HomeMy WebLinkAboutC08-140t WESTON GENERAL TERMS AND CONDITIONS 1. Parties. References herein to WESTON mean the entity, division, affiliate or subsidiary corporation of WESTON SOLUTIONS, INC. (WESTON®) identified in the Proposal to whrch these General Terms and Conditions aze attached or have been incorporated by reference therein 2. Definitions. Agreement -The Agreement consists of the Contract Documents as described in Article 3 below. Access Agreements -All necessary approvals, permits, licenses, easements and consents that relate to or aze necessary for performance of WESTON's services. Change Order - CLIENT'S written request for services differing from the services described in the Scope of Work. Modification - A written amendment to the Agreement modifying the Scope of Work, the compensation and/or the terms and conditions of the Agreement signed by CLIENT and WESTON. Duys - A day as used herein means a business day unless otherwise described. Project Records - Infonmation in documentary, electronic medium or other form relating to performance of WESTON's obligations under this Agreement. Proposal -The letter or document, signed by WESTON, to which these General Terms and Conditions aze attached or made a part of and which sets forth WESTON's technical and/or cost proposal for the Work. Scope of Work orWork -The services and products WESTON has agreed in its Proposal to provide to CLIENT pursuant to this Agreement. Underground Facilities -Equipment and material beneath the ground surface including but not limited to buried or concealed pipes, tanks, cables, instruments, utilities, and other man-made objects whrch may affect or be affected by WESTON's services. 3. Contract Documents/Order of Precedence. The Contract Documents include Modifications, Proposal and Scope of Work dated 18 February 2008 attached hereto, WESTON General Terms and Conditions, Specral Terms and Conditions, Specifications and Drawings. In the event of any ambiguity, inconsistency, or conflict between or among the respective Contract Documents, the Contract Documents shall govern in the following descending order of precedence: (a) Modifications. (b) Proposal and Scope of Work. (c) General Terms and Conditions. (d) Specifications and Drawings. In the event of any ambiguity and/or inconsistency between or among Contract Documents having the same caption, a later dated document will take precedence over an earlier dated document. 4. Chanties. CLIENT, by Change Order furnished to WESTON, may request changes within the general scope of the Agreement in the Work to be performed. In order to be an effective request for such a change, any oral request for change in the Work must be confirmed in writing by a Change Order. If any such changes cause an increase in WESTON's costs and/or increase the time requrred for, or the nature of performance of the Agreement, WESTON shall so notify CLIENT within a reasonable time following receipt of the Change Order and an equitable adjustment in compensation shall be made through a Modification. WESTON shall have no obligation with respect to such changes, nor will WESTON be considered to be in default for failure or refusal to proceed with such changes until agreement on such cost or time impact has been incorporated into a srgned Modification. 5. Excluded Services. CLIENT acknowledges that the services and/or products to be provided by WESTON under this Agreement include only those services and/or products that are expressly listed in the Scope of Work. WESTON shall have no responsibility to provide any services and/or products that aze not expressly listed in the Scope of Work. CLIENT has made its own determination that any services and/or products that aze not listed in the Scope of Work aze either unnecessary or will be obtained by CLIENT from sources other than WESTON. 6. Force Maieure. WESTON will not be responsible for delays, such as, but not limited to, those attributable to acts of God, acts of the CLIENT or third Parties, weather, intervention of public authonties, work stoppages, changes in applicable laws or regulations after the date of commencement of performance hereunder or any other acts or omissions or events which aze beyond the reasonable control of WESTON. Costs and schedule commitments shall be subject to renegotiation for unreasonable delays caused by CLIENT'S or third Party's failure to provide specified facilities or information. The time for performance shall be equitably adjusted in the event WESTON is delayed in the performance of this Agreement by such causes and an equitable adjustment in compensation shall be made in accordance with the provisions of Article 4 hereof. 7. Invoices. (A) Invoices will be submitted on WESTON's standazd invoice format (on a monthly basis), and terms aze net cash in U.S. dollazs, due and payable within thirty (30) days upon CLIENT'S receipt of each invoice. (B) When the contract payment is based on a cost reimbursement, time and material, labor hour, or fixed rate schedule, the following provisrons shall apply: (i) Where applicable, rental charges will be applied to the Project to cover the cost of pilot-scale facilities, equipment, apparatus, instrumentation or other technical machinery. When such changes aze applicable, CLIENT will be advised at the start of an assignment, task or phase. Analyses performed in WESTON's laboratories will be billed in accordance with the laboratory's standard billing practices unless specified otherwise in the Agreement. (ii) Rermbursable expenses shall include but aze not limited to: travel and subsistence expenses of personnel (which may be chazged on a per diem basis) when away from therr home office on business drrectly or indirectly connected with the Project; identifiable communication, shipping, printing, and reproduction costs; subcontractors; identifiable drafting and stenographic supplies; computer time and software; and expendable materials and supplies purchased specifically for the Work. Costs incurred from third party vendors aze billed by WESTON at the price stated on the vendor invoice, and do not reflect any subsequent rebate or similaz payment that WESTON may receive based on volume purchasing, and/or other factors that aze neither tied to a specific vendor invoice nor calculated at the time WESTON bills the CLIENT for the cost. (iii) Invoices will be subrmtted on WESTON's standard rnvoice format which will state labor hours worked and total expenses. but will not include original documentatron (such as time sheets and expense receipts). If additional detail or actual invoice documentation is requested by CLIENT, WESTON will provide such additional detarl or documentation to County free of change. 8. Payments. Time is of the essence in the payment of invoices. Timely payment of invoices is a material part of the consideration of the Agreement and failure to pay invoices shall therefore constitute a material breach. Invoices not paid within thirty (30) calendar days of receipt by CLIENT aze considered overdue. In addition, CLIENT agrees that WESTON may, after giving ten (10) days written notice to CLIENT, suspend services without liability until CLIENT has paid in full all undisputed amounts overdue WESTON on account of services rendered and expenses incurred. Invoices shall not be subject to any discount. 9. Payment of Invoices. (A) CLIENT shall remit all invoices for more than twenty-five thousand dollars ($25,000.00) through electronic wire transfer of funds to WESTON's bank account, identified below: Account Number: 94292-23574 ABA Number: 0 1 1 90057 1 Swrft BIC: FNBBUS33 (For International Accounts) Page 1 of 5 ~! , WESTON GENERAL TERMS AND CONDITIONS (Continued) CLIENT may remit payment of invoices for less than twenty-five thousand dollars ($25,000.00) to WESTON's lockbox account identified below: Weston Solutions, Inc. P. O. Box 538253 Atlanta, GA 30353-8253 10. (A) Termination for Default. Either Party ("Terrinating Party") may terminate thrs Agreement, m writing, if the other Party ("Breaching Party") fails to fulfill its obligations under the Agreement ("breaches") through no fault of the Terminating Party. In such event the Terminating Party may, after giving the Breaching Party an opportunity to cure (as described in the next sentence of this Article 10(A)), declaze the Breaching Party in default by issuing a Declazation of Default and terminate the Agreement for cause. Before issuing such Declazation of Default, the Ternnating Party shall advise the Breaching Party that a Declaration of Default is imminent by sending the Breaching Party a written notice ("Notice of Imminent Default") by registered or certified mail, return receipt requested, including a description of the conditions constituting breach of the Agreement and providing the Breaching Party a period of time of not less than five (5) days and not more than twenty (20) days within which to correct such conditions to the satisfaction of the Terminating Party. In the event that the Breaching Party does not correct such conditions contained in the Notice of Imminent Default to the satisfaction of the Terminating Party within the designated period of time, the Terminating Party may issue a Declaration of Default and terminate the Agreement effective on the date specified in the Declazation of Default (the "Effective Date"). Disputes arising under ties Article, including final payment to WESTON, if unresolved amicably, shall proceed in accordance with Article 25 hereof. In the event this Agreement is termrnated for default, the Parties shall comply with the Orderly Transfer of responsibility provisions contained in Article 10(C) below. (B) Termrnation/Suspension for Convenience of CLIENT. The Work may be terminated or suspended by CLIENT in accordance with this Article 10(B) when CLII:NT determrnes that such termination or suspension is in CLIENT'S best interests. Any such termination or suspension shall be instituted by delivery to WESTON of a written Notice of Termination/Suspension for Convenience specifying the Agreement is being terminated or suspended for the convenience of CLIENT and directing WESTON to cease the performance of services under the Agreement upon the date of WESTON's receipt of such notification (the "Effective Date"). After receipt of the Notice of Termination/Suspension for the Convenience of CLIENT, WESTON shall upon the Effective Date cease performing services under the Agreement and as soon as practicable thereafter, WESTON shall: (1) Terminate or suspend all orders and subcontracts to the extent that they relate to the performance of the Work terminated or suspended by the Notice of Terrmnation/Suspension for Convenience. (2) Assign to CLIENT all of WESTON's rights, title and interest under the orders and subcontracts so terminated or suspended. (3) Transfer to CLIENT (and CLIENT will accept responsibility for) the obligation to satisfy all outstanding liabilities and all unresolved claims arising out of termination/suspension of orders and subcontracts associated with such termination or suspension; CLIENT shall release WESTON from all such outstanding liabilities and unresolved claims, and CLIENT shall indemnify, hold hazmless and defend WESTON from all losses, costs, damages and expenses, including attorneys' fees and expenses, arising out of or in connection with such outstanding liabilities and umesolved claims. (4) Transfer the responsibility for site management from WESTON to CLIENT in accordance with Article 10(C) below. (5) Submit to CLIENT and CLIENT shall pay WESTON's termination or suspension invorce including the total of: thus faz performed. (a) The cost and fees associated with such Work (b) The cost of settling and paying claims arising out of the termination or suspension of Work under subcontracts or purchase orders. (c) Reasonable demobilization costs. (d) A reasonable allowance for profit. (e) All costs incurred under Article 10(C) below. (C) Orderly Transfer of Responsibility. To the extent the Work involves WESTON-directed activity on site and the Work is terminated or suspended, whether for Convenience of CLIENT or for Default, the Parties hereto understand and agree that certain steps (hereinafter referred to as "Orderly Transfer") must be taken to properly implement the termination or suspension. CLIENT agrees that all costs of the Orderly Transfer will be borne by CLIENT. Upon notification of termination or suspension, WESTON will prepaze a memorandum of Orderly Transfer, which will advise CLIENT of the steps necessary to shut down the job site or otherwise effect a transition. Upon completion of the Orderly Transfer, WESTON will provide written notification to CLIENT. Upon notification by WESTON, CLIENT agrees to accept all responsibility for the Work and site, including but not limited to, continued maintenance and protection of the Work and site in accordance with all federal, state, and local laws and regulations. Upon notification of termination or suspension, WESTON will prepaze a memorandum of Orderly Transfer, which will advise CLIENT of the steps necessary to shut down the job site or otherwise effect a transition. Upon completion of the Orderly Transfer, WESTON will provide written notification to CLIENT. Upon notification by WESTON, CLIENT agrees to accept all responsibility for the Work and srte, including but not limited to, continued maintenance and protection of the Work and site in accordance with all federal, state, and local laws and regulations. 11. Health and Safety. WESTON has established and maintains a Health and Safety program for its employees or subcontractors. A copy of this Health and Safety plan is available for review upon request from CLIENT. WESTON specifically disclaims any authority or responsibility for general job site safety and health and safety of persons who are not WESTON's employees or subcontractors. Unless otherwise specifically included in the Scope of Work, WESTON is not responsible for the work site safety or the safety of any persons on the project site other than WESTON's employees or subcontractors. 12. Standard of Care. When WESTON serves as the professional representative of CLIENT or provides any professional services to CLIENT under this Agreement, WESTON will endeavor to do so in accordance with generally accepted professional standazds and practices as applied to similar projects performed under similaz conditions prevailing in the community where services are rendered at the time such advice, consultation and/or services are provided by WESTON. The Parties intend that the duty owed by WESTON is solely for the benefit of the CLIENT and that there is no other Party contemplated to benefit from the Work performed hereunder. 13. Indenendent Contractor. Unless provided otherwise elsewhere in this Agreement, WESTON shall provide its services under this Agreement as an independent contractor and its employees and subcontractors shall not be considered to be employees of CLIENT in any respect or for any purpose whatsoever. 14. No Warranty/Guarantee. Estimates of cost, approvals, recommendations, opinions and decisions by WESTON are made on the basis of WESTON's experience, qualifications and professional judgment and aze not nor should they be considered or construed as warranties or guazantees. WESTON MAKES NO WARRANTY OR GUARANTEE, EXPRESSED OR IMPLIED, REGARDING THE WORK TO BE PROVIDED UNDER THIS AGREEMENT. 15. Hazardous Materials. CLIENT beazs full responsibility and liability for the creation, existence or presence of any toxic, hazardous, Page 2 of 5 1 WESTON GENERAL TERMS AND CONDITIONS (Continued) radioactive, infectious or other dangerous substances existing at the site at the time WESTON commences performance of services at the site. CLIENT recognizes that when it is known, assumed or suspected that hazazdous materials exist on or beneath the surface of the site of the Project or within any structure thereon, certain sampling materials or residues, such as drill cuttings and drilling fluids or asbestos removed for sampling, should be handled as if hazardous or contaminated and CLIENT shall so notify WESTON and all appropriate federal, state and local public agencies in writing as required that such materials or residues may present a potential danger to the public health, safety and/or the environment. Accordingly, when sampling is included in the Scope of Work and when determined by WESTON in its sole discretion to be necessary based on WESTON's assessment of the degree of contamination, hazazd and risk, WESTON will promptly inform CLIENT that containerization and labeling of wastes or residues will be performed. WESTON will appropriately containerize and label such materials and will leave such containers on the site for proper and lawful removal, transport and disposal by CLIENT. The Parties do not intend for WESTON to take title to, control or have final authority with respect to the disposition of any hazazdous substance or waste. Accordingly, WESTON will not be considered to be a generator, arranger, storer, transporter, operator or disposer of hazardous substances or wastes as a result of activities performed in connection with this Agreement. CLIENT shall select and arrange for lawful disposal of any hazazdous substance, including but not limited to, samples obtained in connection with work under this Agreement WESTON may execute any manifests or forms in connection with such activity in the name of and on behalf of CLIENT. 16. Insurance. WESTON agrees to maintain, at its own expense, Worker's Compensation, Commercial General Liability, Automobile Liability, and Professional Liability insurances as follows: Tvues of Insurance Limits of Liability Worker's Compensation Statutory Worker's Compensation Emplover's Liability $1.000.000 Employer's Liability Commercial General $1,000,000 each occurrence Liability $2.000.000 aggregate Automobile Liability $1,000,000 each accident or loss All vehicles including hired and non-owned Professional Liability $1,000,000 per single (including Pollution claim aggregate Errors and Omissions) Contractor Pollution $1,000,000 per single Liability Insurance claim aggregate WESTON will, upon request, furnish appropriate insurance certificates to CLIENT. WESTON agrees to indemnify CLIENT for the hazazds covered by WESTON's insurance subject to the limitation of liability contuned in Article 18. WESTON agrees to purchase such additional insurance as may be requested by CLIENT (if such insurance is available), provided the costs (including WESTON's administrative costs) for such additional insurance are reimbursed by CLIENT. 17. Indemnity. Subject to the Limitation of Liability contained in Article 18 of this Agreement, WESTON shall defend, indemnify and hold CLIENT harmless from liability for claims, liabilities, losses, costs, damages and expenses, including attomeys' fees and expenses, for bodily injuries or death, property loss or damage, caused solely by the negligent acts or omissions or willful misconduct of WESTON, provided that WESTON shall not be responsible for and CLIENT shall to the extend allowable by law, defend, indemnify and hold WESTON harmless from any such claims, liabilities, losses, costs, damages and expenses, including attorneys' fees and expenses, arising from the negligence, acts or omissions of CLIENT, or CLIENT'S agents, representatives or employees. Claims against WESTON under this Indemnity provision aze considered disputes and shall be subject to Article 25 hereunder. 18. Limitation of Liability. Except as provided by Article 33 herein, WESTON's total liability to CLIENT for any loss or damage from claims under, arising out of or in connection with this Agreement from any cause, matter or event, including but not limited to WESTON's strict liability, breach of contract, tort or professional negligence, errors or omissions and/or any other basis, shall not exceed the lesser of (a) the total amount paid by CLIENT to WESTON under this Agreement or (b) the proceeds, if any, available from WESTON's liability insurance as specified in Article 16 hereof. CLIENT hereby releases WESTON from any liability exceeding such limited amount. Except as provided by Article 33 herein, neither Party be liable to the other for special, indirect, punitive, incidental or consequential damages whether or not such damages were foreseeable at the time of the commencement of the Work. 19. WESTON Emnlovees. During the term of this Agreement and for a period of six (6) months after completion or termination of this Agreement, CLIENT shall not offer to employ or actually employ any WESTON employee assigned to the Work. CLIENT agrees that WESTON may utilize employees of any of WESTON's subsidiary companies and affiliates in the performance of this Agreement. 20. Site Conditions/Site Access. CLIENT will provide WESTON access to the site. Before the start of work, CLIENT shall provide WESTON or advise WESTON of the location of any and all existing environmental information, including but not limited to, studies, reports, laboratory analyses and underground facilities known to CLIENT or in CLIENT's possession or control or which it has reason to believe exist which maybe pertinent to the Work. WESTON shall not be liable for damage, or bodily injury or death arising from damage, to subterranean structures (e.g.> pipes, tanks, cables, etc.) when such stmctures aze not called to WESTON's attention and/or accurately shown on plans funushed to WESTON by CLIENT in connection with the Work performed under this Agreement. CLIENT represents that it has obtained or will obtain permission on behalf of WESTON to enter all property required for inspection and performance of WESTON's services hereunder, including any access agreements, from all necessary Parties before start of the Work on such property. 21. Confidentiality. WESTON shall maintain as confidential and not disclose to others without CLIENT'S prior written consent, any information or documents obtained from CLIENT expressly designated by the CLIENT in wiring to be "CONFIDENTIAL." The provisions of this Article shall not apply to information in any form which (a) is published or comes into the public domain, (b) is already known to or by the receiving Parry, (c) is furnished by or obtained from a third Party which is under no obligation to keep the information confidential, or (d) is required to be disclosed by law or pursuant to a court order or subpoena of a court, administrative agency or other authonty with proper jurisdiction. Notwithstanding anything to the contrary set forth herein, it is understood by CLIENT that WESTON is or may be subject to certain legal and ethical considerations and obligations depending upon the nature and Scope of Work rendered hereunder which may require WESTON to disclose facts observed by WESTON to third Parties. In such event, WESTON shall advise CLIENT, but shall, subject to any legal or professional obligation as determined by WESTON's counsel to immediately disclose such facts, refrain from making any such disclosure until WESTON and CLIENT have conferred with respect to such facts. If for any reason the Parties aze unable to confer or if WESTON believes on the advice of counsel that it must disclose such facts, WESTON shall notify CLIENT of its intention to disclose such information prior to actual disclosure to third Parties. Any such disclosure shall not be deemed a violation or breach of this Agreement and CLIENT agrees that WESTON shall be and is hereby released from any liability, claim or cause of action whatsoever with respect to such disclosure. CLIENT agrees that WESTON may use and publish CLIENT'S name and a general descnption of WESTON's services Page 3 of 5 WESTON GENERAL TERMS AND CONDITIONS (Continued) with respect to the Work in describing WESTON's experience and qualifications to other clients and potential clients. WESTON acknowledges that CLIENT is a governmental entity subject to open records laws. Therefore, disclosure of this Agreement and WESTON's proposal maybe subject to public disclosure. 22. Use of Proiect Records. All Project Records, including but not limited to, drawings and specifications, prepared or furnished by WESTON (including WESTON's independent professional associates, consultants and subcontractors) pursuant to this Agreement aze instruments of service regazding the Work. CLIENT may make and retain copies for information and reference in connection with the Work; however, Project Records aze not intended or represented to be suitable for any use other than the use specified in the Contract Documents. Any reuse of Project Records without prior written verification or adaptation by WESTON for the specific purpose intended in this Agreement will be at CLIENT'S sole risk and exposure and without liability or legal exposure to WESTON, or to WESTON's independent professional associates, consultants or subcontractors. CLIENT shall, to the extent allowable by law, indemnify, defend and hold harmless WESTON and WESTON's independent professional associates, consultants and subcontractors from and against any and all claims, liabilities, losses, costs, damages and expenses whatsoever, including attorneys' fees and expenses, arising out of or resulting from reuse of any such Project Records without WESTON's express, prior written approval of reuse. Any venfication or adaptation agreed to by WESTON will entitle WESTON to compensation at rates to be agreed upon by CLIENT and WESTON at that time. 23. Records Retention. It is WESTON's practice and policy to retain Project Records including reports, drawings and correspondence developed during performance of the Agreement for a period of three (3) years after project completion. Such records may be maintained on electronic or other media, as WESTON may deem appropriate. Tn the event CLIENT desires Project Records to be mazntained For an additional period of time or m specific media, upon CLIENT'S written request to WESTON, such records shall either (a) be delivered to CLIENT or (b) be retained by WESTON for additional period(s) of time for a reasonable additional chazge. 24. Services. It rs understood and agreed that the Work performed and related products furnished to CLIENT under this Agreement are not subject to any provision of any Uniform Commercial Code. 25. Disputes. Unless the law provides a shorter limitations period (in which event that shorter limitations period shall apply), all disputes between the Parties arising out of or rn connection with this Agreement must be brought within three (3) yeazs of the commencement of the Work hereunder. All disputes between the Parties arising out of or in connection with this Agreement shall be resolved by submission to Mediation and Arbitration in Denver, CO or such other place as otherwise agreed in writing by the Parties as described below: (A) Mediation The Parties shall attempt in good faith to mediate each dispute and use their best efforts to reach agreement on the matters in drspute. Erther Party may make written request for non-binding mediation, which shall specify in reasonable detail the facts of the dispute, and within ten (l0) days from the date of delivery of the demand, the matter shall be submitted to Mediation in accordance with the American Arbitration Association Construction Industry Mediation Rules. The Mediator shall heaz the matter and, if requested by the Parties, provide an informal opinion and advice, none of which shall be binding upon the Parties, but is expected by the Parties to help resolve the dispute. Said informal opinion and advice shall be submitted to the Parties within twenty (20) days following written request for same. The Mediator's fee shall be shazed equally by the Parties. If the dispute has not been resolved within 120 days of submission of the request for Mediation, the matter shall then be submitted to Arbitration in accordance with Article 25(B) below: (B) Arbitration All claims, counterclaims, disputes and other matters in drspute between the Parties hereto arising out of or relating to this Agreement or the breach thereof not otherwise resolved in accordance with Article 25(A) hereof shall be decided by Arbitration in Denver, CO or such other places as otherwise agreed in accordance with the Construction Industry Arbitration Rules of the American Arbitration Association then obtaining, subject to the limitations and restrictions stated in Article 25(B)(1) and Article 25(B)(2) below. This Agreement to so arbitrate and any other agreement or consent to azbitrate will be specifically enforceable under the prevailing arbitration law by any court having jurisdiction. (1) Notice of demand for arbitration must be filed in writing with the other Party or Parties to this Agreement and with the American Arbitration Association. The demand must be made within a reasonable time after the claim, dispute or other matter in question has arisen. In no event may the demand for Arbitration be made after the time when institution of legal or equitable proceedings, based on such claim, dispute or other matter in question, would be barred by this Agreement or by the applicable statute of limitations or statute of repose. (2) No arbitration arising out of or relating to this Agreement may include, by consolidation, joinder or in any other manner, any person or entity who is not a Party to this Agreement. (3) Only by written consent signed by all the Parties to this Agreement and containing a specific reference thereto, may the limitations and restrictions contained in Article 25(B)(1) and Article 25(B)(2) be waived in whole or in part as to any claim, counterclaim, dispute or other matter. (4) The awazd rendered by the arbitrators will be final, not subject to appeal, and judgment maybe entered upon it in any court having jurisdiction thereof. (5) hi the event of any disputes between the Parties to this Agreement the Arbitrator shall awazd the prevailing party, in addition to all other appropriate relief, its reasonable costs and attorney's fees. 26. No Third Party Beneficiary. WESTON's services aze performed for the sole and exclusive benefit of CLIENT. This Agreement does not create, and is not intended to create, any right or benefit for anyone other than CLIENT and WESTON. 27. Sales and Use Tax. Pending a final ruling by appropriate tax authorities with respect to the imposition of a State Sales and Use Tax applicable to WESTON's professional services, CLIENT acknowledges that the obligation to pay sales and use tax, if ruled applicable to WESTON's services, is CLIENT'S obligation as purchaser. CLIENT agrees to pay such sales and use tax and hereby releases, indemnifies and holds WESTON harmless from any and all claims related to sales and use tax as it applies to WESTON's professional services provided under this Agreement. 28. Severability/Savings. The provisions of this Agreement shall be deemed severable and the invalidity or unenforceability of any of the provisions hereof shall not affect the validity and enforceability of the other provisions hereof. If any provision of this Agreement is unenforceable, for any reason whatsoever, such provision shall be appropriately limited and given effect to the extent that it may be enforceable. 29. Assignment. Neither Party shall assign, or otherwise transfer this Agreement or any rights or obligations hereunder to a subsidiary, successor, affiliate or any third Party, except as expressly provided herein, without the prior written consent of the other Party. Any attempted assignment will be null and void and without force and effect. Nothing hereunder shall prevent WESTON from employing such professional associates, subcontractors and consultants as WESTON deems appropriate to assist WESTON in the performance of services. 30. Litigation Services. CLIENT and WESTON agree that the Work performed hereunder may involve some form of legal process or proceedings during or after performance of the project. Such legal process or proceedings may include production of records, forms of Page 4 of 5 WESTON GENERAL TERMS AND CONDITIONS (Continued) discovery such as depositions and interrogatories, filings and court testimony. CLIENT agrees that if WESTON is required to participate in or otherwise respond to such legal process or proceedings in which WESTON is not a Party, CLIENT shall compensate WESTON for its efforts in so doing, including but not limited to, expenses, labor, document reproduction costs, travel expenses, legal fees, etc., reasonably incurred in connection with its efforts in responding to such legal process or proceedings. 31. Governing Law. The interpretation and enforcement of this Agreement is to be governed by and construed in accordance with the laws of the State of Colorado. terminated, WESTON shall be liable for actual and direct damages to the CLIENT. Jong an Anstey, P. . Project Manager Weston Solutions, Inc. 32. Entire Agreement. This Agreement represents the entire and integrated Agreement between the Parties and supersedes all other prior negotiations, representations or agreements, either written or oral. Any terms and conditions set forth in CLIENT'S purchase order, requisition, or other notice of authorization to proceed are inapplicable to the Work, except when specifically provided for in full on the face of such purchase order, requisition, or notice or authorization and specifically accepted in writing by WESTON. WESTON's acknowledgment of receipt of any purchase order, requisition, notice or authorization or WESTON's performance of Work subsequent to receipt thereof does not constitute acceptance of any terms or conditions other than those set forth in this Agreement. 33. Provision Mandated by House Bill 1343: Prohibitions on Public Contract for Services A. WESTON shall not knowingly employ or contract with an illegal alien to perform work under the public contract for services; or enter into a contract with a subcontractor that fails to certify to WESTON that the subcontractor shall not knowingly employ or contract with an illegal alien to perform work under the public contract for services. B. WESTON shall confirm or attempt to confirm through participation in the Basic Pilot Verification program, as administered by the United States Department of Homeland Security, that WESTON does not employ any illegal aliens. If WESTON is not accepted into the Basic Pilot Verification Program prior to entering into a public contract for services, WESTON shall apply to participate in the Program every three months until WESTON is accepted or the public contract for services has been completed, whichever is earlier. Information on applying for the Basic Pilot Verification Program can be found at: httas://www. vis-dhs.com\emploverregi stration C. WESTON shall not use the Basic Pilot Verification Program procedures to undertake pre-employment screening of job applicants while the public contract for services is being performed. D. If WESTON obtains actual knowledge that a Subcontractor performing work under the public contract for services knowingly employs or contracts with an illegal alien, WESTON shall be required to: i. Notify the Subcontractor and the CLIENT within three days that WESTON has actual knowledge that the Subcontractor is employing or contracting with an illegal alien, and ii. Terminate the Subcontract with the Subcontractor if within three days of receiving the notice required pursuant to subparagraph (i) of the paragraph (d) the Subcontractor does not stop employing or contracting with the illegal alien; except that WESTON shall not terminate the contract with the Subcontractor if during such three days the Subcontractor provides information to establish that the Subcontractor has not knowingly employed or contracted with an illegal alien. E. WESTON shall comply with any reasonable request by the Department of Labor and Employment made in the course of an investigation that the department is undertaking pursuant to its authority. F. If a WESTON violates these prohibitions, the CLIENT may terminate the contract for a breach of the contract. If the contract is so COUNTY OF EAGLE, STA' By and Through i~s.Bo~rf OF COLORADO anty Commissioners ~~~~~~ Peter F. Runyon, Eagle County Bo ATTEST: of County Commissioners G B y: C Teak Simonton Clerk to the Board ~~ v~ CQ~~A~p © 1991,1995,1999, 2001, 2002, 2003 Weston Solutions, Inc. Page 5 of 5 ~. •~ ~ Weston Solutions, Inc. C Ms. Valerie Hays, Project Manager Eagle County Facilities Management P.O. Box 850 Eagle, Colorado 81631 143 Union Boulevard, Suite 810 ~ Lakewood, Colorado 80228 303-729-6100 /Fax 303-729-6101 m www.westonsoutions.com Subject: Proposal for Additional Construction Support Leadville, Colorado Bus Barn Site Eagle County Government Weston Solutions, Inc. (Weston®) Opportunity No.: 46435 Dear Ms. Hays: 18 February 2008 Weston Solutions, Inc. (Weston®) has prepared this proposal to support the environmental needs of the Eagle County Facilities Management during the construction of the ECO Transit Bus Barn at 205 Highway 24 in Leadville, Colorado. Included are the scope of work, cost estimate and schedule provides a description of the activities anticipated for the environmental review, site visit, and reporting. This work will be completed as follow-up to the environmental research project previously completed by Weston for the property. Task 1-Site Visit and Sampling Weston will complete an environmental assessment of the property. This assessment will include surface sampling, which will be used to determine the metals hazardous classification of the soil that will be encountered by the Bus Barn construction contractor's personnel. The surface soil locations will be based on the Preliminary Site Plan provided to Weston by the Facilities Management. The area of the proposed 6-bus garage will be divided into a grid to collect a composite soil sample of the construction area. The soil will collected with a decontaminated hand auger, or a decontaminated shovel. Soil will then be homogenized on a decontaminated stainless steel bowl. This homogenizes soil will be placed into a laboratory supplied sample container. Additionally, a subsurface composite sample will be collected from the estimated total depth of any support piers required of the construction of the Bus Barn. Weston will need to be provided an architectural drawing depicting the location of any subsurface structures in order to collect the samples from the proper locations. Subsurface soil will be collected utilizing a decontaminated P:~EAGLE_06668~Proposa1~2008~Pb Samphng~Pb Sampling Revl.doc Ms. Valerie Hays Eagle County Facilities Management - 2 - 18 February 2008 hand auger, then homogenized in a decontaminated stainless steel bowl. If the total depth of the building support structure can not be achieved with the hand auger, soil will be collected from the depth of the hand auger refusal. Based on the historic data reported in the United States Environmental Protection Agency (EPA) Superfund documents, the composite soil samples will be analyzed for the comprehensive TAL Metals by EPA Method SW 846 6020/7471 (including: aluminum, antimony, arsenic, barium, beryllium, cadmium, calcium, chromium, cobalt, copper, iron, lead, magnesium, manganese, mercury, nickel, potassium, selenium, silver, sodium, thallium, vanadium and zinc). Samples will be submitted to Evergreen Analytical Laboratory (EAL) of Wheat Ridge, Colorado for standard turn-around-time of 14 days. Standing water and aone-inch ground water monitoring well are present on the property in the photographs supplied to Weston by Mr. Ray Merry (Eagle County Department of Health and Environment, Director) in the spring of 2007. A grab surface water sample will be collected form the standing water on the southwestern portion of the site, if present at the time of the mobilization to the site. A groundwater sample will be collected from the monitoring well on the property. This water conditions information will serve as a baseline in the Reasonable Steps Letter request and document any pre-existing conditions associated with the Superfund impacts at the property. Weston will mobilize to the site prepared to collect additional samples if deemed necessary based on observations. No additional samples will be collected without prior verbal approval by Eagle County. Site photographs will be taken of sampling locations and areas of potential environmental concerns. A site sketch will be made to include the following: sample locations, location and direction of site photographs, and any areas of potential environmental concern. Task 2 -Reasonable Steps Letter Request Preparation Weston contacted the EPA Project Manager for the Cal Gulch/Yak Tunnel Superfund Site to inquire into the possibility of Eagle County being considered a Bona Fide Prospective Purchaser (BFPP). Under the 2002 Brownfields law, BFPPs are those who purchase property knowing that contamination is present, but create significant benefits. As a BFPP, the County as the landowner would not be held responsible for pre-existing conditions associated with the Superfund impacts at the property. To become a BFPP, the EPA requires a letter from the perspective buyer requesting a Reasonable Steps Letter to be issued by the EPA. Weston will complete a draft version of this request letter. The draft will be submitted to the County for review and comment prior to issuing the final version to the EPA. Weston will include a brief description of the property location, a map depicting the property boundaries, other pertinent landmarks (roads, structures, topography, etc.), and the proposed construction activities in the request letter. P:\EAGLE_06668\Proposal\2008\Pb Sampling\Pb Sampling Revl.doc i Ms. Valerie Hays Eagle County Facilities Management - 3 - 18 February 2008 The Reasonable Steps Letter issued by the EPA will outline the steps the BFPP, Eagle County, will need to take to maintain the BFPP status. These reasonable steps include contacting the EPA to describe construction activities on the property to assure that Superfund Remedies (e.g., impacted soil containments, drainages, flood plains) on the property are protected, and conducting all construction utilizing Best Management Practices to assure safety of workers, the public, and the environment. Task 4 - Regortin~ Weston will evaluate the analytical data immediately upon receiving the final analytical data report from EAL. If the data exhibits detections of metals that exceed applicable human health standards, Weston will inform Eagle County via telephone and/or email. Weston will summarize the findings of the site visit in a letter report to the Eagle County Facilities Management. The report will include the following: • Summary of on-site activities conducted; • Summary of analytical data and final laboratory report; • Site location figure depicting pertinent features surrounding the property; • Site map depicting the on-site features including sample locations and areas of potential environmental concern; • Summary of any communications to the EPA and the Colorado Department of Public Health and the Environment (CDPHE, the State lead on the surrounding Superfund Site); and, • Conclusions and Recommendations. The report will be issued to Eagle County as a draft for review and comment. After Weston has had time to address the any issues, the final letter report will be issued to the County. This report will be for Eagle County's use for determining the potential human health risk present for future construction workers at the property. Schedule Based on conversations with Ms. Valerie Hays (the County's Project Manager) Weston plans to mobilize to the site in mid-March to early April 2008 to conduct Task 1. The exact data will be based on the weather and amount of snow present at the site. The field effort will take a minimum of one-week to prepare to mobilize to the site. The analytical data will be submitted for a standard turn-around-time of 14-days. The data interpretation and reporting are anticipated to take an additional week to complete. P:\EAGLE_06668\Proposal\2008\Pb Sampling\Pb Sampling Revl.doc i~ Ms. Valerie Hays Eagle County Facilities Management - 4 - 18 February 2008 Assumptions The following assumptions pertain to all tasks as outlined in this proposal: • All work will be completed utilizing the Preliminary Site Plan provided by the Eagle County Facilities Management's Project Manager. Should the proposed construction change, Weston will need to be provided and updated plan to assure samples are collected from the proper area and the Reasonable Steps Letter request outlines the most recent construction plan. • One surface soil and one subsurface composite soil sample will be submitted for laboratory analysis. • Surface soil sampling will be used for evaluating the human health exposure of construction personnel only. • The County will need to provide the depths and locations of any subsurface structural supports in order for Weston to collect the subsurface soil samples from the proper locations. • If the on-site Weston geologist cannot meet the total depth of any support structures while utilizing a hand auger to collect the subsurface soil samples, the soil at the refusal depth will be collected. No drilling with a drill rig will be completed at the site. • Any additional samples collected with the verbal approval of the Eagle County Project Manager will require a modification to the project cost. • Weston will complete the on site activities during a one day trip to Leadville. Adjustments to these assumptions may result in a change order for this proposal. Cost Estimate Weston will complete the Site Visit and Sampling, the Reasonable Steps Letter Request Preparation and the Reporting tasks outlined above for a lump sum total of $11,000.00. P:\EAGLE_06668\Proposal\2008\Pb Sampling\Pb Sampling Revl.doc i~ Ms. Valerie Hays Eagle County Facilities Management - 5 - 18 February 2008 The terms and conditions for Weston's 15 October 2004 Revised Proposal for Additional Site Characterization and Preparation and Submittal of Corrective Action Plan Modification authorized by the Eagle County's Assistant County Attorney, Ms. Debbie Faber on 28 October 2004 will apply to this proposal. A signature line is provided below indicating acceptance of the proposed work scope. If you approve, please sign and fax the proposal back to me at (303) 729-6101. Should you have any questions or require any additional information, please don't hesitate to contact me at (303) 729- 6178 or (720) 201-6105. Weston appreciates the opportunity to submit this proposal to you and looks forward to continuing to support your environmental needs. Sincerely, Jonathan Anstey, P.G. Project Manager Weston Solutions, Inc. Attachments cc: Ray Merry (EC DEH) Weston Proposal File (1.1) P:\EAGLE_06668\Proposal\2008\Pb Sampling\Pb Sampling Revl.doc /~ ~~/~~ ./ ~ - On behalf of Eagle Cou Please indicate your approval of the Proposal for Additional Construction Support at the Leadville, Colorado Bus Barn Site work scope and associated cost by signing below. Authorized by: Signature: Date: Weston Solutions, Inc. 143 Union Boulevard, Suite 810 Lakewood, Colorado 80228 303-729-6100/Fax 303-729-6101 www.westonsoutions.com 5•~~0~ P:~EAGLE_06668~Proposa1~2008~Pb Sampling~Pb Sampling Revl.doc