HomeMy WebLinkAboutSHAW ENVIRONMENTAL & INFRASTRUCTURE INC ENERGY EFFICIENCY STUDY CONSULTANT SERVICES
CONSULTANT SERVICES AGREEMENT (CSA)
For
ENERGY EFFICIENCY STUDY CONSULTANT SERVICES
BETWEEN
THE CITY of AUGUSTA
AND
SHAW ENVIRONMENTAL & INFRASTRUCTURE, INC.
This Agreement is made and entered into this ~ day of df/~8rtL., 2009 by and
between the City of Augusta, Augusta, GA, hereinafter called the "CITY" and Shaw
Environmental & Infrastructure, Inc. (Shaw) a Corporation authorized to do business in Georgia,
hereinafter called the "CONSULTANT".
Whereas, the CITY desires to engage a qualified and experienced consulting firm to furnish
professional services to:
Design an Energy Efficiency and Conservation Strategy
for the
City of Augusta
Whereas the CONSULTANT has represented to the CITY that is experienced and qualified to
provide the services contained herein and the CITY has relied upon such representation.
Now, therefore, inconsideration of the mutual promises and covenant herein contained, it is
agreed by and between the CITY and CONSULTANT that the CONSULTANT shall provide the
professional services of the Project (see Scope of Services).
Page 1 of 17
CRITERIA
The following shall be used as the basis for the professional services contained herein:
Requirements, regulations and procedures as required for funding from the U.S.
Department of Energy (DOE) for Energy Efficiency and Conservation Black Grant
(EECBG) funding provided for in the American Recovery and Reinvestment Act of2009
(ARRA).
The CONSULTANT shall gather from the CITY all available data and information pertinent to
the performance of the services for the Project. The CITY shall have the final decision as to
what data and information is pertinent.
The CONSULT ANT shall ensure that the data and information meet the applicable standards as
specified herein.
The CONSULTANT shall report in writing any discovery of errors or omissions contained in the
data and information furnished by the CITY.
The CONSULTANT shall visit and become acquainted with the local conditions involved in
carrying out this Agreement. The CONSULTANT may request that a representative of the
CITY be present during visits.
The CONSULTANT shall recommend and secure the CITY"s written approval of, the manner of
project plans and presentation and the methods to be used in the plan preparation so that these
plans can be best utilized, as determined by the CONSULTANT and approved by the CITY, in
the orderly preparation of the detailed Energy Efficiency and Conservation Strategy. Upon
receipt of the CITY's written approval of the manner of the project plan presentation and
methods of plan preparation, the CONSULTANT shall proceed with implementation of plan
preparation.
The General Term and Conditions of this agreement found in Attachment "E".
Page 2 of 17
AMOUNT OF CONTRACT
It is agreed that the compensation hereinafter specified to perform the services (see Scope of
Services) required by this agreement includes both direct and indirect costs eligible for
reimbursement per DOE and chargeable to the project, as further defined in Appendix D
City of Augusta
Professional Services Fee:
$161,423.50
IN WITNESS WHEREOF, said parties have hereunto set their seals the day and year written
below and as evidenced by signatures in A TT ACHMENT "E".
Executed on behalf of CONSULTANT
RECOMMENDED FOR APPROVAL:
SHA W ENVIRONMENTAL &
INFRASTRUCTURE, INC.
Consultant Firm
CITY OF AUGUSTA, GA
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R:epr~tIve
;A;~!Ov~tl)ate: 10(7 /2001
",?,' (:~tt~c!i~;~orporate Seal)
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" '::":\'~~:~:':'>:
Honorable Deke Copenhaver, Mayor
Approved: Date: ( o! or ( 1) '1
(Attached Corporate Seal)
1:;;e-Ili,lrid M~n~ if
Title: M 1'/ -I V~
Page 3 oft7
CONSULTANT PROPOSAL
SCOPE OF SERVICES
General Scope of Services
The services to be furnished by the CONSULTANT under this Agreement shall be those
necessary to:
1. Develop and Energy Efficiency and Conservation Strategy (EECS) for the City of
Augusta.
2. Provide performance Evaluation and Detailed Reporting assistance consistent with
attachment "c" of the Federal Opportunities Announcement, the American Recovery and
Reinvestment Act of 2009 and the US DOE.
3. Provide services leading to the identification and capture of funding from alternative
sources outside of the formula grant.
Service s shall be provided in accordance with the Scope of Services for each phase of the work
with the following specific items of clarification:
Page 4 of 17
ATTACHMENT "A'
SCOPE OF SERVICES
The Shaw Team's suggested approach to delivering the scope of services set forth in the City Augusta's
Energy Efficiency Study Consultants RFP is divided into three tasks. Each of these tasks is described in
detail below.
Element 1 :
Develop an Energy Efficiency and Conservation Strategy (EECS) for the City of Augusta
Richmond County Government
In Element 1, the Shaw Team will facilitate a strategic planning process that will help inform
development of the City's Energy Efficiency and Conservation Strategy and the selection of
programmatic initiatives to be pursued. It will be consistent with the EECBG regulations that require it be
completed within 120 days of the award of the grant. The Shaw Team's approach to this work is
described in the sub-tasks below.
Sub-task E - 1.1 - Conduct Project Kick-off Meeting
At the start of the strategic planning process, the Shaw Team will conduct a kick-off meeting with the
City. Prior to the meeting, the City will have identified personnel who will work with us throughout the
project-that is, a core working group. The City's team should include a representative from the City
Manager's office as well as individuals responsible for capital planning, fleet, facilities, budget and
municipal regulations (e.g., zoning and codes). To facilitate project management, the Shaw Team
recommends that the City appoint a project liaison among its team members to serve as our primary point
of contact.
At the project kick-off meeting, we will brief participants on the project approach and schedule, confirm
the City's project objectives and discuss information and data needed for successful completion of the
project. We also will discuss with the City which additional stakeholders should be involved in the project
and what their roles might be. Our understanding is that, at a minimum, the City intends to have a
Steering Committee. Prospective members of each should be identified at the kick-off meeting, along
with strategies for approaching them. Any other stakeholders and their potential roles in the project also
will be discussed.
Deliverables for this sub-task will consist of a memo to all kick-off meeting participants
finalizing the project scope, objectives, approach and schedule; identifying operational and
performance data that will be required and action steps for obtaining it; and providing a
preliminary list of Steering Committee members, Community Advisory Group members and
other stakeholders, if applicable, that will be involved in the project.
Sub-task E 1.2 - Advise the City on appropriate membership of advisory groups and facilitate
meetings of the groups
Page 5 oft7
Using information obtained at the project kick-off meeting and its own research on local and regional
initiatives, the Shaw Team will advise the City on the appropriate membership and roles of the Steering
Committee and any other groups deemed helpful to development of the EECS. We also will recommend a
method for soliciting input from these groups and propose a schedule of meetings at which we will seek
their input during EECS development. After the schedule is approved by the City, the Shaw Team will
plan and facilitate the meetings.
Deliverables for this sub-task will consist of written recommendations on the appropriate
membership of the Steering Committee, a proposed schedule of meetings for the groups, meeting
minutes and lists of action items and actions taken resulting from meetings with stakeholders.
Sub-task E1.3 - Implement broader public involvement process
The Shaw Team will develop and propose a public participation process that will allow broader public
input to the EECS. At this time, we envision the need for two public meetings. The first meeting will be
held to obtain public input on a draft EECS; a second meeting will be held closer to the end of EECS
development to inform the public about programmatic initiatives of the EECS and help secure buy-in.
Deliverables for this sub-task will include a recommended strategy for obtaining public input on
the EECS and a proposed schedule for the meetings, meeting minutes and written descriptions of
feedback received through the public participation process.
Sub-task EtA - Document information relevant to the strategic planning process
Information and input gained during the strategic planning process will be captured, documented and
shared, as appropriate, by the Shaw Team. Documents likely to be produced include meeting minutes,
descriptions of feedback received through the public participation process, summaries of any research
conducted, action items and actions taken resulting from meetings with stakeholders, etc. Electronic
copies of all of these documents will be furnished to the City upon request.
Deliverables for this sub-task will include all of the deliverables associate with the sub-tasks
above, as well as summaries of any research conducted in the course of the strategic planning
process.
Element 2:
Performance Evaluations and Detailed reporting consistent with Attachment "e" of the
Federal Opportunities Announcement
Sub-task E2.1 - Develop Efficient Performance Reporting Formats
The Shaw team will develop Reporting requirements under the EECBG Program that will consist of the
following types of reports that are described in the Federal Opportunities Announcement, Attachment C:
Special Status Report: The recipient must report the following events bye-mail as soon as possible
after they occur:
1. Developments that have a significant favorable impact on the project.
2. Problems, delays, or adverse conditions which materially impair the recipient's ability to meet the
objectives of the award or which may require DOE to respond to questions relating to such events
from the public. For example, the recipient must report any of the following incidents and include the
anticipated impact and remedial action to be taken to correct or resolve the problem/condition:
Page 6 of 17
Financial Reporting: Submit a Quarterly Progress Report and the SF-425 Federal Financial Report.
Closeout Reporting: Property Certification
EECS Strategy: The Shaw Team will create and submit a Energy Efficiency and Conservation Strategy
(EECS) which will make this report unnecessary for the City of Augusta. This activity will be completed
no later than one-hundred twenty (120) days after the effective date of the award.
Sub-task E2.2 - Quarterly and Annual Reports for duration of Grant Award Period
Annual Reports: The annual report shall describe the status of development and implementation of the
energy efficiency and conservation strategy and an assessment of energy efficiency gains within the
jurisdiction of the City of Augusta. The annual report shall also address the metrics discussed later.
ARRA Performance Progress Report: At the end of each calendar quarter the Shaw Team shall assist
the City of Augusta with the submission this report. The report shall address the following:
1. The total amount of American Recovery and Reinvestment Act of 2009, Pub. L. 111-5, covered funds
received from that agency;
2. The amount of American Recovery and Reinvestment Act of 2009, Pub. L. 111-5, covered funds
received that were expended or obligated to project or activities;
3. A detailed list of all projects or activities for which American Recovery and Reinvestment Act of
2009, funds were expended or obligated including on:
The metrics described below are designed to track the accomplishments of projects funded by EECBG.
Grant recipients will be presented with reporting requirements at the time they receive funding and will be
expected to report their achievements in terms of the specified metrics presented below. Shaw will assist
the City of Augusta with required reporting.
The City of Augusta will be required to report quarterly on project expenditures, and also on specific
activities and achievements.
Expenditures: Accurate records will be kept on project expenditures for all EECBG ARRA funded
efforts. The specific information to be gathered and tracked is listed below. It will be the same for all
project types:
. Expenditures for project activities
. Expenditures for administration
. Expenditures for evaluation
. Leveraged funds
Metrics Activity: The key metrics to be reported will vary by project type. The minimum information to
be reported, by project activity type, is reported below.
1. Building Codes and Standards
2. Building Retrofits
3. Clean Energy Policy
4. Building Energy Audits
Page 7 of 17
5. Energy Efficiency Rating and Labeling
6. Government, School, Institutional Procurement
7. Industrial Retrofit Support
8. Loans, Grants, and Incentives
9. Incremental Cost for Efficiency and Design Elements in New Buildings
10. Renewable Energy Market Development
11. Financial Incentives for Energy Efficiency
12. Technical Assistance
13. Transportation
14. Workshops, Training, and Education
15. Other Activities Not Previously Defined
Sub-task E2.3 - Recommend tools for tracking and reporting metrics required by EECBG
The Shaw Team will work with the City to recommend tools for tracking and reporting metrics required
by EECBG. We will begin by assessing the extent to which the City's existing information management
systems track-or are capable of tracking-the required information. We will then identify any gaps in
existing data collection and tracking systems and recommend strategies to bridge those gaps so that the
City can meet ARRA's transparency and accountability requirements.
Deliverables for this sub-task will consist ofa memo identifying any relevant gaps in the City's
existing data collection and tracking systems and recommending strategies to bridge those gaps.
Shaw will prepare these audits for review and approval by the City prior to submittal:
Energy Savings (kwh equivalents)
~ Annual reduction in natural gas consumption (mmct) by sector and end-use category
~ Annual reduction in electricity consumption (MWh) by sector and end-use category
~ Annual reduction in electricity demand (MW) by sector and end-use category
~ Annual reduction in fuel oil consumption (gallons) by sector and end-use category
~ Annual reduction in propane consumption (gallons) by sector and end-use category
~ Annual reduction in gasoline and diesel fuel consumption (gallons) by sector and end-use
category
Job Creation/Retention
~ Number
~ Type
~ Duration
Renewable Energy Capacity and Generation:
~ Amount of wind-powered electric generating capacity installed (MW)
~ Amount of electricity generated from wind systems (MWh)
~ Amount of photovoltaic generating capacity installed (MW)
~ Amount of electricity generated from photovoltaic systems (MWh)
~ Amount of electric generating capacity from other renewable sources installed (MW)
~ Amount of electricity generated from other renewable sources (MWh)
Page 8 of 17
Emissions Reductions (tons) (C02 equivalents)
~ Methane
~ Carbon
~ Sulfur dioxide
~ Nitrogen oxide
~ Carbon monoxide
Element 3:
EECS Strategic Planning and Alternate Funding Capture
In Task 3, the Shaw Team will provide services leading to the identification and capture of funding from
alternative sources outside of the formula grant. This work is described in the sub-tasks below.
Sub-task E3.1 - Research energy efficiency and conservation programmatic opportunities available
for City operations and the community
In developing the EECS, the Shaw Team will use the municipal energy plan development process. We
will begin by requesting information about energy use by sector-municipal, residential, commercial and
industrial. We also will review relevant and available environmental assessments, municipal and
community plans, environmental program documentation, municipal fleet inventories, capital
improvement plans and budgets and any other relevant information to identify energy efficiency and
conservation opportunities. To facilitate the EECS planning process, the Shaw Team will provide a list of
the types of materials needed to the City before the project kick-off meeting.
After analyzing all relevant and available information, the Shaw Team will develop a preliminary list of
possible energy efficiency and conservation opportunities. We then will meet with the City's core
working group for an EECS scoping session. The scoping session is a structured information-gathering
and planning process that produces:
· Municipal energy efficiency and other, related objectives
. Groups to target for energy efficiency
· Resources that support municipal objectives and targeted groups
. Partners who can help with implementation
· A list of energy efficiency and conservation projects, by targeted group
. Performance measures for projects
· Timeline or schedule for project implementation
Information and insights gained through the research process and EECS scoping session will be used to
inform development of the EECS; thus
The Deliverable for this sub-task will be the final EECS, as described in sub-task 3.5.
Sub-task E3.2 - Prioritize programs s for funding
In this sub-task, the Shaw Team will assist the Steering Committee in prioritizing energy efficiency and
conservation programs for funding. Criteria used to prioritize the programs will be determined by the City
and Steering Committee, but may include the following:
. Extent to which the program supports municipal objectives
Page 9 of 17
addition, the Shaw Team expects the City's working group to be an integral part of the overall strategy
development and will elicit their input and guidance throughout the development of the project and
EECBG plan.
Page 11 of 17
ATTACHMENT B - COMPENSATION
The CITY shall compensate the CONSULTANT for services, which have been authorized by the
CITY under the terms of this agreement.
The Consultant may submit to the CITY a monthly invoice, in a form acceptable to the CITY
and accompanied by all support documentation requested by the CITY, for payment for the
services, which were completed during the billing period. The CITY shall review for approval
said invoices. The CITY shall have the right to reject payment of any invoice or part thereof if
not properly supported, or if the costs requested, or a part thereof, as determined solely by the
CITY, are unreasonably in excess of the actual completion of each phase. The CITY shall pay
each such invoice or portion thereof as approved, provided that the approval or payment of any
such invoice shall not be considered to be evidence of performance by the CONSULTANT to
the point indicated by such invoice, or of receipt of acceptance by the CITY of the service
covered by such invoice. The CITY shall pay any undisputed items contained in such invoices.
When the CITY authorizes the CONSULT ANT to proceed with the work authorized in a Task
Order, it agrees to pay the CONSULTANT for work completed on the basis of the Lump Sum
Fees per Task as found in Attachment B-1 'Basis of Compensation' herein. Said Task Order
shall expressly state and verify City has funds available, in hand and committed for the subject
Task Order.
Upon completion of 65% of either the work, of tasks or Fees, CONSULT ANT shall notify City
of the same and City shall immediately notify and confirm in writing to CONSULTANT that
funds are available, in hand and committed for the total scope of work. Upon such notice,
CONSULTANT shall proceed with the remaining 35% of work, tasks or Fees.
Overtime may be performed at the discretion of the CONSULTANT, but the premium time
portion of the overtime will not be billed to CITY unless the CITY has requested acceleration of
the scheduled work in writing.
SPECIAL CONDITION
Contract is subject to funding from the Energy Efficiency and Conservation Block Grant
(EECBG) ( aka "block grant" ) as awarded by the DOE on August 21,2009 to the CITY. If at
any time that funding commitment is withdrawn, then this contract shall terminate upon
reasonable notice to CONSULTANT. Final payment to the CONSULTANT shall consist of
payment for work completed to date plus any terminations cost reasonably incurred by the
CONSULTANT. CONSULTANT shall not complete any work that is not funded and payable
by City. CITY represents and warrants at the time of contract execution the CITY has the proper
funds in place for this agreement. CITY shall furnish reasonable written evidence satisfactory to
CONSULTANT, prior to the commencement of the work or any Task by CONSULTANT and/or
at such future times as CONSULT ANT may reasonably require, that sufficient funds are
available, in hand and committed for the entire cost of the Work or any Task. Unless such
reasonable evidence is furnished, CONSULTANT is not required to commence or continue any
Page 12 of 17
Work, or may, if such evidence is not presented within a reasonable time, stop work upon 3
business days written notice to the CITY. The failure of CONSULTANT to insist upon the
provisions of this evidence at anyone time shall not be a waiver of the CITY's obligation to
make payments pursuant to this Agreement, nor shall it be a waiver of CONSULT ANT's right to
request or insist that such evidence be provided at a later date by the CITY. Any delay in
CONSULT ANT completion caused by the lack of funding or payment shall not be the
responsibility of CONSULT ANT.
Page 13 of 17
ATTACHMENT B-1
BASIS OF COMPENSATION
1. Basic Services: The CITY shall pay the CONSULTANT for services set forth in
Attachment A., Scope of Services, Lump Sum Fees as shown below:
TASK
Evaluation of full spectrum of eligible activities
Develop & Submit Energy Efficiency & Conservation
Strate
Submit for approval of CITY for review
Gain approval by DOE
Develop a system & format for Performance & Report
Completion of Energy Audits
Assistance filing of Quarterly & Annual Reports
Evaluate Candidate Programs & Projects
Identify steps necessary to position projects
TOTAL
$
$
$
$
$
$
$
$
$
$
FEE
14,064.00
26,979.00
16,333.00
3,257.00
8,158.50
29,392.50
51,403.00
7,055.50
4,781.00
161,423.50
2. A percentage of the Lump Sum Fee will be billed by the 5th day of each month. The
percentage billed will be the percentage of work estimated to be complete as of the day of
billing.
3. The payments to the CONSULT ANT by the CITY shall be Lump Sum based on the tasks
as outlined on the Compensation Table and Project Schedule contained herein.
4. A retainer of 2% of the total fee shall be retained until the expiration of the contract
period.
5. Additional Services: The CITY shall pay the CONSULTANT for additional services,
which are not specifically called for in Attachment A, Scope of Services as negotiated
and ordered in writing by the CITY.
Page 14 of 17
A TT ACHMENT - C
LISTING OF KEY PERSONNEL
CONSULTANT shall provide qualified personnel to perform its work. The list of positions
listed below represent the level of disciplined professionals proposed for this project. Key
personnel will not change without prior written approval of the CITY.
The CONSULT ANT's Hourly Rates listed on the schedule below shall be used for Additional
Services.
Positions
Houri Rate
$ 200.00
$ 151.00
$ 133.00
$ 133.00
$ 124.00
$ 88.00
$ 66.00
Page 15 of 17
ATTACHMENT - D
SCHEDULE FOR PERFORMANCE
Project Schedule
The Shaw Team has reviewed the schedule requirements posed by both the City of Augusta and as a
condition of utilization of the federal funding available for the subject program. Our approach and
proposed schedule is represented on the Gantt Chart on the following page.
The contract period shall be 36 months. It is recognized by both parties that the greatest effort
will be required within the first several of months due to the fact that there will be less than the
maximum 120 days from date of award of funding (August 21, 2009) by the Department of
Energy (DOE) to complete the EECS after the contract execution necessitating an expedited
effort during this period.
It is further recognized that the CITY must act with a since of urgency with regards to providing
information required by the CONSULT ANT in a timely manner to allow the successful
execution of the development of the EECS.
Page 16 of 17
ATTACHMENT-E
SHAW ENVIRONMENTAL & INFRASTRUCTURE. INC.
PROFESSIONAL ENGINEERING SERVICE AGREEMENT
Shaw E & I's Professional Engineering Services Agreement operates as the General Terms &
Conditions of this Agreement.
In the event of conflict between the Consultant Services Agreement (CSA) and Professional
Engineering Services Agreement, the Professional Engineering Services Agreement shall
govern.
Page 17 of17
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SHA W ENVIRONMENTAL & INFRASTRUCTURE, INC.
PROFESSIONAL SERVICES AGREEMENT
FIXED PRICE BASIS
1. SERVICES: Shaw Environmental & Infrastructure,
Inc. (IOSE&IIO) a Louisiana corporation, agrees to
perform for the undersigned CLIENT professional
environmental, health and safety, consulting and/or
analytical services ("Services") described in attached
Consultant Services Agreement
and/or as follows:
Scope of Work for Energy Efficiency Study
Consultant Services for the City of Augusta.
GA
in accord with the following terms and conditions.
2. FEES, INVOICES AND. PAYMENTS: The
Services will be performed on a fixed price basis for
_ OneHundredsixtyonethousandfourhundredtwentythree
50/l00_Dollars ($ 161.423.50 ).
Invoices will be submitted by SE&I no more frequently
than every month., with payment due upon CLIENT'S
receipt of invoice. Payment shall be in U.S. Dollars.
CLIENT shall be responsible for payment (without
deduction or offset from the total invoice amount) of
any and all sales, use, value added, gross receipts,
franchise and like taxes, and tariffs and duties, and all
disposal fees and taxes, levied against SE&I or its
employees by any government or taxing authority. A
service charge equal to one and one. half percent (I Y:z
%) per month, or the maximum rate permitted by law,
whichever is less, will be added to all accounts which
remain unpaid for more than thirty (30) calendar days
beyond the date of the invoice. Should there be any
dispute as payments to be made on a percent complete
basis to any portion of an invoice, the undisputed
portion shall be promptly paid.
3. CLIENT'S COOPERATION: To assist SE&I in
performing the Services, CLIENT shall (i) provide
SE&I with relevant material, data, and information in its
possession pertaining to the specific project or activity,
(ii) consult with SE&I when requested, (iii) permit
SE&I reasonable access to relevant CLIENT sites, (iv)
ensure reasonable cooperation of CLIENT's employees
in SE&I's activities, and (v) notify and report to all
regulatory agencies as required by such agencies.
4. CONFIDENTIALITY: In the course of
performing Services, to the extent that CLIENT
discloses to SE&I, business or technical information
that CLIENT clearly marks in writing as confidential or
proprietary, SE&I will exercise reasonable efforts to
avoid the disclosure of such information to others.
Nonetheless, CLIENT shall treat as confidential all
information and data furnished to it by SE&I in
connection with this Agreement including, but not
limited to, SE&I's technology, formulae, procedures,
<!J 2006 Shaw Environmental & Infrastructure, Inc.
Page 1 of4
processes, methods, trade secrets, ideas, inventions,
and/or computer programs; and CLIENT shall not
disclose such information to any third party.
Nothing herein is meant to prevent nor shall be
interpreted as preventing either party from disclosing
and/or using any information or data (i) when the
information or data are actually known to the receiving
party before being obtained or derived from the
transmitting party, (ii) when information or data are
generally available to the public without the receiving
party's fault at any time before or after it is acquired
from the transmitting party; (iii) where the information
or data are obtained or acquired in good faith at any
time by the receiving party from a third party who has
the same in good faith and who is not under any
obligation to the transmitting party in respect thereto;
(iv) where a written release is obtained by the receiving
party from the transmitting party; (v) three (3) years
from the date of receipt of such information; or (vi)
when required by process of law; provided, however,
upon service of such process, the recipient thereof shall
use reasonable efforts to notify the other party and
afford it an opportunity to resist such process.
CLIENT shall obtain SE&I's prior consent and
cooperation with the formulation and release of any
public disclosure in connection with this Agreement or
work performed hereunder, before issuing a news
release, public announcement, advertisement, or other
form of publicity.
5. RIGHT TO USE INFORMATION AND
DOCUMENTS: CLIENT may use any final reports of
findings, feasibility studies, industrial hygiene and
safety, engineering work or other work performed or
prepared by SE&I under this Agreement for its internal
purposes in connection with the project and/or location
indicated in the Services for which such work was
prepared, but SE&I reserves all other rights with respect
to such documents and all other documents produced in
performing the Services. CLIENT shall obtain prior
written consent from SE&I for any other use,
distribution, or publication of such reports or work
results. Unless otherwise expressly agreed to in writing,
nothing in this Agreement shall be interpreted to prevent
SE&I from application and use of any information
learned by it from the services (subject to the provisions
of Section 4). All reports will be delivered subject to
SE&I's then current limitations and disclaimers.
6, PATENTS AND CONFIDENTIAL
INFORMATION: SE&I shall retain all right and title
to all patentable and unpatentable inventions including
confidential know.how developed by SE&I hereunder.
However, SE&I hereby grants to CLIENT a royalty-
free, nonexclusive, nonassignable license as to such
SE&I CLIENT C12.A- L
inventions and know.how to use the same in any of
CLIENT's facilities. Information submitted to CLIENT
by SE&I hereunder is not intended nor shall such
submission constitute inducement and/or contribution to
infringe any patent(s) owned by a third party, and SE&I
specifically disclaims any liability therefor.
7. DELAYS AND CHANGES IN CONDITIONS:
If SE&I is delayed or otherwise in any way hindered or
impacted at any time in performing the Services by (i)
an act, failure to act or neglect of CLIENT or CLIENT's
employees or any third parties; (ii) changes in the scope
of the work; (iii) unforeseen, differing or changed
circumstances or conditions including differing site
conditions, acts of force majeure (such as fires, floods,
riots, and strikes); (iv) changes in government acts or
regulations; (v) delay authorized by CLIENT and
agreed to by SE&I; or (vi) any other cause beyond the
reasonable control of SE&I, then I) the time for
completion of the Services shall be extended based upon
the impact of the delay, and 2) SE&I shall receive an
equitable compensation adjustment.
8. INSURANCE: SE&I is presently protected by
Worker's Compensation Insurance as required by
applicable law and by General Liability and Automobile
Liability Insurance (in the amount of $1,000,000
combined single limit) for bodily injury and property
damage. Insurance certificates will be furnished to
Client on request. If the CLIENT requires further
insurance coverage, SE&I will endeavor to obtain said
coverage, and CLIENT shall pay any extra costs
therefor.
9. RISK ALLOCATION - CLIENT hereby agrees
that: (I) there are risks inherent to the Services, many of
which cannot be ascertained or anticipated prior to or
during the course of the Services; (2) due to the
inherently limited nature and amount of the data
resulting from environmental investigation methods,
complete analysis of conditions is not always possible,
and, therefore, conditions frequently vary from those
anticipated earlier; and (3) technology, methods,
accepted professional standards as well as law and
policy, are undefined and/or constantly changing and
evolving. In light of all of the foregoing and
considering SE&I's lack of responsibility for creating
the conditions requiring the Services, as a material
inducement to and consideration for SE&I's agreement
to perform the Services on the terms and at the price
herein provided for, CLIENT SPECIFICALLY
AGREES THAT SE&I'S LIABILITY SHALL BE
STRICTLY LIMITED AS PROVIDED IN SECTIONS
] 0 THROUGH 12 OF THIS AGREEMENT.
10. WARRANTY: SE&I is an independent contractor
and SE&I's Services will be performed, findings
Dbtained, and recommendations prepared in accordance
with generally and currently accepted professional
practices and standards governing recognized firms in
the area engaged in similar work. THIS WARRANTY
IS IN LIEU OF ALL OTHER WARRANTIES EITHER
EXPRESSED OR IMPLIED.
I I. INDEMNITIES: SE&I shall defend, indemnify
and hold harmless CLIENT from and against loss or
damage to tangible property, or injury to persons, to the
extent arising from the negligent acts or omissions or
willful misconduct of SE&I, its subcontractors, and their
respective employees and agents acting in the course
and scope of their employment; provided, however,
SE&I shall indemnify CLIENT from and against any
loss or damage in the handling or management of any
hazardous or radioactive material, or any pollution,
contamination, or release of hazardous or radioactive
materials, only to the extent resulting from SE&I's gross
negligence or willful misconduct. CLIENT shall
defend, indemnify and save harmless SE&I (including
its parent, subsidiary, and affiliated companies and their
officers, directors, employees, and agents) from and
against, and any indemnity by SE&I shall not apply to,
loss, damage, injury or liability arising from the (i) acts
or omissions of CLIENT, its contractors, and their
respective subcontractors, employees and agents, or of
third parties; (ii) any allegations that SE&I is the owner,
operator, manager, or person in charge of all or any
portion of a site addressed by the services, or arranged
for the treatment, transportation, or disposal of, or
owned or possessed, or chose the treatment,
transportation or disposal site for, any material with
respect to which Services are provided, and (iii) any
pollution, contamination or release of hazardous or
radioactive materials, including all adverse health
effects thereof, except for any portion thereof which
results from SE&I's gross negligence or willful
misconduct.
12. LIMITATIONS OF LIABILITY:
a. GENERAL LIMITATION - CLIENT'S SOLE
AND EXCLUSIVE REMEDY FOR ANY ALLEGED
BREACH OF WARRANTY BY SE&I SHALL BE TO
REQUIRE SE&I TO RE-PERFORM ANY
DEFECTIVE SERVICES. SE&I'S LIABILITY AND
CLIENT'S REMEDIES FOR ALL CAUSES OF
ACTION ARISING HEREUNDER WHETHER
BASED IN CONTRACT, WARRANTY,
NEGLIGENCE, INDEMNITY, OR ANY OTHER
CAUSE OF ACTION, SHALL NOT EXCEED IN THE
CUMULATIVE AGGREGATE (INCLUDING ANY
INSURANCE PROCEEDS) WITH RESPECT TO ALL
CLAIMS ARISING OUT OF OR RELATED TO THIS
AGREEMENT, WHATEVER MINIMUM AMOUNT
MAYBE REQUIRED BY LAW OR, IF NONE, THE
LESSER OF THE AMOUNT OF COMPENSATION
FOR SUCH SERVICES, OR $100,000 (WHICH
AMOUNT INCLUDES ANY FEES AND COSTS
INCURRED IN RE-PERFORMING SERVICES). THE
REMEDIES IN THIS AGREEMENT ARE CLIENT'S
SOLE AND EXCLUSIVE REMEDIES. ALL CLAIMS,
INCLUDING THOSE FOR NEGLIGENCE OR ANY
OTHER CAUSE WHATSOEVER SHALL BE
DEEMED WAIVED UNLESS SUIT THEREON IS
City of Augusta, GA cfL.I- L
Page 2 of 4 SE&I
FILED WITHIN ONE (I) YEAR AFTER THE
EARLIER OF (I) SE&I'S SUBST ANTIAL
COMPLETION OF THE SERVICES OR (2) THE
DATE OF SE&I'S FINAL INVOICE. FURTHER,
SE&I SHALL HAVE NO LIABILITY FOR ANY
ACTION INCLUDING DISCLOSURE OF
INFORMATION WHERE IT BELIEVES IN GOOD
FAITH THAT SUCH ACTION IS REQUIRED BY
PROFESSIONAL STANDARDS OF CONDUCT FOR
THE PRESERVATION OF PUBLIC HEALTH,
SAFETY OR WELFARE, OR BY LAW.
b. CONSEQUENTIAL DAMAGES: FURTHER
AND REGARDLESS OF ANY OTHER PROVISION
HEREIN, SE&I SHALL NOT BE LIABLE FOR ANY
INCIDENTAL, INDIRECT, OR CONSEQUENTIAL
DAMAGES (INCLUDING LOSS OF PROFITS,
DECLINE IN PROPERTY VALUE, REGULA TORY
AGENCY FINES, LOST PRODUCTION OR LOSS OF
USE) INCURRED BY CLIENT OR FOR WHICH
CLIENT MAY BE LIABLE TO ANY THIRD PARTY
OCCASIONED BY THE SERVICES OR BY
APPLICATION OR USE OF REPORTS OR OTHER
WORK PERFORMED HEREUNDER.
c. ALL CLAIMS AGAINST SE&I, ITS
INSURERS, EMPLOYEES, AGENTS,
DIRECTORS OR OFFICERS AND ALL OTHER
PERSONS FOR WHOM SE&I IS LEGALLY
LIABLE, SHALL BE DEEMED WAIVED
UNLESS AND TO THE EXTENT CLIENT SHALL
BRING SUIT THEREFOR AGAINST SE&I
WITHIN ONE (I) YEAR AFTER SE&I'S
SUBSTANTIAL COMPLETION OF THE
PARTICULAR SERVICES WITH RESPECT TO
WHICH THE CLAIM IS MADE
13. GOVERNING LAWS: This Agreement shall be
governed and construed in accordance with the laws of
the State in which the site to which the Services are
performed is located.
14. TERMINATION: Either party may terminate this
Agreement with or without cause upon twenty (20)
days' written notice to the other party. Upon such
termination, CLIENT shall pay SE&I for all Services
performed hereunder up to the date of such termination.
In addition, if CLIENT terminates, CLIENT shall pay
SE&I all reasonable costs and expenses incurred by
SE&I in effecting the termination, including, but not
limited to non-cancelable commitments and
demobilization costs.
15. ASSIGNMENT: Neither SE&I nor CLIENT shall
assign any right or delegate any duty under this
Agreement without the prior written consent of the
other, which consent shall not be unreasonably
withheld. Notwithstanding the foregoing, the Services
may be performed by any subsidiary or affiliate of The
Shaw Group Inc. or other person designated by SE&I,
and, SE&I may, upon notice to CLIENT, assign, pledge
or otherwise hypothecate the cash proceeds and
accounts receivable resulting from the performance of
any Services or sale of any goods pursuant to this
Agreement.
16. MISCELLANEOUS:
a. ENTIRE AGREEMENT, PRECEDENCE,
ACCEPTANCE MODIFICATIONS: The terms and
conditions set forth herein constitute the entire
understanding of the Parties relating to the provisions of
the Services by SE&I to the CLIENT. All previous
proposals, offers, and other communications relative to
the provisions of these Services by SE&I, oral or
written, are hereby superseded, except to the extent that
they have been expressly incorporated by reference
herein. In the event of conflict, the four pages of this
Agreement shall govern. CLIENT may accept these
terms and conditions by execution of this Agreement or
by authorizing SE&I to begin work. Any modifications
or revision of any provisions hereof or any additional
provisions contained in any purchase order,
acknowledgement or other document issued by the
CLIENT is hereby expressly objected to by SE&I and
shall not operate to modify the Agreement.
b. DISPUTES, ATTORNEY FEES - Any dispute
regarding this Agreement or the Services shall be
resolved first by exchange of documents by senior
management of the parties, who may be assisted by
counsel. Any thereafter unresolved disputes shall be
litigated in the state whose law governs under Section
I3 hereunder. In any litigation, the Prevailing Party
shall be entitled to receive, as part of any award or
judgment, eighty percent (80%) of its reasonable
attorneys' fees and costs incurred in handling the
dispute. For these purposes, the "Prevailing Party" shall
be the party who obtains a litigation result more
favorable to it than its last formal written offer (made at
least twenty calendar days prior to the formal trial) to
settle such litigation.
c. WAIVER OF TERMS AND CONDITIONS .
The failure of SE&I or CLIENT in anyone or more
instances to enforce one or more of the terms or
conditions of this Agreement or to exercise any right or
privilege in the Agreement or the waiver by SE&I or
CLIENT of any breach of the terms or conditions of this
Agreement shall not be construed as thereafter waiving
any such terms, conditions, rights, or privileges, and the
same shall continue and remain in force and effect as if
no such failure to enforce had occurred.
d. NOTICES - Any notices required hereunder may be
sent by orally confirmed US Mail, courier service (e.g.
FedEx), orally confirmed telecopy (fax) or orally
confirmed email (further confirmed by US Mail) to the
addresses set forth below.
e. SEVERABILITY AND SUR VI V AL . Each
provision of this Agreement is severable from the
Page 3 of 4 SE&I
City of Augusta, GA ill V
others. Should any provision of this Agreement be
found invalid or unenforceable, such provision shalI be
ineffective only to the extent required by law, without
invalidating the remainder of such provision or the
remainder of this Agreement.
it valid and enforceable consistent with the parties'
intent. For example, if the gross negligence standard in
Section II is unenforceable under an applicable "anti.
indemnity" statute, but a sole negligence standard is
enforceable, the sole negligence standard shalI be
automaticalIy substituted therefor. The terms and
conditions set forth herein shalI survive the termination
of this Agreement.
Further, to the extent permitted by law, any provision
found invalid or unenforceable shalI be deemed
automatically redrawn to the extent necessary to render
CLIENT and SE&I agree to the foregoing (INCLUDING THE LIMITATIONS ON LIABILITY IN SECTIONS 9-12)
and have caused this Agreement to be executed by their duly authorized representatives as of the date set forth below.
Executed on
oc~vt.11
,2009
CLIENT
Client Name: City of Augusta, GA
By (Sign):
LQJ~' !L-
'PIVSO S - f CDfc~jt1~\Jej...
Print Name:
Title: /;4. .#t -.{ 0 "'-
Address: 5 ] () Gtf. ('lrlVf" S V
It U- [,-l)')1i\-- ~ J rrq trf
Phone: ,?Ofo g- '2A 18"3/
Fax: 706 I'Ll jff') 5
E.mail: /l;f1Vyr;l. PnCr0 ~I~
SHAW ENVIRONMENTAL & INFRASTRUCTURE.INC.
.y(Sign) ~:. ~
Print Name: ef"1 e .s vdc :.!i
OlsfV"('c f MtH'lA' e ('
/It;t,~--I 08"-' /.1;.", S';/< 5'00
A/~ , etA i~~1:~'3-I.I12:!>
'71D -7?1-Q5'4!i"
E.mail: k~....J.l..6avVlJ~vse6hffw~rd.Gt>W1
,
Title:
Address:
Phone:
Fax:
Page 4 of 4 SE&I
City of Augusta, GAlliC