ERS/Fire/3854/Removal of underground storage tank-ERS, Inc.
•Carme•I Fire Department - 2015
Appropriation #43-501.00: P.O. #24273
Contract Not To Exceed $3.854.00
AGREEMENT FOR PURCHASE OF GOODS AND SERVICES
THIS AGREEMENT FOR PURCHASE OF GOODS AND SERVICES ("Agreement") is
hereby entered into by and between the City of Carmel, Indiana, acting by and through its Board
of Public Works and Safety ("City"), and ERS, Inc. an entity duly authorized to do business in
the State of Indiana ("Vendor").
TERMS AND CONDITIONS
1. ACKNOWLEDGMENT, ACCEPTANCE:
Vendor acknowledges that it has read and understands this Agreement, and agrees that its execution of
same constitutes its acceptance of all of the Agreement's terms and conditions.
2. PERFORMANCE:
City agrees to purchase the goods and/or services (the "Goods and Services") from Vendor using City
budget appropriation number 43-501.00 funds. Vendor agrees to provide the Goods and Services and to
otherwise perform the requirements of this Agreement by applying at all times the highest technical and
industry standards.
3. PRICE AND PAYMENT TERMS:
3.1 Vendor estimates that the total price for the Goods and Services to be provided to City hereunder
shall be no more than Three Thousand Eight Hundred Fifty Four Dollars ($3,854.00) (the
"Estimate"). Vendor shall submit an invoice to City no more than once every thirty (30) days detailing
the Goods and Services provided to City within such time period. City shall pay Vendor for such
Goods and Services within sixty (60) days after the date of City's receipt of Vendor's invoice detailing
same, so long as and to the extent such Goods and Services are not disputed, are in conformance
with the specifications set forth in Exhibit A are submitted on an invoice that contains the information
contained on attached Exhibit B, and Vendor has otherwise performed and satisfied all the terms
and conditions of this Agreement.
3.2 Vendor agrees not to provide any Goods and Services to City that would cause the total cost of the
Goods and Services provided by Vendor to City hereunder to exceed the Estimate, unless City has
previously agreed, in writing, to pay an amount in excess thereof.
4. WARRANTY:
Vendor expressly warrants that the Goods and Services covered by this Agreement will conform to
those certain specifications, descriptions and/or quotations regarding same as were provided to
Vendor by City and/or by Vendor to and accepted by City, all of which documents are incorporated
herein by reference, and that the Goods and Services will be delivered in a timely, good and
workmanlike manner and free from defect. Vendor acknowledges that it knows of City's intended use
and expressly warrants that the Goods and Services provided to City pursuant to this Agreement
have been selected by Vendor based upon City's stated use and are fit and sufficient for their
particular purpose.
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ERS. Inc.
Carmelr Fire Dephrtment - 2015
Appropriation #43-501.00: P.O. #24273
Contract Not To Exceed $3.854.00
5. TIME AND PERFORMANCE:
This Agreement shall become effective as of the last date on which a party hereto executes same ("Effective
Date"), and both parties shall thereafter perform their obligations hereunder in a timely manner. Time is of the
essence of this Agreement.
6. DISCLOSURE AND WARNINGS:
If requested by City, Vendor shall promptly furnish to City, in such form and detail as City may direct, a list of
all chemicals, materials, substances and items used in or during the provision of the Goods and Services
provided hereunder, including the quantity, quality and concentration thereof and any other information
relating thereto. At the time of the delivery of the Goods and Services provided hereunder, Vendor agrees to
furnish to City sufficient written warning and notice (including appropriate labels on containers and packing)
of any hazardous material utilized in or that is a part of the Goods and Services.
7. LIENS:
Vendor shall not cause or permit the filing of any lien on any of City's property. In the event any such lien is
filed and Vendor fails to remove such lien within ten (10) days after the filing thereof, by payment or bonding,
City shall have the right to pay such lien or obtain such bond, all at Vendor's sole cost and expense.
8. DEFAULT:
In the event Vendor: (a) repudiates, breaches or defaults under any of the terms or conditions of this
Agreement, including Vendor's warranties; (b) fails to provide the Goods and Services as specified herein;
(c) fails to make progress so as to endanger timely and proper provision of the Goods and Services and does
not correct such failure or breach within five (5) business days (or such shorter period of time as is
commercially reasonable under the circumstances) after receipt of notice from City specifying such failure or
breach; or (d) becomes insolvent, is placed into receivership, makes a general assignment for the benefit of
creditors or dissolves, each such event constituting an event of default hereunder, City shall have the right to
(1) terminate all or any parts of this Agreement, without liability to Vendor; and (2) exercise all other rights
and remedies available to City at law and/or in equity.
9. INSURANCE AND INDEMNIFICATION:
Vendor shall procure and maintain in full force and effect during the term of this Agreement, with an insurer
licensed to do business in the State of Indiana, such insurance as is necessary for the protection of City and
Vendor from all claims for damages under any workers' compensation, occupational disease and/or
unemployment compensation act; for bodily injuries including, but not limited to, personal injury, sickness,
disease or death of or to any of Vendor's agents, officers, employees, contractors and subcontractors; and,
for any injury to or destruction of property, including, but not limited to, any loss of use resulting therefrom.
The coverage amounts shall be no less than those amounts set forth in attached Exhibit C. Vendor shall
cause its insurers to name City as an additional insured on all such insurance policies, shall promptly provide
City, upon request, with copies of all such policies, and shall provide that such insurance policies shall not be
canceled without thirty (30) days prior notice to City. Vendor shall indemnify and hold harmless City from and
against any and all liabilities, claims, demands or expenses (including, but not limited to, reasonable attorney
fees) for injury, death and/or damages to any person or property arising from or in connection with Vendor's
provision of Goods and Services pursuant to or under this Agreement or Vendor's use of City property.
Vendor further agrees to indemnify, defend and hold harmless City and its officers, officials, agents and
employees from all claims and suits of whatever type, including, but not limited to, all court costs, attorney
fees, and other expenses, caused by any act or omission of Vendor and/or of any of Vendor's agents,
officers, employees, contractors or subcontractors in the performance of this Agreement. These
indemnification obligations shall survive the termination of this Agreement.
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ERS. Inc.
CarmdlFire Department - 2015
Appropriation #43-501.00: P.O. #24273
Contract Not To Exceed $3.854.00
10. GOVERNMENT COMPLIANCE:
Vendor agrees to comply with all federal, state and local laws, executive orders, rules, regulations and codes
which may be applicable to Vendor's performance of its obligations under this Agreement, and all relevant
provisions thereof are incorporated herein by this reference. Vendor agrees to indemnify and hold harmless
City from any loss, damage and/or liability resulting from any such violation of such laws, orders, rules,
regulations and codes. This indemnification obligation shall survive the termination of this Agreement.
11. NONDISCRIMINATION:
Vendor represents and warrants that it and all of its officers, employees, agents, contractors and
subcontractors shall comply with all laws of the United States, the State of Indiana and City prohibiting
discrimination against any employee, applicant for employment or other person in the provision of any Goods
and Services provided by this Agreement with respect to their hire, tenure, terms, conditions and privileges of
employment and any other matter related to their employment or subcontracting, because of race, religion,
color, sex, handicap, national origin, ancestry, age, disabled veteran status and/or Vietnam era veteran
status.
12. E -VERIFY
Pursuant to I.C. § 22-5-1.7 et seq., as the same may be amended from time to time, and as is incorporated
herein by this reference (the "Indiana E -Verify Law"), Vendor is required to enroll in and verify the work
eligibility status of its newly -hired employees using the E -Verify program, and to execute the Affidavit
attached herein as Exhibit D, affirming that it is enrolled and participating in the E -verify program and does
not knowingly employ unauthorized aliens. In support of the Affidavit, Vendor shall provide the City with
documentation indicating that it has enrolled and is participating in the E -Verify program. Should
Vendor subcontract for the performance of any work under and pursuant to this Agreement, it shall fully
comply with the Indiana E -Verify Law as regards each such subcontractor. Should the Vendor or any
subcontractor violate the Indiana E -Verify law, the City may require a cure of such violation and thereafter, if
no timely cure is performed, terminate this Agreement in accordance with either the provisions hereof or
those set forth in the Indiana E -Verify Law. The requirements of this paragraph shall not apply should the E -
Verify program cease to exist.
13. NO IMPLIED WAIVER:
The failure of either party to require performance by the other of any provision of this Agreement shall not
affect the right of such party to require such performance at any time thereafter, nor shall the waiver by any
party of a breach of any provision of this Agreement constitute a waiver of any succeeding breach of the
same or any other provision hereof.
14. NON -ASSIGNMENT:
Vendor shall not assign or pledge this Agreement, whether as collateral for a loan or otherwise, and shall not
delegate its obligations under this Agreement without City's prior written consent.
15. RELATIONSHIP OF PARTIES:
The relationship of the parties hereto shall be as provided for in this Agreement, and neither Vendor nor any
of its officers, employees, contractors, subcontractors and agents are employees of City. The contract price
set forth herein shall be the full and maximum compensation and monies required of City to be paid to
Vendor under or pursuant to this Agreement.
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ERS. Inc.
• Camel Fire Department - 2015
Appropriation #43-501.00: P.O. #24273
Contract Not To Exceed $3,854.00
16. GOVERNING LAW; LAWSUITS:
This Agreement is to be construed in accordance with and governed by the laws of the State of Indiana,
except for its conflict of laws provisions. The parties agree that, in the event a lawsuit is filed hereunder, they
waive their right to a jury trial, agree to file any such lawsuit in an appropriate court in Hamilton County,
Indiana only, and agree that such court is the appropriate venue for and has jurisdiction over same.
17. SEVERABILITY:
If any term of this Agreement is invalid or unenforceable under any statute, regulation, ordinance, executive
order or other rule of law, such term shall be deemed reformed or deleted, but only to the extent necessary to
comply with same, and the remaining provisions of this Agreement shall remain in full force and effect.
18. NOTICE:
Any notice provided for in this Agreement will be sufficient if it is in writing and is delivered by postage
prepaid U.S. certified mail, return receipt requested, to the party to be notified at the address specified
herein:
If to City: City of Carmel AND Douglas C. Haney, City Attorney
One Civic Square Department of Law
Carmel, Indiana 46032 One Civic Square
Carmel, Indiana 46032
If to Vendor: ERS, Inc.
8450 West Washington Street
Indianapolis, Indiana 46231
Notwithstanding the above, notice of termination under paragraph 19 hereinbelow shall be effective if given
orally, as long as written notice is then provided as set forth hereinabove within five (5) business days from
the date of such oral notice.
19. TERMINATION:
19.1 Notwithstanding anything to the contrary contained in this Agreement, City may, upon notice to
Vendor, immediately terminate this Agreement for cause, in the event of a default hereunder by
Vendor and/or if sufficient funds are not appropriated or encumbered to pay for the Goods and
Services to be provided hereunder. In the event of such termination, Vendor shall be entitled to
receive only payment for the undisputed invoice amount representing conforming Goods and
Services delivered as of the date of termination, except that such payment amount shall not exceed
the Estimate amount in effect at the time of termination, unless the parties have previously agreed in
writing to a greater amount.
19.2 City may terminate this Agreement at any time upon thirty (30) days prior notice to Vendor. In the
event of such termination, Vendor shall be entitled to receive only payment for the undisputed
invoice amount of conforming Goods and Services delivered as of the date of termination, except
that such payment amount shall not exceed the Estimate amount in effect at the time of termination,
unless the parties have previously agreed in writing to a greater amount.
19.3 The City may terminate this Agreement pursuant to Paragraph 11 hereof, as appropriate.
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ERS, Inc.
Carmel Fire Department - 2015
Appropriation #43-501.00; P.O. #24273
Contract Not To Exceed $3.854.00
20. REPRESENTATIONS AND WARRANTIES
The parties represent and warrant that they are authorized to enter into this Agreement and that the persons
executing this Agreement have the authority to bind the party which they represent.
21. ADDITIONAL GOODS AND SERVICES
Vendor understands and agrees that City may, from time to time, request Vendor to provide additional goods
and services to City. When City desires additional goods and services from Vendor, the City shall notify
Vendor of such additional goods and services desired, as well as the time frame in which same are to be
provided. Only after City has approved Vendor's time and cost estimate for the provision of such additional
goods and services, has encumbered sufficient monies to pay for same, and has authorized Vendor, in
writing, to provide such additional goods and services, shall such goods and services be provided by Vendor
to City. A copy of the City's authorization documents for the purchase of additional goods and services shall
be numbered and attached hereto in the order in which they are approved by City.
22. TERM
Unless otherwise terminated in accordance with the termination provisions set forth in Paragraph 19
hereinabove, this Agreement shall be in effect from the Effective Date through December 31, 2015 and shall,
on the first day of each January thereafter, automatically renew for a period of one (1) calendar year, unless
otherwise agreed by the parties hereto.
23. HEADINGS
All heading and sections of this Agreement are inserted for convenience only and do not form a part of this
Agreement nor limit, expand or otherwise alter the meaning of any provision hereof.
24. BINDING EFFECT
The parties, and their respective officers, officials, agents, partners, successors, assigns and legal
representatives, are bound to the other with respect to all of the covenants, terms, warranties and obligations
set forth in Agreement.
25. NO THIRD PARTY BENEFICIARIES
This Agreement gives no rights or benefits to anyone other than City and Vendor.
26. IRAN CERTIFICATION: Pursuant to I.C. § 5-22-16.5, the Vendor shall certify that, in signing this document,
it does not engage in investment activities within the Country of Iran.
27. ADVICE OF COUNSEL:
The parties warrant that they have read this Agreement and understand it, have had the opportunity to obtain
legal advice and assistance of counsel throughout the negotiation of this Agreement, and enter into same
freely, voluntarily, and without any duress, undue influence or coercion.
28. ENTIRE AGREEMENT:
This Agreement, together with any exhibits attached hereto or referenced herein, constitutes the entire
agreement between Vendor and City with respect to the subject matter hereof, and supersedes all prior oral
or written representations and agreements regarding same. Notwithstanding any other term or condition set
forth herein, but subject to paragraph 16 hereof, to the extent any term or condition contained in any exhibit
attached to this Agreement or in any document referenced herein conflicts with any term or condition
contained in this Agreement, the term or condition contained in this Agreement shall govern and prevail.
This Agreement may only be modified by written amendment executed by both parties hereto, or their
successors in interest.
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ERS, Inc.
Carmel Fire Department - 2015
Appropriation #43-501.00; Y.O. #24273
Contract Not To Exceed $3,854.00
IN WITNESS WHEREOF, the parties hereto have made and executed this Agreement as follows:
CITY OF CARMEL, INDIANA
by and through its Board of Public
Works and Safety
ERS, Inc.
By: By:
James Brainard, Presiding Officer
Date:
Mary Ann Burke, Member
Date:
gIm U/.9,
Authorized Signature
[2Jm _ Wt/Jd1
Printed Name
✓rt Pies
Title
Lori S. Watson, Member FID/TIN: 38-3G-09‘14/8
Date:
ATTEST:
Diana Cordray, IAMC, Clerk -Treasurer
Date:
Last Four of SSN if Sole Proprietor:
Date: [0-23"/S
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ERS, Inc.
Carmel Fire Department - 2015
Appropriation #43-501.00; Y.O. #24273
Contract Not To Exceed $3,854.00
IN WITNESS WHEREOF, the parties hereto have made and executed this Agreement as follows:
CITY OF CARMEL, INDIANA
by and through its Board of Public
Works and Safety
By:
Jijhes Brainard, Presiding Officer
Date:
Ma Ann
Date:
rke, Member
Lori S. Wat tmbe
Date: '1 1,-.1 ! 15
ATTEST:
Fliana Cordray, IAMC Cle I easurer
Date: 0/iS S
Isrcm.,.u,was... & rat s.ov.. nsv„Srav ,c. r
ERS, Inc.
By:
2-hiWk
Authorized Signature
09 44.4111)„
Printed Name
Title
Form: 38- 3c09'/5'B
Last Four of SSN if Sole Proprietor:
Date: (-23-/S'
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June 21. 2012
Mr. Bob VanVoorst
Maintenance Chief
City of Carmel Fire Department
2 Civic Square
Carmel, Indiana 46032
ERS, Inc.
Environmental Remediation Services, Inc.
"Serving Midwest Industry and Environment"
RE: Proposal to decommission One 500 gallon Diesel Underground Storage Tank.
Carmel, Indiana
ERS Proposal #QIN12-06-0082
Dear Mr. VanVoorst:
Thank you for allowing Environmental Remediation Services, Inc. (ERS) the opportunity to
prepare this proposal. We appreciate your interest and assure you that we are committed to
provide a professional and quality service. The following text provides a description of the
service's to be provided.
SCOPE OF WORK
The scope of work associated to this project consists of the following items:
1) Excavate to clean and remove one 500 gallon non -hazardous, steel, unlined
underground storage tank.
2) Collect and submit for analysis bottom and side wall samples.
3) Backfill the excavation with stockpiled soil and compact with the bucket of the
excavator.
4) Provide approximately 3.5 tons of Pit run to complete the backfill.
5) Transport and dispose of fuel and liquid/ tank bottom sludge.
6) Transport and dispose of decommissioned tank.
7) Provide UST closure report.
ERS, Inc.
4010 Option Pass
Fon Wayne. IN 46818
24 Hour(260)489-7062
Fax (260)389-5752
Corporate Once
ERS, Inc.
8450 Nest Washiniaon Street
Indianapolis_ IN 462231
24 Hour (317) 2247-6119
Fax 1317) 247-6126
ERS of Ohio, Inc.
519 Ordway Avenue
Bowling Orem OH 43402
24 Hour (419)354-0515
Fax (419) 354-0530
www.ersinc.net
ERS of Illinois, Inc.
2270 Cornell Avenue
4onteomery, 11.60538
24 Hour (630) 806-4090
Fax (610) 896-4099
EXHIBIT A
/66
ERS, Inc.
Environmental Remediation Services. Inc.
"ServingMidwest Industry and Environment
EXECUTION
ERS will utilize a two man crew equipped with a Mini excavator, and a tri -axle dump truck.
ERS will assist the city of Carmel Fire dept in the laying out of the tank excavation. A vacuum
tank truck will be used to remove product from tank, recovered product will be transported off
site for recycling / disposal. The operator will then excavate to the top of the tank to expose
an access point. The tank will then be decommissioned in accordance to the American
Petroleum Institute (API) guide lines and standards, accepted industries practices. A
degreasing agent will be used to reduce the flammability hazards of the tank. The degreaser
will be introduced through the fill port using a 3000psi power washer. After degreasing the
tank it will be rinsed and all free liquids recovered with a vacuum truck. Recovered waste will
be transported offsite for disposal. ERS will backfill the excavation with stockpiled soil and 3.5
tons of imported fill. The backfill will be compacted with the excavator bucket and graded
evenly to promote positive drainage.
Cost Table
Description
Quantity
Unit
Standard
Rate
Total
Mobilization and
Demobilization
1
LS
$300.00
$300.00
Vacuum truck
7
HR
$60.00
$420.00
Tank
Decommissioning/
Cleaning
1
LS
$2206.00
$2206.00
Sampling and
Closure report
1
Each
$778.00
$778.00
Drum Disposal
1
Each
$150.00
$150.00
Soil disposal
0
Per ton
$31.85
$0
Transportation
0
HR
$75.00
$0
Total
$3854.00
CONTINGENCIES
1) Fill material does not require analytical testing.
2) This price includes ERS providing 3.5 tons of Pit run for backfill. All other backfill will
be stockpiled material.
3) Proposal is valid for 60 days.
4) Compaction testing not required.
ERS, Inc.
4010 Option Pass
Fon Wayne. IN 46818
24 Hour (260)489-7062
Fax (260) 489-5752
Corporate Once
ERS, Inc.
8450 West Washington Street
Indianapolis_ IS 46231
24 '1our(317) 747-6119
Fax (317) 247-6126
ERS of Ohio, Inc.
519 Ordway Avenue
Howling Green 01143402
24 Hour (419)354-0515
Fax (419) 354-0530
www.ersinc.net
ERS of Illinois, Inc.
2270 Connell Avenue
Montgomery. IL 60538
24 Hour (630) 896-4090
Fax (630) 896-4099
EXI-11B1T
2046
ERS, Inc.
Environmental Remediation Services, Inc.
"Serving Midwest Industry and Environment"
ERS SERVICE AGREEMENT
Client: On this day of , the parties,
(Date) (Month) (Year) (Client Name)
a(n) corporation, with an office at
(State) (Address)
(hereinafter referred to as "Client") and Environmental Remediation Services, Inc., an Indiana corporation with its
principal offices at 4010 Option Pass, Fort Wayne, IN 46818, including branch offices doing business as ERS of
Illinois, Inc. in Montgomery, Illinois, and ERS of Ohio, Inc. in Bowling Green, Ohio, and ERS, Inc., in Indianapolis,
Indiana (hereinafter referred to as "ERS"), have agreed as follows:
1. Description of Services:
Client initial one:
(initials) Long-term: ERS will provide Environmental Consulting and Contracting services including, but not limited
to, 24-hour Emergency Spill Response Services as requested and directed by authorized personnel of Client. This Agreement
will remain in effect until terminated in accordance with section 15 of this Agreement.
OR
(initials) Project specific: This Agreement applies only to services provided by ERS and requested by client involving
the following specific emergency response or project listed below:
Description:
Location:
The Client authorizes the above-described services and agrees to pay ERS according to its current Schedule of Fees unless
agreed upon and written otherwise. Accounts thirty (30) days past due are subject to applicable Mechanics Lien Laws. The
above described services will be provided on a time and materials basis unless otherwise agreed upon in writing.
GENERAL CONDITIONS
2. Invoices
Environmental Remediation Services, Inc. (ERS) will submit invoices to Client periodically and a final invoice upon
completion of the project. Invoices will show charges for labor, equipment, and materials. Each invoice is due upon receipt
and is past -due thirty (30) days from invoice date (Net 30). Client agrees to pay a finance charge of I 1/2% per month (18%
annual percentage rate), or the maximum allowed by law, on past due accounts. Any attorney's fees or other cost incurred in
collecting any delinquent amount owed to ERS by Client shall be paid by Client. Any purchases or subcontracted services
required in the performance of Client's work will be subjected to a twenty (20) percent handling fee for less than twenty-five
hundred (2500) dollars and a fifteen (15) percent handling fee for Greater than twenty-five hundred (2500) dollars.
3. Hazardous Substances and Constituents
Client agrees to advise ERS upon execution of this Service Agreement of any hazardous substances or any condition existing
in, on, or near the site presenting a potential danger to human health, the environment, or equipment. Client agrees to provide
continuing information as it comes available to the attention of Client in the future, By virtue of entering into this Service
Agreement or providing services hereunder, ERS does not assume control of or responsibility for the site or the person in
charge of the site, or undertake reporting to any federal, state, or local public agencies any conditions at the site that may
Initial
ERS, Inc.
4010 Option Pass
Iron Wayne, IN 46818
24 Hour (260)489-7062
Fax (260)489-5752
Corporate Office
ERS, Inc.
5747 West Raymond Street
Indianapolis, IN 46241
24 Ilour (317)247-61 19
Fax (317)247-6126
ERS of Ohio, Inc.
519 Ordway Avenue
Bowling Green, OH 43402
24 Hour (419) 354-0515
Fax (419)354-0530
www.ersinc.net
ERS of Illinois, Inc.
2272 Cornell Avenue
Montgomery, IL 60538
24 Hour (630) 896-4090
Fax (630)896-1099
EXHIBIT A
present a potential danger to public health and safety, or the environment. Client agrees to notify the appropriate federal, state,
or local public agencies as required by law, or otherwise disclose, in a timely manner, any information that may be necessary to
prevent any danger to health, safety, or the environment. In connection with hazardous waste, Client agrees to the maximum
extent permitted by law to defend, hold harmless and indemnify ERS from and against any and all claims and liabilities
resulting from:
a) Client's violation of any federal, state, or local statute, regulation or ordinance relating to the disposal of
hazardous substances or constituents;
b) Client's undertaking or arrangement for the handling, removal, treatment, storage, transportation, or
disposal of hazardous substances or constituents found or identified at the site;
c) Changed conditions or hazardous substances or constituents introduced at the site by Client or third persons
before or after the completion of services herein.
d) Allegations that ERS is an arranger, generator, operator, treater of, Storer, or disposer under the Resource
Conservation and Recovery Act (RCRA) of 1976 as amended or any other similar federal, state, or local
regulation or law.
4. Discovery of Unanticipated Product, Waste, or Hazardous Substances
Product, waste, or hazardous substances may exist at a site where there is no reason to believe they should be
present. ERS and Client agree that the discovery of unanticipated product, waste, or hazardous substances
constitutes a changed condition mandating a renegotiation of the scope and cost of work or termination of services.
ERS and Client agree that the discovery of product, waste, or hazardous substances may make it necessary for ERS
to take immediate measures to protect health and safety. Client agrees to compensate ERS for its additional work.
Client also recognizes there is a risk that sampling, through an unknown contaminated zone, may result in spread of
contamination to an aquifer, underground stream, or hydrous body not previously contaminated and in turn
spreading product, waste, or hazardous substances off-site. Client recognizes nothing can be done to prevent such
an occurrence because such sampling is a necessary aspect of work which ERS will perform for Client's benefit.
Client waves any claim against ERS and agrees to defend, indemnify, and save ERS harmless from any claim or
liability for injury or loss of any type arising from ERS's discovery of unanticipated product, waste, or hazardous
substances exempting liability arising directly from the negligence of ERS.
5. Right -of -Entry
Unless otherwise agreed in writing, Client will furnish right -of -entry for ERS to perform the scope of work. ERS
will take reasonable precautions to reduce damage to property. However, it is understood by Client that in normal
course of work, some damage may occur. Client recognizes that it is Clients responsibility to inform the property
owner of the discovery of unanticipated or suspected product, waste, or hazardous substances.
6. Contaminated Equipment
All laboratory and field equipment contaminated in perforating our services and which cannot be reasonably
decontaminated shall become the property and responsibility of Client. All such equipment shall be delivered to
Client or. using a manifest signed by Client as the generator, ERS will have such equipment transported to a location
selected by Client for final disposal. Client agrees to pay all costs associated with the storage, transportation and
disposal of designated equipment. Client agrees to pay the fair market value for any such equipment which cannot
reasonably be decontaminated.
7. Utilities and Subsurface Structures
Client agrees to be solely responsible for designating the location of all utility lines and subsurface structures within
the property lines of the project site. ERS will not be liable for damage to subsurface structures (pipes, tanks, wires,
conduits, etc.) which are not properly located on or off-site.
8. Job Site
Client agrees that contractors and subcontractors engaged by Client will be required by Client to assume sole and
complete responsibility for job site conditions during completion of the project, including safety of persons and
property. Client further agrees to indemnify and hold ERS harmless from any and all liability in connection with the
performance of work during completion of the project, exempting liability arising directly from the negligence of
ERS.
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9. Additional Work or Changes
Additional work or changes to the agreement may be made in writing by the Client, with our agreement, for which
the Client will agree to pay, in addition to the contract price, a price to be agreed upon at the time of the written
change. Said written change order must be signed by both parties prior to the commencement of said additional
work. Unless otherwise specifically agreed, payments for the additional work shall be due in full upon the
completion of the original contract.
10. Reports
Client will furnish or cause to be furnished such reports, data, studies, plans, specifications, documents and other
information deemed necessary by ERS for proper performance of our services. ERS may rely upon Client provided
documents in performing the services required under this agreement; however, ERS assumes no responsibility or
liability for their accuracy. Client -provided documents will remain the property of Client. All documents, including
but not limited to drawings, specifications, reports, boring logs, field notes, laboratory test data, calculations and
estimates, prepared by ERS as instruments of service pursuant to this Service Agreement, shall be the sole property
of ERS. Client agrees that all documents of any nature furnished to Client or Client's agents or designees, if not
paid for, will be returned upon demand and will not be used by Client for any purpose whatsoever. Client further
agrees that under no circumstances shall any documents produced by ERS pursuant to this Service Agreement be
used at any location or for any project not expressly provided for in this Service Agreement without the prior written
permission of ERS. If Client uses all or any portion of ERS's work on another project without our prior written
permission, Client shall to the maximum extent permitted by law save ERS harmless from any and all claims arising
from such unauthorized reuse. Further, no part of any document ERS delivers to Client shall be reproduced or
distributed, whether for advertising or any other propose, without our prior written consent. Any such reproduction
or distribution shall be at Client's sole risk and without liability or legal exposure to ERS.
11. Warranty
Professional services provided by ERS will be performed, findings obtained, and recommendations prepared in
accordance with generally accepted scientific and engineering principles and practices. There are no other
warranties, expressed or implied. ERS shall not be responsible for any damages resulting from the work performed
under the proposal, or for the failure of materials supplied in connection with the proposal, whether such damages
are direct, indirect or consequential, unless caused by the negligence of ERS.
In the event that any third party brings suit or claim for damages against ERS alleging exposure to or damage from
material, elements or constituents at or from Client's facility before, during, or after the services of this Service
Agreement, which is alleged to have resulted in or caused disease or any adverse health condition to any third party
or resulting in cost for remedial action, un -inhabitability of the property, or other property damage, and were not
caused by the negligence of ERS, then: Client agrees to defend ERS in any such suit or claim and pay on our behalf,
any judgment resulting against ERS, including any interest thereon. Further, Client with our concurrence will select,
hire and pay an attorney to defend any such suit or claim, will pay Court cost for which ERS may be liable in any
such suit and will bear and pay litigation expenses client incurs in providing a reasonable and professional defense
which will be provided by client according to prevailing local standards. Client will have the right to investigate,
negotiate and settle, with our concurrence, any such suit or claim, and ERS will cooperate in the defense of any such
suit or claim.
Client recognizes that site conditions may vary from those encountered in borings, and explorations and that
information and recommendations developed by ERS are based solely on the information available to it. An
exploration, survey, and analysis associated with the work will be performed by ERS solely to fulfill the purpose of
this Service Agreement. ERS is not responsible for the interpretations by others of the information developed.
Client agrees to limit our liability under the above standard care to the Client and all parties claiming under or
through the Client on the project arising from professional acts, errors or omissions, to an amount not to exceed
$50,000.00 or the amount covered by ERS's applicable liability insurance, whichever is greater.
12. Whole Agreement and Disputes
This agreement and the documents attached hereto and which are incorporated herein constitute the entire Service
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agreement between the parties and cannot be changed except by written instrument signed by both the parties.
Client agrees that no other terms and conditions, understandings, or purchase orders may modify, vary, or
supplement this Service Agreement without the authorized written consent of an officer of ERS and authorized
representative of Client.
13. Severability
If any part of this Service Agreement is judged illegal, invalid, or unenforceable for any reason, such judgment shall
not affect the legality, validity, or enforceability of this Service Agreement as a whole or of any part of this Service
Agreement not so judged.
14. Jurisdiction and Venue
Client and ERS agree that this Agreement shall be governed by the laws of the State of Indiana. Any lawsuit arising
out of this Agreement, regardless of who files the suit, shall be filed in Allen County, Indiana Circuit or Superior
Court.
15, Termination
This Service Agreement shall take effect upon the date of signing and is to continue in effect and govern all
transactions between parties until canceled or terminated by either party. It is agreed that either party can, with or
without cause, cancel this Service Agreement within ten (10) days written notice to the other party. In the event of
termination, Client shall be responsible for payment of services rendered through the date of termination at ERS's
current Standard Rates.
By signing below, Client and ERS attest to having read and understood the foregoing terms and conditions and agree
to be bound by them.
Client:
Authorized Signature:
Printed Name:
Title:
Date:
Environmental Remediation Services, Inc.
Authorized Signature:
Printed Name:
Title:
Date:
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