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HomeMy WebLinkAboutC2012-403 - 11/9/2012 - NAMASTER ENVIRONMENTAL SERVICES AGREEMENT (SHORT FORM FOR LAB PACK SERVICES) THIS MASTER ENVIRONMENTAL SERVICES AGREEMENT (this "Agreement") is entered into this 17th day of October 2012 by and between City of Corpus Christi, a Texas home rule municipal corporation (hereinafter "Customer ") and Progressive Environmental Services, Inc., d/b /a SWS Environmental Services (hereinafter "SWS "). In consideration of the mutual agreements, promises and covenants contained herein, and for other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, Customer and SWS, intending to be legally bound, the parties agree as follows: ARTICLE 1 Purpose L 1 This Agreement establishes the terms and conditions pursuant to which SWS may furnish Customer with certain Services as such term is defined in Article 3. 1.2 This Agreement shall not obligate Customer to purchase Services from SWS, nor shall it obligate SWS to provide Services, but shall govern all orders or requests for Services issued by Customer and which are accepted by SWS. SWS will use its best efforts to respond to orders or requests from Customer for Services. ARTICLE 2 Term 2.1 This Agreement shall continue in effect for one (1) year from the date of execution hereof, provided, however, that either party may terminate this Agreement at any time upon thirty (30) days' prior written notice to the other party, 2.2 In the event of any termination of this Agreement, Customer shall be responsible for (a) payment to SWS for all work completed through the date of termination; (b) all materials purchased by SWS for the Customer; (c) all administrative costs associated with the termination of this Agreement; and (d) reasonable demobilization fees. ARTICLE 3 Services 3.1 The environmental services to be provided by SWS (hereinafter individually or collectively referred to as "Services ") include, but are not limited to the following: • Typical field service -type work, including, but not limited to decontamination, confined space entry, vacuum services, site remediation and other activities associated therewith; • Industrial maintenance, including, but not limited to, water blasting, air mover services and other activities associated therewith; • Technical services, including sampling and laboratory analyses; • Lab Pack; • Transportation, proper handling and disposal of wastes; • Training; • Emergency response, including, but not limited to, containment, recovery, repackaging and removal of materials, site evaluation, site decontamination and restoration; • Standby of personnel and equipment in anticipation of activation; and • Emergency response training and mock spill deployments. ARTICLE 4 Waste Materials 4.1 During the term of this Agreement, Customer may, from time to time, provide certain waste materials to SWS. Waste Materials to be handled pursuant to this Agreement shall be agreed upon in advance in writing by SWS and Customer. Customer shall then provide SWS a waste profile sheet or similar document which accurately and completely describes the waste and its characteristics (the "Waste Profile "). Upon approval of the Waste Profile by SWS, the Waste Profile shall be incorporated into and become a part of this Agreement. 4.2 The treatment, storage and disposal facility ( "TSDF ") to which the waste materials are to be transported shall be designated by the Customer to SWS in writing. 2012 -403 11./44/12 Progressive Environmental Services INDEXED 4.3 Notwithstanding SWS assisting the Customer with qualifying and/or choosing a TSDF and/or signing Shipping Documents on behalf of Customer, SWS shall not be deemed to be the "generator ", "arranger" or "disposer ", as such terms are defined in applicable federal and state laws and regulations governing the disposal of wastes. 4.4 Title, risk of loss and all other incidents of ownership of the waste materials shall remain with the Customer until such time as the waste materials are accepted by and transferred to the designated TSDF. In the event that the TSDF rejects the waste materials because (a) the waste materials are improperly packaged or labeled; or (b) the waste materials contain constituents or have characteristics or properties not disclosed on the Waste Profile and which increase the costs of disposal or increase the risk of hazard to human health and the environment by the acceptance, handling and/or disposal of the waste materials; or (3) the designated TSDF is not permitted to dispose of waste materials with such previously undisclosed characteristics or properties, Customer shall designate in writing an alternate TSDF. Except to the extent that rejection is due to SWS' negligence or willful misconduct, Customer shall compensate SWS at the applicable Rates for the additional handling and transportation of the rejected wastes. ARTICLE 5 Pricing, Compensation and Payment Terms 5.1 Except for Emergency Response Services and Lab Pack Services, SWS and Customer shall agree in writing upon the pricing for Services to be performed hereunder prior to the commencement of work by SWS. In the event that there is no project - specific pricing, Customer agrees to pay SWS on a time and materials basis in accordance with the rates then in effect and applicable to planned work. 5.2 For Emergency Response Services, Customer agrees to pay SWS in accordance with the rates then in effect and applicable to unplanned work. The Customer shall initial the rate sheet, signifying its receipt and acceptance of the rates applicable to unplanned work. 5.3 For Lab Pack Services, Customer agrees to pay SWS in accordance with the rates contained in Exhibit 1 — SWS Time & Materials Rates for Lab Packs which is hereby attached to and incorporated into this Agreement. For Services not listed in Exhibit 1, Customer agrees to pay SWS in accordance with either Section 5.1 or 5.2. 5.4 Customer shall at all times be responsible for the payment of SWS invoices, regardless of Customer's entitlement to payment or reimbursement from its insurer or other third party. The attached rate sheet(s) present the applicable charges (the "Rates ") for planned work and unplanned work, and SWS' normal business hours for planned work. See Exhibit 1. 5.5 For Services provided, SWS, in its sole discretion, may issue either periodic invoices or a single invoice. 5.6 Payment terms shall be net thirty (30) days from the date of invoice. Interest will be charged at the rate of 1.5% per month, or the maximum amount allowed by law, on all amounts overdue for more than thirty (30) days. Customer shall be responsible for all costs (including costs incurred in any bankruptcy or insolvency proceeding) incurred by SWS to collect any payments due under this Agreement, including reasonable attorneys' fees. Payments from Customer shall first be applied to interest, if any, and then to principal. 5.7 Customer agrees to pay SWS in accordance with its Rates for planned work for any litigation support or testimony provided by SWS in connection with or arising out of the Services performed by SWS under this Agreement. 5.8 The aggregate of services performed, materials sold, and fees accessed by SWS shall not exceed $50,000 during the term of this Agreement. The Customer will not pay any invoices that exceed $50,000 in the aggregate to SWS without the express written permission of the Customer. ARTICLE 6 SWS Representations and Warranties 6.1 SWS shall provide all 'supervision, labor, materials, tools, equipment and subcontracted items for the performance of the Services. 6.2 SWS shall take necessary precautions for the safety of its employees, and shall comply with applicable provisions of the Occupational Safety and Health Act. It is understood and agreed, however, that SWS shall not be responsible for the elimination or abatement of safety hazards created by or otherwise resulting from work being performed by Customer's employees, its other contractors or agents. 6.3 SWS represents and warrants that it holds all necessary permits and licenses required for the performance of the Services. 6.4 SWS represents and warrants that it shall provide the Services in compliance with all applicable federal, state and local laws, regulations and ordinances. ARTICLE 7 Customer Representations and Warranties 7.1 Customer shall provide full and complete information regarding its requirements for the Services. Customer shall furnish complete information regarding the work site, surface and subsurface conditions, access, utility locations, site boundaries, and other reports, documents or information that may be reasonably requested by SWS. Customer shall communicate to SWS all special hazards or risks known to the Customer that are related to the performance of the Services pursuant to this Agreement. 7.2 Customer shall designate a representative who shall be fully acquainted with the Services to be provided hereunder and who shall be available at all times during performance of the Services and authorized to approve changes in the scope of the Services and/or budget, to render decisions promptly and to furnish information expeditiously to SWS. 7.3 Customer represents and warrants that it is under no legal restraint or order which would prohibit the performance of the Services by SWS. Customer represents and warrants that it has the requisite legal right, title, or interests necessary to provide control over and access to the premises where the Services are to be performed. Customer further represents and warrants that the Services to be provided under this Agreement will not violate any judicial or administrative order or any ruling of any court or governmental agency of which Customer has knowledge. 7.4 Customer represents and warrants that the description of the waste materials on the Waste Profile is accurate and complete; that waste materials to be transported by SWS for disposal or recycling will conform to such description; that containers of waste materials will be marked, labeled and otherwise conform with all applicable federal, state and local laws, regulations, and ordinances; that it holds clear title to all waste materials to be transported by SWS hereunder; that it is under no legal restraint or order which would prohibit transfer of possession of such waste materials to SWS for transportation and disposal; and that it has communicated and will communicate to SWS during the term hereof those hazards known by or become known by the Customer to be associated with the handling, transportation, treatment, storage and disposal of the waste materials. 7.5 Customer represents and warrants that it shall provide payment to SWS in accordance with the payment terms contained in this Agreement. ARTICLE S Indemnifications 8.1 SWS shall indemnify, defend and hold harmless Customer and their respective directors, officers, employees, agents, successors and assigns from and against any and all costs, losses, liabilities, claims, penalties, forfeitures, suits, and the costs and expenses incident thereto (including cost of defense, settlement and reasonable attorneys' fees) which Customer may hereafter incur, become responsible for or payout as a result of death or bodily injuries to any person, destruction or damage to any property, contamination of or adverse effects on the environment or any violation of applicable federal, state or local laws, regulations, or ordinances to the extent caused by: (1) SWS's breach of any term or provision of this Agreement, or (2) the negligence or willful misconduct of SWS, its employees or agents in the performance of this Agreement. Notwithstanding the foregoing, where the work or services provided by Contractor consists of or is related to emergency response, Contractor does not waive any right or ability it may have to assert responder immunity pursuant to any applicable Federal, state and/or local laws and ordinances and/or any lawful order, regulation and/or rules thereunder and shall not be liable for any claims where such responder immunity applies. 8.2 Neither party shall be liable to the other for indirect, incidental, consequential, or special damages, including loss of use or lost profits. ARTICLE 9 Insurance 9.1 Insurance Coverage. During the Term, SWS shall maintain a policy or policies of insurance providing for the following insurance coverage: (i) broad commercial general liability insurance providing commercial broad form, premises -- operations, explosion and collapse hazard, underground hazard, products /completed operations hazard, contractual liability, independent contractors, and personal injury coverage, (ii) business automobile liability — owned, non -owned and hired, (iii) professional errors and omissions/ environmental impairment coverage and (iv) worker's compensation and employer's liability, all in accordance with the provisions described in Exhibit A, attached hereto and incorporated by reference. Such insurance policy or policies shall name SWS as named insured and City as additional insured for auto and general liability coverage. For worker's compensation and employer's liability, SWS shall provide a waiver of subrogation in favor of the City. 9.2 Form of Policies. The foregoing policies of insurance shall be in form and written by insurers be issued by insurance companies reasonably acceptable to the Risk Manager for the City (the "Risk Manager ") which acceptance shall not be unreasonably withheld, and shall meet the requirements of Exhibit A. The Risk Manager shall be furnished two (2) copies of certificates of such insurance policies for the benefit of the City prior to the commencement of any work under the Agreement. The certificate of insurance shall provide that the City shall have thirty (30) days advance written notice of cancellation, intent to not renew, material change, or termination of any coverage required in this Agreement. Upon written request of the City Manager, SWS shall provide copies of all required insurance policies to the Risk Manager. ARTICLE 10 Changes in Work and Changes in Law 10.1 Customer agrees to pay SWS at the applicable Rates set forth for the Services in Sections 5.1, 5.2 or 5.3 above for additional Services or for any changes in the Services requested by Customer, regardless of whether such requests by Customer are verbal or in writing. 10.2 If any change occurs during the term of this Agreement with respect to any laws, rules, regulations or ordinances which affect the rights or obligations of Customer or SWS under this Agreement, or the applicability of any taxes or fees, or the cost or method of handling waste materials, Customer and SWS shall negotiate in good faith to bring this Agreement into conformance with such change or changes. In the event that such agreement cannot be reached, Customer or SWS shall have the right to immediately terminate this Agreement upon written notice to the other party. In the event of such termination, Customer shall pay SWS for Services completed, plus reasonable demobilization charges. ARTICLE 11 Work on Customer's or Third Party's Premises 11.1 Customer agrees to provide to SWS, its employees and its subcontractors a safe working environment for any Services which must be undertaken on premises owned or controlled by Customer or to which access has been given to Customer by a third party for the performance of the Services. Customer agrees to disclose to SWS, its employees and its subcontractors, all known or suspected hazards associated with the performance of the Services. ARTICLE 12 Force Majeure / Excuse of Performance 12.1 The performance of this Agreement, except for the payment for Services already rendered, may be suspended by either party in the event performance of this Agreement is prevented by a cause or causes beyond the reasonable control of such party. Such causes shall include, but not be limited to, acts of God, acts of war, riot, fire, explosion, accidents, inclement weather, sabotage, lack of adequate fuel, power, raw materials, labor or transportation facilities, changes in government laws, regulations, orders, or defense requirements, restraining orders, labor disputes, strike, lock -out or injunction (provided that neither party shall be required to settle a labor dispute against its own best judgment). The party which is prevented from performing by a cause beyond its reasonable control shall use its best efforts to eliminate such cause or event. ARTICLE 13 Notices 13.1 Any notice required or permitted pursuant to this Agreement shall be in writing and transmitted to the receiving party via certified mail, postage prepaid, return receipt requested, or by a commercial delivery service providing a delivery receipt, or by electronic transmission (e -mail) or facsimile which provides a confirmation of receipt. Such notices, and all invoices, documentation and payments shall be addressed to the parties at their respective addresses recited below or such other address for which a party provides notice hereunder. Customer: Chief of Police City of Corpus Christi 321 John Sartain St. Corpus Christi, TX 78401 Attention: Captain David Cook SWS: SWS Environmental Services 600 Grand Panama Blvd, Suite 200 Panama City Beach, FL 32407 Attention: Legal Department ARTICLE 14 Assignment 14.1 Neither party may assign this Agreement, or any of its responsibilities or obligations under this Agreement, in whole or in part without the prior written consent in each instance of SWS, such consent not to be unreasonable withheld, delayed or conditioned. ARTICLE 15 Additional Provisions 15.1 Pre - existing Contamination: Customer agrees that SWS shall not be responsible or liable for pre - existing contamination at any job location. 15.2 Independent Contractor: SWS is and shall be an independent contractor in the performance of the Services covered by this Agreement. Except for the limited purpose of signing Shipping Documents for Customer pursuant to Section 4.2 above, SWS shall not be considered to be an agent of Customer. 15.3 Waiver. Any waiver by either party of any provision or condition of this Agreement shall not be construed or deemed to be a waiver of any other provision or condition of this Agreement, nor a waiver of a subsequent breach of the same provision or condition. 15.4 Severability: If any article, section, subsection, paragraph, sentence or clause of this Agreement shall be deemed to be illegal, invalid or unenforceable for any reason, such illegality, invalidity or unenforceability shall not affect the legality, validity or enforceability of the remainder of this Agreement. 15.5 Entire Agreement: This Agreement and any exhibits or attachments to this Agreement represent the entire understanding and agreement between the parties hereto and supersedes any and all prior agreements, whether written or oral, that may exist or have existed between the parties relating to the Services. Additional, conflicting or different terms on any Purchase Order or other preprinted document issued by Customer shall be void and are hereby expressly rejected by SWS. Any amendments or modifications to this Agreement shall be in writing and shall be signed by Customer and SWS. 15.6 Survival: The provisions contained in Articles 5, 6, 7 and 8, and Sections 15.1 and 15.7 shall survive and remain in effect following the termination of this Agreement. 15.7 Law to Apply: This Agreement shall be subject to, construed and enforced in accordance with the laws of the State of Texas, without regard to the principles of conflicts of laws, and the parties hereby submit to the jurisdiction of the courts of the State of Texas for any disputes arising pursuant to this Agreement 15.8 Counterparts: This Agreement may be executed in multiple counterparts, each of which shall be deemed to be an original, but, taken together, shall constitute one and the same Agreement. WHEREFORE, the parties, by their duly appointed representatives, execute this Agreement as of the day and date first above written. CITY OF CORPUS CHRISTI S) Ron L. Olson City Manager — 71 Z g v Date Approved as to legal form: ���°t- z , 2012 Buck Brice Assistant City Attorney For City Attorney October 18 2012 Date EXHIBIT A INSURANCE REQUIREMENTS SWS Environmental ServiCeS Liability Insurance A. SWS, must not commence work under this agreement until all insurance has been obtained, required herein and such insurance has been approved by the City. SWS must not allow any subcontractor to commence work until all similar insurance required of the subcontractor has been so obtained. B. SWS must furnish to the City's Risk Manager, 2 copies of Certificates of Insurance with applicable policy endorsements, with the City named as an additional insured for all liability policies, and a waiver of subrogation on all applicable policies, showing the following minimum coverage by an insurance. company acceptable to the City's Risk Manager. TYPE OF INSURANCE MINIMUM INSURANCE COVERAGE 30 -Day Notice of Cancellation required on all certificates with applicable policy Bodily Injury and Property Damage Per occurrence - aggregate endorsements Commercial General Liability Including: $1,000,000 COMBINED SINGLE LIMIT 1. Commercial Broad Form 2. Premises— Operations 3. Explosion and Collapse Hazard 4, Underground Hazard 5. Products /Completed Operations Hazard 6. Contractual Liability 7. Independent Contractors 8. Personal injury AUTOMOBILE LIABILITY. $1,000,000 COMBINED SINGLE LIMIT 1. Owned vehicles 2. Hired & Non -owned vehicles WHICH COMPLIES WITH THE TEXAS WORKERS' COMPENSATION WORKER'S COMPENSATION ACT AND SECTION II OF THIS EXHIBIT EMPLOYERS' LIABILITY $500,000/$5000,000 /$500,000 PROFESSIONAL ERRORS AND OMISSIONS/ $1,000,000 PER OCCURRENCE ENVIRONMENTAL IMPAIRMENT COVERAGE Not limited to sudden & accidental discharge; to include long term environmental impact for the disposal of contaminants C. In the event of accidents of any kind, SWS must furnish the Risk Manager with copies of all reports of such accident.s.at the same time that the reports are forwarded to any other interested parties. II. ADDITIONAL REQUIREMENTS A. SWS must obtain workers' compensation coverage through a licensed insurance company in accordance with Texas law. The contract for coverage must be written on a policy and endorsements approved by the Texas Department of Insurance. The coverage provided must be. in amounts sufficient to assure that all workers' compensation obligations incurred will be promptly met. B. SWS financial integrity is of interest to the City; therefore, subject to (Name of Company)s right to maintain reasonable deductibles in such amounts as are approved by the City, SWS shall obtain and maintain in full force and effect for the duration of this Contract, and any extension hereof, at SWS sole expense, insurance coverage written on an occurrence basis, by companies authorized and admitted to do business in the State of Texas and with an A.M. Best's rating of no less than A- VII. C. The City shall be entitled, upon request and without expense, to receive copies of the policies, declarations page and all endorsements thereto as they apply to the limits required by the City, and may require the deletion, revision, or modification of particular policy terms, conditions, limitations or exclusions (except where policy provisions are established by . law or regulation binding upon either of the parties hereto or the underwriter of any such policies). SWS shall be required to comply with any such requests and shall submit a copy of the replacement certificate of insurance to City at the address provided below within 1.0 days of the requested change. SWS shall pay any costs incurred resulting from said changes. All notices under this Article shall be given to City at-the following address: City of Corpus Christi Attn: Risk Management P.O. Box 9277 Corpus Christi, TX 78469 -9277 (361) 826 -4555- Fax # D. (Name of Company) agrees that with respect to the above required insurance, all insurance policies are to contain or be endorsed to contain the following required provisions: • Name. the City and its officers, officials, employees, volunteers, and elected representatives as additional insured by endorsement, as respects operations and activities of, or on behalf of, the named insured performed under contract with the City, with the exception of the workers' compensation and professional liability polices; • Provide for an endorsement -that the "other insurance" clause shall not apply to the City of Corpus Christi where the City is an additional insured shown on the policy; • Workers' compensation and employers' liability policies will provide a waiver of subrogation in favor of the City; and • Provide thirty (30) calendar days advance written notice directly to City of any suspension, cancellation, non- renewal or material change in coverage, and not less than ten (10) calendar days advance written notice for nonpayment of premium. E. Within five (5) calendar days of a suspension, cancellation, or non - renewal of coverage, SWS shall provide a replacement Certificate of Insurance and applicable endorsements to City. City shall have the option to suspend SWS performance should there be a lapse in coverage at anytime during this contract. Failure to provide and to maintain the required insurance shall constitute a material breach of this contract. F. In addition to any other remedies the City may have upon SWS failure to provide and maintain any insurance or policy endorsements to the extent and within the time herein required, the City shall have the right to order SWS to stop work hereunder, and/or withhold any payment(s) which become due to SWS hereunder until SWS demonstrates compliance with the requirements hereof. G. Nothing herein contained shall be construed as limiting in any way the extent to which SWS may be held responsible for payments of damages to persons or property resulting from SWS or its subcontractor's performance of the work covered under this agreement. H. It is agreed that SWS insurance shall be deemed primary and non - contributory with respect to any insurance or self insurance carried by the City of Corpus Christi for liability arising out of operations under this contract. I. It is understood and agreed that the insurance required is in addition to and separate from any other obligation contained in this contract. PI] Environmental services, lab clean up ins. req. 7/19/12 Risk Mgmt,