design Remedial Actions - Develop Bid Documents (as needed) 10 M 2 45 11M 6 45 Date: 30 -Aug -95 CSG No. 95156 Page 1 of 2 Es tima ted Cost ($) $3,000 $1,500 $6,500 $1,000 Unknown Unknown $1,000 Unknown 9 Bids: 30 $1,600 - Provide City with Eligible Bidders List - Assist City in Obtaining Bids - Review Bids and Provide Recommendations City of Lubbock Contract No. xxxxxxxx: Environmental Services Date: 30 -Aug -95 City of Lubbock Work Order No. xxxxx: Fire Training Academy CSG No. 95155 Page 2 of 2 Elapsed Estimated Item Description Time (days) Cost ($) 10 Site Remediation: 60 Unknown - Provide Site Remediation Administration - Supervise Contractor(s) - Document Site Remediation Actions 11 Post -Remediation Documentation: 30 Unknown - Sample/Analyze Site - Develop Post -Remediation Profiles - Recommend Further Actions: - Groundwater Monitoring (as needed) - Deed Recordation (as needed) - Generate Technical Report 12 Report Review Meeting(s): 2 $1,000 - City of Lubbock. - TNRCC 13 Site Closure: 30 Unknown - Apply for Site Closure - Provide Necessary Documentation/Assurances - Meet w/ TNRCC & City (as needed) Estimated Totals 336 Unknown City of Lubbock Contract No. xxxxxxxx: Environmental Services City of Lubbock Work Order No. xxxxx: Fire Training Academy Item Description 1 Initial Project Information: - GatherNerify Dimensional Data - Define Anticipated Contamination Zones - Perform Code Search - Conduct Receptor Survey 2 Historical Information.- - Gather/Review Aerial Photographs - Examine Flood Zone Data - Review Site Usage: Tasks & Schedules 3 Site Investigation Plan: - Determine Appropriate Soils/Water Analyses - Develop Soil Boring/Sample Plan(s) - Develop Groundwater Sample Plan(s) - Develop Health & Safety Plan 4 Coordination/Scheduling Meeting(s): - City of Lubbock -TNRCC 5 Site Investigation: - Place Soil Borings/Monitor Wells - Collect and Analyze Soil/Water Samples 6 Assessment Report: - Develop Contaminant Profiles - Conduct Health -Based Risk Assessment - Recommend Remedial Actions - Generate Technical Report 7 Report Review Meeting(s): - City of Lubbock -TNRCC 8 Remedial Action Plan: - Design Remedial Actions - Develop Bid Documents (as needed) Estimated Time (days) 10 5 30 2 45 45 2 45 Date: 30 -Aug -95 CSG No. 95155 Page 1 of 2 Estimated Cost ($) $3,000 $1,500 $6,500 $1,000 Unknown Unknown $1,000 Unknown 9 Bids: 30 $1,600 - Provide City with Eligible Bidders List - Assist City in Obtaining Bids - Review Bids and Provide Recommendations City of Lubbock Contract No. xxxxxxxx: Environmental Services Elate: 30 -Aug -95 City of Lubbock Work Order No. xxxxx: Airport CFR Site CSG No. 95156 Page 2 of 2 Elapsed Estimated Item Description Time (days) Cost ($) 10 Site Remediation: 60 Unknown - Provide Site Remediation Administration - Supervise Contractor(s) - Document Site Remediation Actions 11 Post -Remediation Documentation: 30 Unknown - Sample/Analyze Site - Develop Post -Remediation Profiles - Recommend Further Actions: - Groundwater Monitoring (as needed) - Deed Recordation (as needed) - Generate Technical Report 12 Report Review Meeting(s): 2 $1,000 - City of Lubbock -TNRCC 13 Site Closure: 30 Unknown - Apply for Site Closure - Provide Necessary Documentation/Assurances - Meet w/ TNRCC & City (as needed) Estimated Totals 336 Unknown Resolution No. 5032 V 0 1 D November 16, 1995 Item #17 CONTRACT BETWEEN THE CITY OF LUBBOCK AND ENPROTEC, INC. FOR ENVIRONMENTAL ENGINEERING SERVICES This Contract, effective this 16th day of November, 1995, between the CITY OF LUBBOCK, TEXAS, a Home -Rule Municipal Corporation located at 1625 13th Street, Lubbock, TX 79401 (hereinafter referred to as "City") and ENPROTEC, INC., a Texas Corporation located at 6310 Genoa Avenue, Suite E, Lubbock, TX 79424 (hereinafter referred to as "ENPROTEC"). ARTICLE I. SERVICES 1.1 ENPROTEC agrees to perform for City the environmental engineering services outlined in Exhibit A attached hereto and incorporated herein for all purposes. 1.2 The engineering services to be performed shall not be materially different from that referenced above, unless such modifications are reduced to writing and signed by authorized representatives of both City and ENPROTEC. It would be extremely expensive to conduct an investigation which would detect all material at the sites listed on attachment A or other City sites that may become a part of this Contract, or those which are presently, or in the future might be, considered hazardous. ENPROTEC cannot be held responsible for the failure of the investigation to detect the presence or quality of such materials. ARTICLE H. RECOGNITION OF RISK 2.1 City recognizes that environmental, geological and hydrogeological conditions can vary from those encountered at the time and locations where data are obtained by ENPROTEC, and that the limitation on available data may result in some level of uncertainty with respect to the interpretation of these conditions, despite the use of due professional care. ARTICLE III. LIABILITY 3.1 ENPROTEC represents that the engineering services shall be performed in a manner consistent with the level of care and skill ordinarily exercised by other environmental engineering firms under similar circumstances. No other representations to City, express or implied, and no warranty or guarantee, is included or intended in this contract, or in any report, opinion, document or otherwise. VOID ARTICLE IV. INDEMNIFICATION 4.1 ENPROTEC's liability shall be limited to injury or loss caused by the negligence of ENPROTEC, its subcontractors, and/or agents hereunder. ENPROTEC has neither created nor contributed to the creation or existence of any hazardous, radioactive, toxic, irritant, pollutant, or otherwise dangerous substance or condition at the Site, and its compensation hereunder is in no way commensurate with the potential risk of injury or loss that may be caused by exposure to such substances or conditions. 4.2 If neither ENPROTEC nor City are negligent, and the loss is caused by a third party, or third parties, and is not contributed to by either party to this Contract, then City shall indemnify, defend and hold harmless ENPROTEC from and against any such loss. 4.3 The City will locate all underground utilities that traverse the Site. Prior to any invasive field operations, all known utility companies will be contacted and asked to locate and mark out any and all of their lines that pass through the Site. Notwithstanding any attempts by ENPROTEC to locate existing Site utilities and tanks, it shall be the ultimate responsibility of the City to locate all underground utilities and tanks prior to ENPROTEC's undertaking any invasive field operations and the City shall assume all liability resulting from damage to such utilities or tanks resulting from City's failure to locate same. The City shall review all locations prior to the start-up of invasive field operations and direct that they be relocated if a conflict exists with any underground utilities or tanks. 4.4 ENPROTEC agrees to indemnify and hold City (including its officers, directors, employees, subcontractors and agents) harmless from and against any and all liabilities (including any strict liability or other liability without fault asserted against City), damages, fires, penalties, costs, claims, demands and expenses (including costs of defense, settlement and reasonable attorneys' fees) to the extent caused by any negligent act(s) or omissions(s), gross negligence, willful misconduct or breach of contract by ENPROTEC, its agents, employees or subcontractors in the performance of this Contract including any failure to comply with any pertinent federal, state or local law, statute, regulation, rule, ordinance or government directive. 4.5 City agrees to indemnify and hold ENPROTEC (including its officers, directors, employees, subcontractors and agents) harmless from and against any and all liabilities (including any strict liability or other liability without fault asserted against ENPROTEC), damages, fines, penalties, costs, claims, demands and expenses (including costs of defense, settlement and reasonable attorneys' fees) to the extent caused by any negligent act(s) or omission(s), gross negligence, willful misconduct or breach of contract by City, its agents, employees, or subcontractors in the performance of this Contract, including any failure to comply with any pertinent federal, state or local law, statute, regulation, rule, ordinance or government directive. 4.6 Where acts or omissions of the nature referred to above by both ENPROTEC and City (including their respective officers, directors, employees, subcontractors or agents) have caused any liabilities, damages, fines, penalties, costs, claims, demands and expenses, whether or not third party's acts or 2 VOID omissions also were causal, ENPROTEC and City shall contribute to their common liability (including the costs associated with defense, settlement and reasonable attorneys" fees) based upon the relative degree of fault of each. In any case, the parties shall promptly meet to discuss cooperation, including cost sharing. ARTICLE V. SAMPLES 5.1 ENPROTEC shall preserve samples obtained from the Site as it deems necessary for the project, but for not longer than forty-five (45) days after the issuance of any document that includes the data obtained from those samples, unless other arrangements are mutually agreed upon in writing. At any time, ENPROTEC can request, in writing, that City remove samples. Within ten (10) days of ENPROTEC's request, City shall comply with, pay and be responsible for the removal and lawful disposal of samples, unless other arrangements are mutually agreed upon in writing. ARTICLE VI. INFORMATION FROM CITY 6.1 Prior to the commencement of services, and continuing thereafter, City shall notify ENPROTEC of any known possible health or safety hazard existing on or near the Site where services are to be or are being performed by ENPROTEC or its subcontractors, with particular reference to hazardous substances or conditions. If hazardous substances or conditions are discovered by ENPROTEC during the performance of its services that had not been disclosed to ENPROTEC prior to signing the Contract, then, upon notification, City and ENPROTEC shall seek to determine the equitable adjustment to be made to this Contract. If the parties are unable to agree, the Contract will be terminated and ENPROTEC shall be paid for all charges and costs incurred up to and including the date of termination of the Contract. 6.2 City shall provide ENPROTEC with all relevant data and information in its possession relating to the Site and to the environmental, geological, and geotechnical conditions of the Site and surrounding area. City shall correctly show, on plans to be famished to ENPROTEC, the known locations of subsurface structures, such as pipes, tanks, cables and utilities. If subsurface conditions are discovered by ENPROTEC during the performance of its services that had not been disclosed to ENPROTEC prior to signing the Contract, then, upon notification, City and ENPROTEC shall seek to determine the equitable adjustment to be made to this Contract. If the parties are unable to agree, the Contract will be terminated and ENPROTEC shall be paid for all charges and costs incurred up to and including the date of termination of the Contract. City shall provide ENPROTEC, in writing, all criteria, design and construction standards, and all other information relating to City's requirements for the project. City shall give ENPROTEC prompt written notice of any suspected defect in ENPROTEC's services. ARTICLE VII. BASIS AND AMOUNT OF COMPENSATION FOR ENGINEERING SERVICES 7.1 For engineering services as outlined in Exhibit A, payment shall be on the basis of work performed and shall be based on the rate structure as outlined in Exhibit B. Estimated costs are itemized in 3 VOID Exhibit A. A scope of work and cost estimate shall be provided for each site prior to initiation of the work to be performed at the site. Work shall not begin at a site until the scope of work and cost estimates are approved in writing by an authorized representative of the City. However, in event of an emergency situation, verbal approval may be given with follow-up authorization in writing as outlined above. ARTICLE VIII. TERMS OF PAYMENT/RELEASE OF LIENS 8.1 Unless otherwise stated, the engineering services as stated in Exhibit A or changes as agreed to in writing by both parties, ENPROTEC shall invoice City at the end of each month for all services performed under the engineering services during that month. 8.2 Terms of payment shall be net thirty (30) days after invoice date of a properly prepared and correct invoice by ENPROTEC. Payment shall be considered made when payment checks are mailed by City. ENPROTEC's invoice shall be accompanied by such records or other written proof as City deems adequate to verify the billings appearing therein and shall be in a form as may be prescribed by City. A service charge of one and one-half (1-112) percent per month, but in no event higher than the highest rate allowed by applicable law, on the unpaid balance will be assessed on past due accounts and balances carried over thirty (30) days. 8.3 ENPROTEC agrees to furnish City a complete "Release of Liens and Claims," if required, before final payment is made. If any lien is filed or remains unsatisfied after final payment, ENPROTEC shall discharge any lien and indemnify City for all costs incurred in discharging such lien. ARTICLE IX. TAXES 9.1 ENPROTEC assumes full responsibility for the payment of all federal and state taxes of whatever sort, social security and unemployment compensation taxes, withholding taxes, and all other taxes or charges applicable to ENPROTEC's actions, employees, facilities and materials for performing services hereunder or applicable to ENPROTEC's income hereunder. ARTICLE X. SITE AND LOCAL CONDITIONS 10.1 ENPROTEC has the right to examine the Site in order to become acquainted with local conditions and accepts conditions at the Site unless otherwise noted in writing to City. Any coordination or scheduling of work by City shall not relieve ENPROTEC from its responsibilities specified hereunder. 10.2 ENPROTEC shall keep on the site a competent supervisor and/or technician who shall be its authorized representative for all purposes under this Contract. 10.3 Necessary arrangements for access to the Site by ENPROTEC's employees will be made with City. City reserves the right to withhold, or to withdraw approval for, access to its premises of any person for any reason considered sufficient by City. !ll ARTICLE XI. INSURANCE AND CERTIFICATIONS V 0 1 n 11.1 ENPROTEC shall carry and maintain in force at all times relevant hereto, at ENPROTEC's expense, insurance of the type and of minimum coverage limits as follows: 1. Workers" Compensation - Statutory Employer's Liability - $500,000 per accident 2. Comprehensive General Liability, Bodily Injury and Property Damage including contractual liability in a combined single limit $2,000,000 per occurrence 3. Comprehensive Automotive Liability, Bodily Injury and Property Damage in a combined single limit - $2,000,000 per accident 4. Professional Liability Insurance, $1,000,000 per occurrence 11.2 Certificates of insurance in a form acceptable to City, evidencing the coverages required above, shall be made available to City upon request. Such certificates shall provide that the insurer will give City not less than ten (10) days' advance notice of any material changes in or cancellation of coverage.. In the event any subcontractor is employed, with or without City consent, for the services covered in this Contract, then ENPROTEC assumes full responsibility to ensure that the subcontractor's services are covered by the same insurance limits as set forth herein. 11.3 ENPROTEC shall carry and maintain on staff at all times relevant hereto, at ENPROTEC's expense, the certification registrations of the type as follows: 1. A Registered Professional Engineer 2. A TNRCC Corrective Action Project Manager 3. 40 -hour OSHA Training as required by 29 CFR 1.910.120 for all field personnel. ENPROTEC must maintain the Corrective Action Specialist Certification and maintain a general Quality Assurance/Quality Control and Health/Safety Program. ARTICLE XII. ASSIGNMENT AND SUBCONTRACTING/THIRD PARTY RIGHTS 12.1 The rights and obligations covered herein are personal to each party hereto and not to any third party, and for this reason neither this Contract nor any contract hereunder shall be assignable by either party in whole or in part; nor shall ENPROTEC subcontract any of its obligations under this Contract or a contract without the prior consent of City of Lubbock's Purchasing Manager or his authorized representative. 12.2 Use of third party contractors shall be in accordance with the City's applicable purchasing policies and all known state and federal requirements. 9 ARTICLE XIII. NONDISCLOSURE 13.1 If so requested by City in writing, ENPROTEC agrees not to disclose to others (a) the fact that City has purchased or plans to purchase Engineering services from ENPROTEC or (b) the information concerning progress or performance of Services which is provided by ENPROTEC except when such disclosure is necessary to perform services required under this Contract or as required by law. 13.2 This Contract is made pursuant to the Texas Environmental, Health, and Safety Audit Privilege Act. This Contract shall not be construed as waiving any privileges under the said Act. Any report made pursuant to this Contract shall be marked, "Confidential Report: Privileged Document." ARTICLE XIV. INDEPENDENT CONTRACTOR 14.1 It is understood that all employees performing services under this Contract are and shall be considered to be the employees of ENPROTEC, and that none of said persons engaged under this Contract shall be regarded as employees of City in any instance. Further, ENPROTEC alone shall be responsible for the employment, control, and conduct of its employees. ENPROTEC's relationship to City under this Contract shall be that of an independent contractor and nothing in this Contract shall be construed to constitute ENPROTEC, or any of its employees, an agent, associate, joint venture or partner of City. ARTICLE XV. RECORDS AND INSPECTION 15.1 ENPROTEC agrees to maintain at their local offices in the city of Lubbock, in accordance with "Generally Accepted Accounting Principles and Practices," such records, for a period of three (3) years after termination of the Contract, as may be necessary to adequately reflect the accuracy of ENPROTEC's charges and invoices for reimbursement under this Contract and maintain such other additional records as City may from time to time reasonably require in connection with this Contract. City shall have the right during normal business hours to inspect and verify the records kept by ENPROTEC in connection with this Contract. ARTICLE XVI. DELAYS 16.1 In the event that ENPROTEC's field work is interrupted by the Texas Natural Resource Conservation Commission, the Occupational Safety and Health Administration, or the City of Lubbock due to unusual or unanticipated causes outside of its control, ENPROTEC shall be compensated for the additional labor, equipment, and other costs associated with maintaining its work force and equipment availability during such interruption, or at the option of City, for such similar charges that are to be incurred by ENPROTEC for demobilization and subsequent remobilization. 16.2 Except for the foregoing provision, neither party shall hold the other responsible for damages or delays in performance caused by force major, acts of God, or other events beyond the control of 0 VOID either party which could not have been reasonably foreseen or prevented. For this purpose, such acts or events shall include unusual weather affecting performance of services, floods, epidemics, war, riots, strikes, lockouts, or other disturbances, protest demonstrations, unanticipated Site conditions and instability, which prevent ENPROTEC's ability, after reasonable diligence, to supply personnel, equipment or materials to the work site. Should such acts or events occur, both parties shall use their best efforts to overcome the difficulties arising and to resume, as soon as is reasonably possible, the normal pursuit of the services under the Contract. Delays within the scope of this article which cumulatively exceed forty-five (45) days shall, at the option of either party, make the Contract subject to termination or re -negotiation. ARTICLE XVII. STORAGE, TRANSPORTATION AND DISPOSAL 17.1 Any storage, transportation or disposal of hazardous, non -hazardous, or petroleum storage tank waste or waste product undertaken by ENPROTEC or its subcontractors under this Contract shall comply with all applicable local, state, and federal regulations and law. ARTICLE XVIII. AUTHORITY 18.1 The parties hereby represent that they have full power and authority to enter into and perform this Contract and the parties know of no Contracts, contracts, promises or undertakings which would prevent the full execution and performance of this Contract. ARTICLE XIX. RESERVATION OF RIGHTS 19.1 City or ENPROTEC's waiver of any of its remedies afforded hereunder or by law is without prejudice and shall not operate to waive any other remedies which either such party shall have available to it, nor shall such waiver operate to waive either such party's rights to any remedies due to a future breach, whether of a like or different character. ARTICLE XX. ACTIONS 20.1 All legal actions by either party against the other for breach of this Contract or for failure to perform in accordance with the applicable standard of care shall not be commenced more than two (2) years from completion of ENPROTEC's services. ARTICLE XXI. HEADINGS 21.1 The headings of the provisions of this Contract are inserted for convenience only and shall not constitute a part hereof. ARTICLE XXII. APPLICABLE LAW 22.1 The law of the State of Texas shall govern the construction of this Contract. VOID ARTICLE XXIII. SEVERABILITY 23.1 In the event that any provision of this Contract shall be found to be void or unenforceable, such findings shall not be construed to render any other provisions of this Contract either void or unenforceable, and all other provisions shall remain in full force and effect unless the provisions which are invalid or unenforceable shall substantially affect the rights or obligations granted to or undertaken by either party. ARTICLE XX[V. ENTIRE CONTRACT 24.1 This Contract represents the entire Contract between City and ENPROTEC with respect to the subject matter hereof and the services described herein, and supersedes all prior or contemporaneous representations, communications, Contracts or understandings, whether oral or written. No changes or modifications shall be made to this Contract unless reduced to a writing which clearly states that it is an amendment or change to this Contract and is signed by both of the parties hereto. ARTICLE XXV. TERMINATION 25.1 This Contract may be terminated in writing by either party in the event of substantial failure by the other party to fulfill its obligations under this Contract through no fault of the terminating party. However, no termination for default may be initiated unless the other party is given a ten (10) calendar day cure period after written notice (delivery by certified mail, return receipt requested) of intent to terminate. 25.2 This Contract may be terminated in writing (delivered by certified mail, return receipt requested) by City for its convenience. 25.3 Upon any termination, ENPROTEC shall (1) promptly stabilize site and then discontinue all services affected (unless a termination notice from City directs otherwise); and (2) deliver or otherwise make available to City after full payment for services, all documents, data, drawings, specifications, reports, estimates, summaries, and such other information and materials as may have been accumulated by ENPROTEC in performing this Contract, whether completed or in process All payments due ENPROTEC at termination shall be made as provided in Article VI. 0