{*} The redacted portions indicated by this symbol are the subject of a
confidential treatment request and have been filed separately with the
Securities and Exchange Commission.
EXECUTION COPY
MASTER ENVIRONMENTAL MANAGEMENT SERVICES AGREEMENT
THIS AGREEMENT is made and entered into on this day of April 24th,
2000, effective as of the 1st day of January, 2000, by and between Atlanta Gas
Light Company ("AGLC"), a Georgia corporation, ThermoRetec Consulting
Corporation ("ThermoRetec"), a Delaware Corporation, and solely for purposes of
Article 6 hereof, ThermoRetec Corp., a Delaware corporation.
RECITALS
WHEREAS, AGLC, on behalf of itself and as agent for certain of its
affiliates, manages the environmental investigation and remediation of certain
properties where manufactured gas plants ("MGPs") formerly operated and at which
certain investigation and clean-up activities ("Remediation Activities") are now
or may be necessary or appropriate; and
WHEREAS, AGLC desires to retain ThermoRetec to perform environmental
management services at such sites and other duties as assigned by AGLC from time
to time, and ThermoRetec is willing to provide such services as more
specifically described below; and
WHEREAS, the parties acknowledge that their mutual objective is to
perform, or cause to be performed, such environmental management services in a
sound and cost-effective manner that is in compliance with all applicable legal
requirements and that reduces or eliminates the need for such services as
expeditiously as practicable; and
WHEREAS, AGLC has required as a condition to entering into this
Agreement that ThermoRetec Corp. be a party to this Agreement for the limited
purpose of providing indemnification under Article 6 below, and ThermoRetec
Corp. has agreed to be a party to this Agreement solely for such purpose;
NOW THEREFORE, in consideration of the premises and the material
covenants and agreements hereinafter set forth, and other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, and
intending to be legally bound hereby, AGLC and ThermoRetec agree as follows:
1. Term. The effective date of this Agreement shall be January 1, 2000
("Effective Date"). Subject to the early termination as set forth in Section 8,
this Agreement shall expire on the close of business on January 31, 2005 (the
"Initial Term"), or such later date as the parties may agree; provided, however,
that upon sixty (60) days prior written notice, AGLC may extend the term of this
Agreement as reasonably necessary to complete the Remediation Activities.
2. Scope of Services.
2.1 The Services. Subject to the terms and conditions of this
Agreement, ThermoRetec is being retained to provide the environmental management
services ("Services") as more specifically set forth in Exhibit 1 attached
hereto for the real properties listed in Exhibit 2 attached hereto ("Sites"),
and ThermoRetec hereby agrees to perform such Services. Additional Sites and
Services may be added to or removed from Exhibits 1 or 2 (as applicable) at any
time by mutual agreement of the parties. In the event that such Sites or
Services are added or deleted, the Annual Budget (as defined in Section 3.1)
will be adjusted by a mutually agreed upon amount. AGLC agrees to use its best
efforts to ensure completeness of, access to, and availability of files, data,
records, personnel and systems for the performance by ThermoRetec of the
Services.
2.2 Change Orders. AGLC reserves the right, by written notice to
ThermoRetec, to make changes in the Services so long as such changes do not
materially expand the scope of the Services described herein. ThermoRetec shall
proceed with the Services, as changed, immediately after receipt of said notice.
If such changes cause a material increase or decrease in the cost of performing
the Services or time of performance, an equitable adjustment in the Annual
Budget and/or schedule shall be made by AGLC within 30 days after the giving of
such notice. If the parties cannot agree to the equitable adjustment to either
the price and/or the schedule, then the party seeking relief may do so under the
provisions of Article 16.
2.3 Additional Services. (a) AGLC may from time to time during
the term of this Agreement request that ThermoRetec perform a service that
is outside the scope of the Services ("Additional Services"). Upon
receipt of such a request from AGLC, ThermoRetec shall provide AGLC with:
(i) a written description of the work ThermoRetec anticipates
performing in connection with such Additional Services, if
any;
(ii) a schedule for commencing and completing such Additional
Services;
(iii) ThermoRetec's prospective charges for such Additional
Services, including a detailed breakdown of any applicable
charges, and any proposed additional or modified terms and
conditions; and
(iv) an estimate of the human resources necessary to provide the
Additional Services.
(b) ThermoRetec shall not begin performing any Additional Services
until AGLC has provided ThermoRetec with authorization to perform the Additional
Services. If AGLC authorizes ThermoRetec to provide the Additional Services,
then the parties shall execute a change order, which shall incorporate by
reference the terms of this Agreement and set forth the additional terms and
conditions applicable to the provision of such Additional Services.
2.4 MGP Strategic Plan. Prior to the date hereof, ThermoRetec has
prepared and submitted to AGLC for its review a comprehensive MGP strategic
plan. Within five business days after the date on which this Agreement is
entered into, the parties will mutually agree upon a comprehensive MGP strategic
plan (the "Plan"), which shall describe (A) the overall goals of the Services to
be provided by ThermoRetec hereunder, (B) a schedule for the completion of the
Services on a Site by Site basis, (C) a software tool for collaborative
communications between the parties, (D) a master schedule and detailed budget
for the period from January 1, 2000 through June 30, 2000 (the "Initial Year
Budget"), and (E) a plan for communications with external stakeholders. Except
as otherwise agreed by AGLC, ThermoRetec will comply with the schedule for the
completion of the Services and the plan for communications with stakeholders
contained in the Plan.
3. Pricing and Payment Terms.
3.1 Annual Budget. At least 90 days prior to the end of the period
covered by the Initial Year Budget and at least 90 days prior to the end of each
12-month period thereafter, ThermoRetec will submit to AGLC a detailed budget
for the Services for such upcoming 12-month period, which shall reflect costs
which are anticipated to be incurred for performance of the Services at each
Site and for any Additional Services requested by AGLC. Each budget shall also
include all assumptions upon which ThermoRetec relies. Within 30 days of receipt
of the budget, AGLC shall review and comment on the same, and ThermoRetec shall
promptly submit a revised draft of the budget to AGLC. If the parties'
respective Program Directors (as defined in Section 5.1) cannot agree upon the
budget within 60 days of AGLC's receipt thereof, then any unresolved issues
shall be submitted to the Management Committee (as defined in Section 5.3) for
resolution. The budget, after modifications are made thereto and after approval
thereof by AGLC and acceptance by ThermoRetec, shall constitute the "Annual
Budget". The Annual Budget shall not be modified unless a Site or Service is
added or deleted pursuant to Section 2, a change order for Additional Services
(as described in Section 2.3) is issued or a material change in Site conditions
or Service requirements has occurred. All approved modifications to the Annual
Budget shall be documented in the form of a change order.
3.2 Compensation. In consideration for ThermoRetec's prompt, faithful
and complete performance of this Agreement to the satisfaction of AGLC and
subject to the conditions precedent to and as described in this Agreement, AGLC
will pay or reimburse ThermoRetec an amount equal to the total of (a) the actual
costs ("Actual Costs") of the Services as defined in Exhibit 4 and (b) the
Aggregate Performance Fees described in Exhibit 3. Actual Costs shall be the
actual costs incurred by ThermoRetec plus a provision for indirect costs based
on the provisional burden rates approved by the Gas Research Institute ("GRI")
and confirmed by audit by GRI at the end of each fiscal year. If GRI no longer
provides such audit of ThermoRetec's indirect costs, ThermoRetec shall continue
to use the GRI-established cost principles to develop provisional rates for the
following fiscal year. Such rates are subject to audit by a firm of certified
public accountants designated by ThermoRetec and acceptable to AGLC. Any cost of
said provisional rate review or audit will be a ThermoRetec expense. The initial
performance fee for the AGLC-Lead Sites (as identified on Exhibit 1) has been
estimated and shall be set forth in the Initial Year Budget.
3.3 Description of Actual Costs. Actual Costs consist solely of
the types of costs incurred in the performance of the Services
that meet the definitions set forth in Exhibit 4. The
following are not Actual Costs:(A) costs, services and
expenses generated by any of ThermoRetec's officers,
supervisory personnel or employees related to legal (except
for negotiation of agreements with subcontractors to perform a
portion of the Services), labor relations, insurance and tax,
and all other related expenses required to maintain and
operate ThermoRetec's offices other than any costs and
expenses for operating any field office directly associated
with one or more Sites. Costs and expenses incurred by
ThermoRetec officers related to the duties of the Management
Committee are considered Actual Costs;
(B) costs incurred as a result of the negligence or
willful misconduct of ThermoRetec and/or its
agents, subcontractors, suppliers or employees; and
(C) any other costs not directly related to, and reasonably
and necessarily incurred in ThermoRetec's performance of, the
Services.
3.4 Invoices; Payment. ThermoRetec shall submit to AGLC within 20 days
after the end of each calendar month an invoice for the Actual Costs incurred in
the previous month. AGLC shall reimburse ThermoRetec for the amount of the
monthly invoice (except for any Disputed Items (as defined in Section 3.6)
reflected thereon), plus the corresponding ThermoRetec fee earned in accordance
with Exhibit 3 within 30 days of receipt. In addition to the monthly invoice and
under separate cover, ThermoRetec shall provide AGLC with a certified listing of
all ThermoRetec internal labor costs and third-party vendor invoices (Labor and
ODC Reports), together with a summary of the Actual Costs for each Site.
Undisputed invoiced amounts not paid within 30 days after receipt shall accrue
interest at the rate of 1% per month on any unpaid balance. ThermoRetec shall
have the right to stop work if undisputed amounts on invoices are not paid
within 60 days from the date of receipt by AGLC.
3.5 Subcontractor Waivers. To the extent ThermoRetec engages
subcontractors to perform Services, as a condition of payment of any monthly
invoice reflecting final payment by ThermoRetec to such subcontractors,
ThermoRetec shall furnish a general release of all claims and final lien waivers
from such subcontractor to AGLC in such form and substance as is reasonably
acceptable to AGLC.
3.6 Disputed Amounts. AGLC shall be entitled to dispute any item on an
invoice that it believes deviates from the Services which ThermoRetec was to
perform, the Annual Budget or the requirements of this Agreement (collectively
"Disputed Items"). The disputed amount will be deducted from the invoice, and
the undisputed portions of the invoice will be paid in accordance with Section
3.4. The Disputed Items shall be subject to resolution pursuant to the
procedures described in Section 16.1.
3.7 Setoff. Payments otherwise due ThermoRetec from AGLC may be
withheld by AGLC, without payment of interest, on account of Services not
performed, defective Services performed and not remedied by ThermoRetec, unpaid
labor or materials bills, or unpaid claims of any kind agreed to be paid by
ThermoRetec. ThermoRetec agrees to defend, indemnify and hold AGLC harmless from
any claims, demands, liabilities and damages arising from any such withheld
payment. If and when the cause or causes for withholding payments are remedied
or removed without cost to AGLC, and satisfactory evidence of such remedy has
been presented to AGLC, the withheld payment will be promptly made by AGLC to
ThermoRetec. If ThermoRetec fails to remedy such cause within 30 days after
written notice from AGLC, AGLC may remedy the cause and deduct the cost of it
from the amount due ThermoRetec; provided, however, AGLC is not obligated to pay
any bills of, or claims against ThermoRetec from payments withheld, but may do
so at its sole discretion.
3.8 Fees Beyond the Initial Term. If the term of this Agreement is
extended beyond the Initial Term, AGLC shall, unless otherwise specified in this
Agreement, continue to pay ThermoRetec in accordance with the provisions of this
Article 3 or as the parties may otherwise agree.
4. Performance Standards, Warranties and Responsibilities.
4.1 Time. Time is of the essence. In particular, ThermoRetec
acknowledges that corrective action plans must be approved for each of the Sites
by January 5, 2001, and that soil remediation must be completed at each of the
Sites by January 5, 2005. ThermoRetec shall perform all Services in strict
accordance with the requirements, technical specifications and, except for any
delays caused by AGLC, schedules set forth in, contemplated by or arising from
this Agreement, the Plan, and any applicable Governmental Requirements and
Orders (as defined in Section 4.4). To the extent applicable, ThermoRetec
acknowledges and agrees that the timing of the performance of Services may be
dictated by the terms of Governmental Requirements and Orders, and ThermoRetec
agrees to obtain a copy of all such Governmental Requirements and Orders
applicable to the Sites and to comply with all deadlines and/or other schedule
requirements set forth therein. If ThermoRetec believes that AGLC's acts or
omissions are causing or are likely to cause ThermoRetec to fail or be unable to
perform the Services in accordance with this Agreement, it shall promptly notify
AGLC in writing of such fact, which notice shall state the acts or omissions of
AGLC which are or are likely to cause such failure.
4.2 Technical Skills. ThermoRetec understands and acknowledges that the
Services performed hereunder may involve hazardous or toxic substances, wastes
and laws, regulations and government agency policy and guidance documents
related thereto. ThermoRetec represents and warrants that it is technically,
physically, financially and legally ready, willing and able to perform the
Services hereunder and that it is familiar with and knowledgeable about the
applicable laws, regulations and government agency policy and guidance documents
to the extent necessary to carry out its duties in a professional, complete and
competent manner and in accordance with such applicable laws, regulations, and
government agency policy and guidance documents.
4.3 Authority. Each party hereby represents and warrants to the other
party as follows (subject, in the case of AGLC, to the approval of the Board of
Directors of AGL Resources Inc.):
(A) that it has all requisite corporate power and
authority to enter into, and fully perform pursuant
to, this Agreement;
(B) that the execution, delivery and performance of this
Agreement have been duly and properly authorized by
all requisite corporate action on its part; and
(C) that this Agreement has been duly executed and delivered
by such party.
4.4 Applicable Law. ThermoRetec warrants that all Services shall comply
with all applicable federal, state and local laws, regulations, ordinances,
orders, codes, standards, permits and licenses, in each case as the same are
amended from time to time (collectively, the "Governmental Requirements and
Orders"). ThermoRetec agrees to obtain all permits, consents and approvals
necessary or appropriate to perform the Services in compliance with the
Governmental Requirements and Orders, except for those permits, consents and
approvals AGLC or its affiliates are specifically required to obtain by virtue
of the terms of this Agreement or by Governmental Requirements and Orders, and
that if any requests for such permits, consents or approvals are denied, to use
its best efforts, after further consultation with AGLC, to obtain such permits,
consents or approvals.
4.5 Governmental Orders. ThermoRetec expressly acknowledges, agrees and
warrants to comply with the terms of any specific consent order, unilateral
order, governmental order, judicial decree, permit or other governmental
directive pursuant to which AGLC is contracting for the Services hereunder,
including that certain Environmental Response Cost Recovery Rider which was
initially adopted by the Georgia Public Service Commission on September 1, 1992
(as amended) (the "Rider").
4.6 Engineering Skills. ThermoRetec warrants that all Services
performed hereunder shall be (A) conducted in a manner consistent with the
generally accepted level of care and skill ordinarily exercised by professional
engineers, remediation contractors and other professionals performing services
of a similar nature, taking into account standards, technology, laws and
requirements existing at the time the Services are performed, (B) safely,
lawfully, timely and properly performed, and (C) in conformity with the
requirements of this Agreement.
4.7 Reliance. ThermoRetec acknowledges and agrees that (A) AGLC is
relying upon ThermoRetec's special and unique abilities and the accuracy,
competence and completeness of ThermoRetec's Services and (B) the Services
performed by ThermoRetec will be relied upon by AGLC to satisfy Governmental
Requirements and Orders.
4.8 Records. To the extent the Services performed require laboratory
analysis, sampling or field services of any kind, ThermoRetec and its
subcontractors shall maintain complete copies of records of the chain of custody
and control of all hazardous and/or waste materials handled, transported and/or
disposed of as a result of ThermoRetec's and its subcontractors' activities
under this Agreement, and ThermoRetec shall deliver all such records to AGLC in
accordance with instructions from AGLC. ThermoRetec and its subcontractors shall
not be considered the generator of any pre-existing waste, nor will ThermoRetec
or its subcontractors take title to any waste produced as result of providing
Services under this Agreement. ThermoRetec shall have authority to sign waste
manifests for any materials removed from a Site as agent for AGLC.
4.9 Hazardous Risks. ThermoRetec understands the currently known and
potentially hazardous risks, if any, which are or may be presented to human
beings, property and the environment by potentially hazardous substances at or
near the Sites and agrees that it shall inform its officers, directors,
employees and subcontractors of the nature of such materials and the health and
environmental risk associated therewith.
4.10 Governmental Actions. Any condition threatening to adversely
affect quality assurance, attainment of schedules, or control of the performance
of the Services hereunder shall be immediately brought to the attention of
AGLC's Program Director (as defined in Section 5.1). Additionally, ThermoRetec
will notify AGLC if it becomes aware of any pending or threatened governmental
or third-party action or delay related to the Services performed hereunder or
any of the Sites. Likewise, AGLC will notify ThermoRetec if it becomes aware of
any pending or threatened governmental or third-party action or delay related to
the Services performed hereunder or the Sites.
4.11 Resources. ThermoRetec represents, warrants and covenants that it
has or will obtain the requisite personnel, competence, skill and physical
resources to perform the Services and that it has and shall maintain the
capability, experience, registrations, licenses, permits and government
approvals required to perform the Services in accordance with the timetables set
forth herein.
4.12 Remedial Actions. If any of the Services fail to conform to the
requirements of this Agreement, ThermoRetec will, at its sole cost and expense
and without any additional charges to AGLC, promptly perform corrective Services
of the type originally required to be performed as may be required to correct
such defects of which ThermoRetec is notified by AGLC in writing within one year
after the completion of the specific Services at issue or within one year from
notice to AGLC by a governmental authority, whichever is later. In addition,
upon receipt of a notice from AGLC that ThermoRetec has failed to perform any of
the Services in accordance with this Agreement, ThermoRetec shall as soon as
reasonably practicable: (A) perform a root-cause analysis to identify the cause
of such failure; (B) provide AGLC with a report detailing the cause of, and
procedure for correcting, such failure; (C) correct such failure; and (D)
provide AGLC with assurance reasonably satisfactory to AGLC that such failure
shall not recur after the procedure has been completed.
4.13 Subcontracting. Prior to subcontracting any of the Services or the
Transfer Assistance (as defined in Section 9), ThermoRetec shall notify AGLC of
the proposed subcontractor. ThermoRetec agrees to follow agreed upon bid
procedures with respect to awarding any project to a subcontractor and to enter
into a written subcontract in substantially the form of the appropriate form
subcontract agreement attached hereto as Exhibit 5, as such forms may be
modified from time to time by mutual agreement of the parties. AGLC shall, at
its sole and absolute discretion, have the right by written notice to
ThermoRetec to cause ThermoRetec to terminate a subcontractor. Further, each
subcontract shall provide that ThermoRetec may assign the subcontract to AGLC,
one of its affiliates or another third party designated by AGLC upon written
notice to the subcontractor, and ThermoRetec shall, upon receipt of notice from
AGLC, assign any or all specified subcontracts to AGLC, one of its affiliates or
another third party designated by AGLC. AGLC hereby approves those
subcontractors identified on Exhibit 6 to the extent that such subcontractors
continue to provide the services described in Exhibit 6 or elsewhere in this
Agreement. ThermoRetec shall remain primarily liable and obligated to AGLC for
the timely and proper performance of all of its obligations hereunder, even if
such obligations are delegated to third party subcontractors, and for the proper
and timely performance and actions of any person or entity to which it delegates
or subcontracts any such obligations.
4.14 Conduct of Personnel. While at the Site or otherwise on AGLC's
premises, ThermoRetec shall, and shall cause ThermoRetec's employees, agents and
subcontractors to, (A) comply with the requests, standard rules and regulations
and policies and procedures of AGLC regarding safety and health, security,
personal and professional conduct (including the wearing of personal protective
equipment and adhering to site regulations and general safety practices or
procedures) generally applicable at such location, and (B) otherwise conduct
themselves in a businesslike manner. If AGLC determines that a particular member
of ThermoRetec's staff is not conducting himself or herself in accordance with
this Section 4.14, AGLC may notify ThermoRetec of such conduct. Upon receipt of
such notice, ThermoRetec shall promptly investigate the matter and take
appropriate action, which may include removing the individual from the provision
of the Services and providing AGLC with prompt notice of such removal, or
replacing the individual with a similarly qualified individual, or taking such
other appropriate disciplinary action to prevent a recurrence.
4.15 Exceptions. Anything in this Agreement (including the Exhibits) to
the contrary notwithstanding, the parties acknowledge and agree that (a)
ThermoRetec shall not be liable hereunder for failure to meet applicable
deadlines if such delays are caused by Force Majeure Events (as defined below)
or due to delays caused by AGLC or its decisions and instructions, and (b) with
respect to the Non-AGLC Lead Sites, ThermoRetec's obligation under this
Agreement shall be to use its best efforts to meet applicable deadlines.
5. Management and Control.
5.1 Program Directors. ThermoRetec and AGLC shall each designate an
individual to serve in a project management capacity (the "Program Directors")
as well as an alternate Program Director who shall serve in such capacity in the
Program Director's absence. The initial Program Director and alternate Program
Director for the parties shall be as follows: for AGLC Suzanne Sitherwood and
Donna Moore, and for ThermoRetec {*} and {*}. The Program Director designated by
ThermoRetec shall be a qualified environmental professional and shall have
substantial experience providing and managing the provision of services similar
to the Services. Each party's Program Director or alternate Program Director
shall be available to the other party at reasonable times. ThermoRetec shall not
replace its Program Director or alternate Program Director without the prior
written consent of AGLC, and ThermoRetec shall use reasonable efforts to
maintain its Program Director for a term of at least two years after the
Effective Date. Whenever possible, ThermoRetec shall give AGLC at least 60 days
advance notice of a change of the Program Director. If AGLC reasonably and in
good faith determines that it is not in the best interest of AGLC for the
ThermoRetec Program Director to continue to serve in his or her capacity, then
AGLC may give ThermoRetec written notice specifying the reasons for its position
and requesting that the ThermoRetec Program Director be replaced. ThermoRetec
shall immediately investigate the matters stated in such notice and, if it
determines that AGLC's concerns are reasonable and not unlawful, then
ThermoRetec shall replace its Program Director with the alternate Program
Director or a new Program Director meeting the qualifications set forth in this
Section 5.1. If AGLC decides at any time that any ThermoRetec employee should
not continue in the performance of the Services, then AGLC may, in its sole
discretion and upon notice to ThermoRetec, require removal of such employee from
the provision of the Services. ThermoRetec shall, as soon as reasonably
practicable, replace any such ThermoRetec employee. ThermoRetec shall notify
AGLC as soon as possible after dismissing or reassigning any principal member of
its staff performing the Services. AGLC may replace its Program Director or its
alternate Program Director upon written notice to ThermoRetec.
5.2 Other Key Personnel. The parties acknowledge and agree that the
following additional employees of ThermoRetec are critical to ThermoRetec's
performance hereunder: {*}, {*} and {*}. ThermoRetec shall use reasonable
efforts to retain these employees for a term of at least two (2) years after the
Effective Date. ThermoRetec shall not replace any of these named individuals in
connection with the provision of Services without the prior written consent of
AGLC. Whenever possible, ThermoRetec shall give AGLC at least sixty (60) days
advance notice of a change in the employment status, position or availability of
these employees for the provision of the Services.
5.3 Management Committee. Prior to the Effective Date, AGLC shall
appoint two representatives to serve on a management committee (the "Management
Committee"), and ThermoRetec shall appoint two representatives to serve on the
Management Committee. The parties shall also mutually agree upon an individual
who is not affiliated with either party to serve as an independent member of the
Management Committee. AGLC shall designate one of its representatives on the
Management Committee to act as the chairperson of the Management Committee. The
parties shall cause their representatives on the Management Committee to attend
the meetings of the Management Committee. In addition, each party shall cause
its Program Director or alternate Program Director to attend meetings of the
Management Committee as a non-voting member thereof. Any decision by the
Management Committee to adjust any of the terms of this Agreement must be made
by a vote that includes the vote of at least one representative of each party.
The Management Committee shall be authorized and responsible for (A) overseeing
the performance of each party's obligations under this Agreement and (B)
monitoring and resolving disputes in accordance with Section 16.1. A party may
change any of its representatives on the Management Committee upon notice to the
other party.
5.4 Monthly Reports. ThermoRetec shall submit to AGLC within 10 days
after the end of each calendar month a monthly report, detailing on a Site by
Site basis (A) activities conducted during the prior calendar month relating to
the performance of the Services; (B) activities relating to the performance of
the Services planned to be conducted in the next calendar month; (C) compliance
with, or any variations to, the schedule for the performance of the Services as
set forth in the Plan; and (D) any other matter reasonably requested by AGLC.
The parties shall agree on a form for such monthly reports.
6. Indemnity.
6.1 By ThermoRetec. To the fullest extent permitted by law, ThermoRetec
and ThermoRetec Corp. shall jointly and severally indemnify, defend and hold
harmless AGLC, its affiliates, and its and their respective agents, officers,
directors, and employees from and against any and all claims, causes of action,
suits, damages, losses and expenses, including but not limited to reasonable
attorneys' fees and amounts paid in settlement, arising out of or resulting from
(A) ThermoRetec's performance of the Services, provided that such claim, damage,
loss or expense is attributable to bodily injury, sickness, disease, or death,
or to injury to or destruction of tangible property (other than the Services
itself) including loss of use resulting therefrom, caused in whole or in part by
ThermoRetec, or any of its employees, agents or subcontractors, anyone directly
or indirectly employed by them or anyone for whose acts they may be liable,
except (i) to the extent that such claims and actions arise out of AGLC's, or
any of its employees, agents or contractors (other than ThermoRetec), willful
misconduct or negligent act or omission, or (ii) to the extent the claim, cause
of action, suit, damage, loss or expense does not arise from a third party claim
against AGLC or its affiliates or its or their respective agents, officers,
directors or employees, then ThermoRetec's and ThermoRetec Corp.'s obligations
under this Section 6.1(A) shall only arise from the willful misconduct or
negligence of ThermoRetec or its employees, agents or subcontractors, (B) any
breach of this Agreement by ThermoRetec, (C) any breach of any representation or
warranty of ThermoRetec set forth in this Agreement, (D) any infringement upon
or misappropriation of the proprietary rights of any third party, or (E) any
violation of any federal, state, or local law, rule or regulation by ThermoRetec
or any of its employees, agents or subcontractors in the performance of the
Services, provided that this clause (E) will not apply to any event occurring on
a Site where the event is the result of information or specific express
directions given by AGLC.
6.2 By AGLC. To the fullest extent permitted by law, AGLC shall
indemnify, defend and hold harmless ThermoRetec, its agents, officers, directors
and employees from and against any and all claims, causes of action, suits,
damages, losses and expenses, including but not limited to reasonable attorneys'
fees and amounts paid in settlement, arising out of or resulting from AGLC's
obligations under this Agreement, or from its acts or omissions, provided that
such claim, damage, loss or expense is attributable to bodily injury, sickness,
disease, or death, or to injury to or destruction of tangible property (other
than the Services itself) including loss of use resulting therefrom, but only to
the extent caused in whole or in part by negligent acts or omissions of AGLC, or
any of its employees, agents or contractors, anyone directly or indirectly
employed by them or anyone for whose acts they may be liable, except to the
extent that such claims and actions arise out of ThermoRetec's, or any of its
employees, agents or subcontractors, willful misconduct or negligent act or
omission.
6.3 Proportionate Liability. In the event any damages are caused in
part by actions or inactions of ThermoRetec or those who it is responsible for
under this Section 6 and caused in part by actions or inactions of AGLC or those
who it is responsible for under this Section 6, ThermoRetec and AGLC shall be
proportionately liable to each other and/or to any third party in proportion to
ThermoRetec's and AGLC's relative degrees of fault.
6.4 Procedures. The obligations of each party and ThermoRetec Corp.
("Indemnitor") in Sections 6.1 and 6.2 to indemnify, defend and hold harmless
the other party ("Indemnitee") shall be subject to the following:
(A) Indemnitee shall provide Indemnitor with prompt notice of
the claim giving rise to such obligation; provided, however, that any
failure or delay in giving such notice shall only relieve Indemnitor of
its obligations under this Section 6 to the extent it reasonably
demonstrates that its defense or settlement of the claim or suit was
adversely affected thereby;
(B) Indemnitor shall have sole control over the defense and of
all negotiations for settlement of such claim or suit; and
(C) Indemnitee shall cooperate with Indemnitor in the defense
or settlement of such claim or suit, provided that Indemnitee shall be
reimbursed for all reasonable out-of-pocket expenses incurred in
providing any cooperation requested by Indemnitor. Subject to clause
(B) above, Indemnitee may participate in the defense of any such claim
or suit at its own expense.
7. Insurance.
7.1 Contractor Owned Insurance Program. As soon as possible and with
all due diligence after signature of this Agreement by both parties, ThermoRetec
shall use its best efforts to obtain and thereafter maintain as provided herein,
an insurance program covering the Services (the "Insurance Program") that
conforms with the following provisions and requirements. ThermoRetec shall
consult with AGLC and obtain AGLC's written approval of the form of the
insurance policies comprising the proposed Insurance Program, their terms and
conditions, exclusions and the related premiums, and AGLC shall have the right
to request changes to the proposed Insurance Program. The Insurance Program so
approved by AGLC or as changed by AGLC and accepted by the insurers shall
constitute AGLC's agreement that the Insurance program so obtained conforms with
the requirements of this Agreement, or if different from the requirements set
forth in this Agreement, that the requirements set forth herein are amended to
conform with the coverages, exclusions, terms and conditions of the policies in
the Insurance Program so obtained.
(A) The Insurance Program will include: Commercial General Liability
Insurance ("CGL Insurance"), including at a minimum bodily injury
and property damage liability, personal and advertising injury,
completed operations, independent contractor's liability, and
contractual liability, and all other major divisions of coverage
contained in ISO form CG 00 01, with limits of not less than
$20,000,000 per occurrence, $20,000,000 policy aggregate, and
$20,000,000 products/completed operations aggregate, and with a
$100,000 self-insured retention ("SIR") or deductible; Professional
liability ("Errors & Omissions Insurance") insurance with a limit of
not less than $40,000,000 per claim and $40,000,000 policy aggregate,
and with a $100,000 SIR; and Contractor's Pollution Liability
Insurance ("COPS Insurance") with a limit of not less than $40,000,000
per claim and $40,000,000 policy aggregate, and with a $100,000 SIR.
(B) The Insurance Program will cover: all Services at the Sites (including
sites that are not listed in Exhibit 2 hereto, but which
subsequently are included within the scope of Services under
this Agreement); off-site fabrication, assembly, consulting,
engineering and other professional services; laboratory
services; remediation/removal, disposal of wastes and debris
and all other contracting operations necessary to complete the
scope of Services, but not including haulers or disposal site
owners/operators, which are covered by Section 7.6.
(C) Except to the extent a claim results from negligent acts or
omissions or intentional misconduct of AGLC or its employees
or contractors (other than ThermoRetec or its subcontractors),
all deductibles or SIRs shall be the sole responsibility of
ThermoRetec or its subcontractors, and in no event shall
deductibles paid by ThermoRetec or its subcontractors be
passed through directly or indirectly as an Actual Cost or
otherwise under this Agreement, other than deductibles paid by
ThermoRetec resulting from claims covered by the above
exception.
(D) All policies in the insurance program will cover Services
rendered to AGLC in connection with the Sites after January 1,
2000 and will have a policy period covering the expected
Initial Term of this Contract (nominally 5 years), provided
that each of ThermoRetec and AGLC furnish to the insurer a
letter that they are aware of no claims or incidents that are
likely to give rise to claims having occurred between January
1, 2000 and the effective dates of the policies.
(E) The Commercial General Liability policy will be written on an
occurrence or claims made basis as approved by AGLC and will include
completed operations coverage providing a coverage extension of two
years for completed operations claims.
(F) The Professional Liability and Contractor's Pollution Liability
policies may be written on a claims made basis and shall have a policy
period covering the Initial Term of this Agreement and with a two
year extended reporting period. The Professional Liability and
Contractor's Pollution Liability policies may be written on a
combined basis as long as the policy limits equal or exceed the
requirements of this section. The policy retroactive dates for
both coverages shall be no later than January 1, 2000 (subject to
the same proviso as in (D) above), and will not be advanced during
the policy period or subsequent to the policy period for at
least two years after completion of all Services under this Agreement.
(G) As soon as practicable but in no event later than 15 days following
the placement of coverage ThermoRetec shall provide AGLC with
certificates of insurance confirming that insurance policies in
accordance with the above terms are in place and effect. Each
certificate also shall provide that 30 days written notice shall be
given to AGLC in the event of cancellation or material change.
(H) The Insurance Program policies required hereunder shall, with
respect to the Services to be provided hereunder, be primary
and without right to contribution of any other insurance
policy covering the same risks and carried by AGLC or its
affiliates, ThermoRetec and any of its subcontractors and
their affiliates, but this shall not apply with respect to
those policies required to be carried by haulers and disposal
site owners/operators pursuant to Section 7.6 (A) and (B)
below.
(I) Except as agreed in writing by AGLC, AGLC and its affiliates
and ThermoRetec will be included on all policies referenced by
this section as Named Insureds. Except as agreed in writing by
AGLC, ThermoRetec shall assure that all subcontractors
approved and accepted by AGLC and ThermoRetec to provide
Services under this Agreement, except haulers and disposal
site owners or operators covered by Section 7.6 will be added
to each policy as insureds and a certificate of insurance will
be issued to each subcontractor evidencing such.
(J) ThermoRetec shall provide AGLC with a copy of the policies comprising
the Insurance Program within thirty days of its receipt of those
policies.
7.2 Cost for the Insurance Program and AGLC Cooperation. (A)
ThermoRetec's costs for the premiums to obtain the Insurance Program shall be
treated as Actual Costs to be reimbursed to ThermoRetec as incurred.
Notwithstanding any provision in Section 8 hereof regarding termination, upon
any termination of ThermoRetec under this Agreement, if thereafter there are
continuing costs associated with the Insurance Program, including payment of
premiums and ThermoRetec's own costs of administration, AGLC shall reimburse
those costs as incurred by ThermoRetec, at ThermoRetec's then standard rates,
except that premium costs shall be without any mark-up.
(B) AGLC will cooperate with ThermoRetec for the effective and
efficient management of the Insurance Program. The parties recognize that there
may be requirements and procedures that they must comply with in order to obtain
the Insurance Program as contemplated herein, for enrollment in the Insurance
Program, for reporting of claims, and for other matters. Each of the parties
agrees to cooperate with the other in order to accomplish these objectives in a
timely and efficient manner.
7.3 Remediation Cap Insurance. As part of the Services, ThermoRetec
shall assist AGLC in securing an insurance policy providing protection against
exceeding a certain agreed maximum cost for the Remediation Activities. Further,
ThermoRetec shall, if AGLC obtains such a policy, reimburse AGLC promptly upon
demand for the first $200,000 in deductibles or self-insured retentions payable
by AGLC under such policy as such payments are made by AGLC.
7.4 Other Coverage Required for ThermoRetec and Subcontractors. Prior
to performing any of the Services, ThermoRetec shall obtain, and unless the
coverage for occurrences taking place during the policy automatically remains in
effect indefinitely beyond the expiration of the policy period, shall thereafter
maintain in full force and effect until two years after termination of this
Agreement, the following insurance coverages:
(A) Worker's Compensation Insurance, including Occupational Disease
Coverage, in accordance with the requirements of the applicable laws
of the State(s) in which the Services are being performed.
(B) Employer's Liability Insurance with a limit of $1,000,000 per
incident, $1,000,000 aggregate, with a standard All States
endorsement.
(C) Automobile insurance for owned, non-owned or hired vehicles with
limits for public liability of not less than $2,000,000 per person
per accident or occurrence for bodily injury and limits of not less
than $2,000,000 per accident or occurrence for property damage.
ThermoRetec shall assure that any transporter whose scope of
Services includes the transportation of any waste materials
(including wastes characterized as hazardous or special wastes)
will maintain automobile liability coverage with limits not less
than $5,000,000 combined single limit, and including both the MCS-90
and Insurance Service Office ("ISO") CA 99 48 (or its equivalent)
endorsements. ThermoRetec shall assure that AGLC, ThermoRetec and
their affiliates are added to such policy as Additional Insureds and
evidence of such will be provided by certificates of
insurance acceptable to AGLC.
(D) All deductibles or SIRs under any policies of insurance
required in this Section 7.4 shall be paid by ThermoRetec or
its sub-contractors and, in no event, shall such costs be
passed directly or indirectly to AGLC. ThermoRetec's
obligation to assure that subcontractors carry the coverage
required under this Section 7.4 shall be satisfied by
obtaining a certificate of insurance evidencing the coverage
required hereunder.
7.5 General Policy Requirements. Except as provided elsewhere in this
Article 7, all insurance required by this Agreement shall be maintained with
companies rated by A.M. Best "A" or better unless agreed to in writing by AGLC.
As soon as possible after placing each policy under the Insurance Program,
ThermoRetec shall furnish certificates of insurance to AGLC which will evidence
the procurement of the insurance required hereunder. Each certificate shall
provide that 30 days written notice shall be given to AGLC in the event of
cancellation or material change to the coverage. ThermoRetec shall obtain, and
cause its subcontractors to obtain, a waiver of subrogation in favor of AGLC
with regard to the coverage in Section 7.4. ThermoRetec will require all
subcontractors or consultants performing a part of the Services to carry
insurance of similar types as required of ThermoRetec in this Section 7.4,
provided that the Program Directors may modify the levels of coverage required
of a given subcontractor or consultant based upon perceived risk, so long as
such decision is made by the Program Directors in writing. Further, any
subcontractor's obligation to maintain coverage in force beyond the end of the
policy period during which work was performed shall be limited to two years from
the time such subcontractor has completed all its work included in the Services.
7.6 Insurance For Disposal Site Owners and Operators. Except as may be
otherwise agreed in writing by AGLC, ThermoRetec shall require that any location
accepting any waste material generated by the performance of Services under this
Agreement (including specifically any waste material characterized as hazardous
or special waste) for consolidation, transfer, storage, and/or disposal shall
maintain the following insurance coverages and limits of liability for a period
of 2 years following acceptance of the last waste material by the disposal site
owner/operator under this contract, or an extended reporting period of the same
duration, which requirement ThermoRetec shall be deemed to have been satisfied
by obtaining a certificate of insurance evidencing the coverage required
hereunder:
(A) Commercial General Liability, written on an occurrence form,
and including all major divisions of coverage contained in ISO
form CG 00 01, with limits of not less than $5,000,000 per
occurrence for bodily injury and/or property damage,
$5,000,000 general aggregate, and $5,000,000
products/completed operations aggregate. Any deductible or
self-insured retention contained in the policy shall not
exceed $100,000. The policy will be endorsed to include AGLC
and ThermoRetec as Additional Insureds and endorsed to provide
a Waiver of Subrogation in favor of AGLC and ThermoRetec.
(B) Pollution Legal Liability, including coverage for both sudden
and non-sudden pollution conditions, with limits not less than
$10,000,000 per claim and $10,000,000 total all claims. The policy
will include coverage for bodily injury, property damage, cleanup
costs (on and off-site) and defense costs. The policy may be
written on a claims-made policy form. The policy retroactive
date shall be no later than the date that waste from the
Remediation Activities is first accepted by the disposal site
owner/operator, and such retroactive date shall not be advanced
for a period of at least 2 years following acceptance of the last
waste material by that disposal site owner/operator under this
contract. Any deductible or self-insured retention contained in the
policy shall not exceed $100,000. AGLC and ThermoRetec shall be
named as Additional Insureds under this policy, and the policy
will be endorsed to provide a Waiver of Subrogation in favor of AGLC
and ThermoRetec.
(C) The cost for obtaining and maintaining the coverages required
under this section will be borne entirely by the disposal site
owner/operator and included in their fees. ThermoRetec shall
assure that the insurance coverages required by this section
shall in no way relieve any disposal site owners/operators of any
liability outside the scope of coverage of the insurance types and
amounts by this section, or in excess of the limits of liability
provided under the policies required by this section. All insurance
companies providing coverage to disposal site owners/operators in
accordance with this section shall maintain an A.M. Best rating of
not less than "A-" size class "X" or larger.
(D) ThermoRetec shall assure that the policies required under paragraphs
(A) and (B) immediately above shall be primary and without right to
contribution of any insurance policy covering the same risks and
carried by AGLC or ThermoRetec.
7.7 AGLC's Reliance of ThermoRetec's Brokers. ThermoRetec shall obtain
written evidence that AGLC is entitled to rely on the advice and performance of
any insurance brokers assisting ThermoRetec in the placement or administration
of the Insurance Program to the same extent as ThermoRetec is entitled to rely
upon those brokers.
7.8 Insurance Coverage Pending Placement of the Insurance Program.
Prior to the placement of the Insurance Program contemplated by Section 7.1,
ThermoRetec shall maintain, and shall require any subcontractors to maintain,
such insurance as is customary in terms of scope and limits among firms of
ThermoRetec's size in the environmental engineering industry (or, in the case of
a subcontractor, customary for that entity's size and specialty) engaged in
activities of the nature contemplated by this Agreement, which insurance shall
cover the Services until such time as the Insurance Program is in place.
7.9 Exceptions. Notwithstanding anything herein to the contrary, (i) if
AGLC agrees at the Program Director level or above that any insurance coverage
to be obtained or maintained by ThermoRetec or a subcontractor or consultant to
ThermoRetec need not be in accordance with the requirements stated herein, then
such other requirements as agreed in writing by the representatives of
ThermoRetec and AGLC shall apply, and (ii) if with respect to subcontractors
AGLC does not agree to insurance coverages not in conformance with the terms set
forth herein, and ThermoRetec is unable to obtain a subcontractor's agreement to
accept terms as herein provided after exerting its best attempts to do so,
ThermoRetec shall not enter into the agreement with that subcontractor, and
ThermoRetec shall not as a result thereof be in breach of this contract or
responsible for resulting delays.
8. Termination.
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8.1 Termination. This Agreement may be terminated in whole or in part
by (A) either party in the event of a default consisting of substantial failure
by the other party to fulfill its obligations under this Agreement; provided,
that no such termination may be effected unless such default, if capable of
cure, has not been cured within 30 days after written notice to the defaulting
party; (B) AGLC upon 30 days written notice given at any time within the 90 days
immediately following the consummation of a Change of Control of ThermoRetec (as
defined below) that occurs prior to the CAP Date (as defined below); (C) AGLC
upon 30 days written notice given at any time during the 90 days immediately
following the consummation of a Change of Control of ThermoRetec or Permitted
Change in Control (as defined below), in either case that occurs at any time
during the term of this Agreement; or (D) AGLC immediately in the event a
petition for relief under any bankruptcy legislation is filed by or against
ThermoRetec or any of its parent companies, or ThermoRetec or any of its parent
companies makes an assignment for the benefit of creditors or a receiver is
appointed for all or substantially all of ThermoRetec's or any of its parent
companies' assets. As used herein, "CAP Date" shall mean the earlier of such
date as corrective action plans have been approved for all of the AGLC Lead
Sites or June 30, 2001. As used herein, "Change of Control of ThermoRetec" shall
mean: (i) a consolidation or merger of ThermoRetec or any of its parent
companies with or into any entity wherein ThermoRetec or such parent company, as
the case may be, is not the surviving entity (other than a merger or
consolidation with or into an Affiliated Company (as defined below)), (ii) a
sale, transfer or other disposition of all or substantially all of the assets of
ThermoRetec or any of its parent companies, other than to an Affiliated Company
(such transferee (other than an Affiliated Company) to be thereafter treated as
if it were ThermoRetec for purposes of this Section), or (iii) the acquisition
(in any manner) by any person or entity, or group of persons or entities acting
in concert, of beneficial ownership of 50% or more of the outstanding voting
securities of ThermoRetec or any of its parent companies, as a result of which
more than a majority of the voting shares of ThermoRetec or such parent company
are no longer held by an Affiliated Company; provided, however, that
notwithstanding the foregoing, a Change of Control of ThermoRetec shall not mean
(x) a "change of control" (as defined below) of any person or entity that at one
time was an Affiliated Company but at the time of such change of control is no
longer an Affiliated Company, (y) the consolidation or merger of one of
ThermoRetec's parent companies, or the sale, transfer, or other disposition of
the assets of one of its parent companies or the acquisition of 50% or more of
the outstanding voting securities of one of its parent companies, in each case
when 50% or more of the outstanding voting securities of ThermoRetec continue to
be owned, directly or indirectly, by a person or entity who was an Affiliated
Company prior to the transaction described in this clause (y), and (z) a
Permitted Change of Control. As used herein, a "Principal of ThermoRetec" shall
mean, (i) in the case of {*}, a position in ThermoRetec or a parent or
subsidiary of ThermoRetec, or an entity into or with which ThermoRetec is merged
or consolidated or which has acquired all or substantially all of ThermoRetec's
assets, having senior executive management responsibility which includes
supervisory responsibility, at a senior executive level, for performance of this
Agreement, and (ii) in the case of {*}, a position in ThermoRetec, or a parent
or subsidiary of ThermoRetec, or an entity into or with which ThermoRetec is
merged or consolidated or which has acquired all or substantially all of
ThermoRetec's assets, having senior program management or technology development
responsibility which includes supervisory responsibility, at a senior program
management level, for performance of this Agreement. As used herein "Affiliated
Company" shall mean any person or entity that directly or indirectly owns at
least a majority of the voting shares of ThermoRetec (the "Owner" for purposes
of this definition) and any person or entity that directly or indirectly owns at
least a majority of the voting shares of the Owner or a majority of whose voting
shares are owned directly or indirectly by the Owner. As used herein "Permitted
Change of Control" shall mean a Change of Control of ThermoRetec that satisfies
all of the following conditions: (i) after the Change of Control of ThermoRetec
the surviving entity or ThermoRetec retains through the Cap Date substantially
the same form of organization (including, without limitation, the MGP Program
Management System, Environmental Reporting Management System, Program Management
Reporting System and Work Process System) and management as prior to the Change
of Control of ThermoRetec; (ii) after the Change of Control of ThermoRetec the
surviving entity or ThermoRetec retains through the Cap Date a tangible net
worth (calculated in accordance with generally accepted accounting principals,
consistently applied) of at least $9,800,000; (iii) both {*} and {*} remain a
Principal of ThermoRetec on a full-time basis (except as a result of death or
permanent disability) through the Cap Date; and (iv) as part of the Change of
Control of ThermoRetec, ThermoRetec will use reasonable best efforts to ensure
that {*}, {*} and {*} will continue to remain involved in the performance of
this Agreement through the Cap Date in substantially the same capacity as before
the Change of Control of ThermoRetec, including the use of reasonable retention
agreements. As used herein, a "change of control" with respect to any person or
entity shall mean (i) a consolidation or merger of such person or entity with or
into another person or entity wherein the person or entity in question is not
the surviving entity, (ii) a sale, transfer, or other disposition of all or
substantially all of the assets of such person or entity, or (iii) the
acquisition (in any manner) by another person or entity, or group of persons or
entities acting in concert, of beneficial ownership of 50% or more of the
outstanding voting securities of the person or entity in question, as a result
of which more than a majority of the voting shares of such person or entity are
no longer held by the shareholders immediately prior to such acquisition.
8.2 For Convenience. This Agreement may be terminated in
whole or in part by AGLC for its convenience at any time
by giving ThermoRetec at least 90 days written notice of
intent to terminate.
8.3 For Change of Circumstances. AGLC shall have the right to terminate
this Agreement upon ninety (90) days written notice to ThermoRetec if, in AGLC's
sole good faith discretion, continuation of this Agreement becomes impossible,
impractical or undesirable due to legal, economic, or policy constraints or
circumstances, including, but not limited to any change in the Governmental
Requirements and Orders.
8.4 For Failure to Satisfy Conditions. AGLC shall have the right to
terminate this Agreement upon 90 days written notice to ThermoRetec if
ThermoRetec has not entered into a binding subcontract in form and substance
acceptable to AGLC with Law Engineering and Environmental Services, Inc. by
April 14, 2000.
8.5 Reimbursable Costs. (a) If termination is effected by AGLC for its
convenience under Section 8.2, AGLC will pay ThermoRetec all reimbursable costs
which are due as of the effective date of termination, and in addition, those
reimbursable costs incurred in good faith by ThermoRetec after the effective
date of termination in connection with demobilization of equipment and personnel
(including severance costs and subcontract and vendor settlements) plus the Site
Management Fees and a negotiated portion of the Performance Fee for the
AGLC-Lead Sites otherwise due in accordance with the terms of Exhibit 3.
(b) If termination is effected by AGLC for change of
circumstances under Section 8.3, AGLC will pay ThermoRetec all Actual Costs
which are due as of the effective date of termination as well as the Aggregate
Performance Fees due through the effective date of termination, including any
portion of the Performance Fees withheld in accordance with the terms of Exhibit
3.
(c) If termination is effected by AGLC because ThermoRetec has
not entered into a binding subcontract in form and substance acceptable to AGLC
with Law, Engineering and Environmental Services, Inc. by April 14, 2000, as set
forth in Section 8.4, AGLC will pay ThermoRetec all Actual Costs which are due
as of the effective date of termination, as well as 80% of the Aggregate
Performance Fees due in accordance with the terms of Exhibit 3. AGLC shall not
be obligated to pay the remaining 20% of the Aggregate Performance Fees retained
in accordance with the terms of Exhibit 3.
(d) If termination is effected by AGLC pursuant to Section
8.1(B), then (i) subject to Section 8.6 hereof, ThermoRetec shall provide the
Transfer Assistance Services as provided in Section 9 below without additional
charge to AGLC for a period of 90 days following the effective date of
termination and thereafter for an additional 180 days on a time and materials
basis at its standard rates, (ii) AGLC shall have no further obligation from and
after the effective date of termination to pay any additional Aggregate
Performance Fees (including any that have been retained pursuant hereto), and
(iii) ThermoRetec shall pay to AGLC as liquidated damages the amount set forth
on Schedule 8.5 attached hereto; provided, however, that AGLC shall pay
ThermoRetec all Actual Costs which are due for services provided through the
effective date of termination and for all Actual Costs identified in Exhibit 4,
item 4 for subcontractors during the 90 day period when the Transfer Assistance
Services are otherwise provided without charge.
(e) If termination is effected by AGLC pursuant to Section
8.1(C), then (i) subject to Section 8.6 hereof, ThermoRetec will provide the
Transfer Assistance Services as provided in Section 9 below to AGLC for a period
of 90 days following the effective date of termination at ThermoRetec's Actual
Cost and thereafter for an additional 180 days on a time and materials basis at
its standard rates, and (ii) AGLC shall have no further obligation from and
after the effective date of termination to pay any additional Aggregate
Performance Fees; provided, however, that AGLC shall pay ThermoRetec all Actual
Cost which are due for Services provided through the effective date of
termination, plus the Site Management Fees through the effective date of
termination and a portion of the Performance Fee for the AGLC Lead Sites through
the effective date of termination in accordance with the terms of Exhibit 3.
(f) Other than specifically set forth in this Section 8.5,
AGLC shall have no liability to ThermoRetec for any claims, causes of action,
suits, damages, losses and expenses arising out of, or resulting from, AGLC's
termination of this Agreement in accordance with this Section 8.
8.6 Consequences of Termination. Upon receipt of a notice of
termination pursuant to this Article 8, ThermoRetec shall (A) promptly
discontinue all affected Services (unless the notice directs otherwise), and (B)
deliver to AGLC all data, drawings, specifications, reports, summaries, and such
other information and materials as may have been accumulated by ThermoRetec in
performing the Services, whether completed or in process, with the exception of
one record copy of such information which shall be kept by ThermoRetec, which
copy shall be subject to the confidentiality provisions of Section 10.
Notwithstanding any other provisions hereof (other than Section 24), no
termination of this Agreement shall affect the obligations of the parties under
Section 6 hereof, and in the event of termination of this Agreement by AGLC for
any reason, the parties shall cooperate and use their best efforts to assure
that ThermoRetec, its affiliates and their officers, directors and employees
continue to be covered under the Insurance Program as if this Agreement had not
been terminated, including extended reporting periods, for Services rendered
prior to the date of termination and for any Transfer Assistance that is
required to be performed hereunder after the date of termination. ThermoRetec
shall have no obligation to perform any Transfer Assistance except if the
Insurance Program continues to cover the provision of such Transfer Assistance
services.
9. Termination Services. The parties agree that ThermoRetec will cooperate with
AGLC to assist in the orderly transfer of the Services to AGLC or another
service provider in connection with the expiration or earlier termination of
this Agreement for any reason. Without limiting the generality of the foregoing,
upon AGLC's request, subject to Section 8.6 hereof, ThermoRetec shall provide
transfer assistance in connection with migrating the work to AGLC or another
service provider ("Transfer Assistance") for a period, unless a shorter period
is specified in Section 8.5, of up to one year following the expiration of this
Agreement or up to one year following any notice of termination (as the case may
be). ThermoRetec shall provide the Transfer Assistance in accordance with this
Section 9 even if AGLC has materially breached this Agreement (other than an
uncured payment default or failure to defend and indemnify ThermoRetec as
provided herein) with or without an attendant termination for cause by
ThermoRetec, if AGLC prepays a reasonable projection of the other charges
hereunder for the Transfer Assistance for the entire period AGLC desires
ThermoRetec to provide the Transfer Assistance. The Transfer Assistance shall be
provided pursuant to the terms and conditions of this Agreement, and in lieu of
all other compensation described herein (including the performance fee),
ThermoRetec shall be compensated on a time and materials basis at its standard
rates for such assistance; provided, however, that if AGLC has terminated this
Agreement pursuant to Section 8.1(A) or 8.1(D), ThermoRetec shall provide the
Transfer Assistance without any additional charge to AGLC; provided, further,
that if AGLC has terminated this Agreement pursuant to Section 8.1(B) or 8.1(C),
ThermoRetec shall provide the Transfer Assistance for the time periods and for
the fees set forth in Section 8.5(d) and (e), respectively. If the Transfer
Assistance requires ThermoRetec to incur costs that ThermoRetec would not
otherwise incur in the performance of the Services under this Agreement, then
ThermoRetec shall notify AGLC of the identity and scope of the activities
requiring ThermoRetec to incur such costs and the projected amount of the
charges that will be payable by AGLC for the performance of such assistance.
Upon AGLC's authorization, ThermoRetec shall perform the assistance and invoice
AGLC for such charges. Within 30 days after the date of the invoice, AGLC shall
pay ThermoRetec for authorized additional charges incurred to provide such
assistance to AGLC.
10. Confidentiality.
10.1 Definition; Restrictions. From time to time during the term of
this Agreement, a party (the "Disclosing Party") may disclose Confidential
Information (as defined below) to the other party (the "Disclosee"). Each party
agrees that it will maintain the confidentiality of any and all Confidential
Information of a Disclosing Party and not disclose any Confidential Information
to any person other than to persons who require such information to perform the
party's obligations hereunder, or use such Confidential Information except to
perform its obligations hereunder. As used herein, "Confidential Information"
means any technical, business, and other information related to the Disclosing
Party's business, disclosed or otherwise obtained in connection with this
Agreement, whether or not in writing, which (A) derives value, actual or
potential, from not being generally known to the public or to other persons who
can obtain value from its disclosure or use, and (B) is clearly identified by
the party to whom such information belongs as confidential.
10.2 Additional Obligations. In addition, except as provided herein,
each party agrees to hold the terms of this Agreement in confidence and to
disclose such terms only to its employees, agents, subcontractors and
representatives who need to know such information to perform their respective
responsibilities and shall be directed to hold such terms in confidence.
10.3 Exceptions. The obligations set forth in this Section 10 do not
apply if and to the extent that the Disclosee establishes that: (A) the
information was already known to the Disclosee, without obligation to keep it
confidential, at the time of its receipt, as evidenced by documents in the
possession of the Disclosee prepared or received prior to disclosure of such
information; (B) the Disclosee received the information in good faith from a
third party lawfully in possession thereof without obligation to keep such
information confidential and without requiring the Disclosee to keep the
information confidential; (C) the information was publicly known at the time of
its receipt by the Disclosee or has become publicly known other than by a breach
of this Agreement; (D) the information is independently developed by the
Disclosee without use of the Disclosing Party's Confidential Information; or (E)
the information does not constitute a trade secret under applicable law two
years after the expiration or termination of this Agreement.
10.4 Compliance with Legal Process. Nothing herein shall preclude
either party from disclosing information which it is legally required to
disclose whether pursuant to a valid legal process, court order, regulatory
requirement or otherwise. A party that is legally required to make disclosures
of any matter specified herein shall (a) notify the other party as soon as
practicable and in any event in advance of making such disclosure, specifying
the information it is legally required to disclose, and (b) where the court or
governmental agency requiring the disclosure has a policy or procedure for
protecting trade secrets or other confidential information, use such policy or
procedure (if applicable).
10.5 Work Product. ThermoRetec recognizes that it may obtain access to
information created by and for AGLC and associated communications related
thereto (collectively, "Privileged Work Product") which are confidential
attorney work product or subject to the attorney-client privilege. AGLC shall
identify for ThermoRetec the Privileged Work Product to which ThermoRetec may
obtain access. ThermoRetec shall not intentionally reveal Privileged Work
Product to third parties, and ThermoRetec shall institute adequate safeguards to
prevent the unintentional disclosure of Privileged Work Product to third
parties. The only persons who may have access to Privileged Work Product shall
be those for whom such access is necessary for the purpose of providing Services
to AGLC. AGLC has advised ThermoRetec that Privileged Work Product has been
prepared in anticipation of litigation and that ThermoRetec is performing the
Services in respect of Privileged Work Product as an agent of AGLC, and that all
matters related thereto are protected from disclosure by Rule 26 of the United
States Federal Rules of Civil Procedure, or any similar law in other local
jurisdictions. Should ThermoRetec ever be notified of any judicial or other
proceedings seeking to obtain access to Privileged Work Product, ThermoRetec
shall (A) promptly notify AGLC and (B) take such reasonable actions as may be
specified by AGLC to resist providing such access. AGLC shall have the right and
duty to represent ThermoRetec in such resistance or to select and compensate
counsel to represent ThermoRetec in such matter or reimburse ThermoRetec for
reasonable attorneys' fees and expenses incurred in resisting such access.
11. Independent Contractor. ThermoRetec's relationship with AGLC under this
Agreement shall be that of an independent contractor. Except as contemplated in
Section 4.8, nothing in this Agreement shall be construed to designate
ThermoRetec, or any of its employees, consultants or subcontractors as
employees, agents, joint venturers or partners of AGLC, and each party shall be
responsible for the expenses of its own employees.
12. Health and Safety.
12.1 Avoidance of Harm. ThermoRetec shall conduct all Services in a
manner to avoid risk of bodily harm to persons or damage to property and in full
compliance with all Governmental Requirements and Orders, including without
limitation, the requirements of the Occupational Safety and Health Act and the
Mine Safety and Health Act, as well as AGLC's safety requirements. Further,
ThermoRetec shall periodically inspect materials and equipment to identify any
unsafe conditions and shall promptly take action to correct any condition which
presents such a risk.
12.2 Appropriate Knowledge. ThermoRetec represents and warrants that it
is fully qualified and knowledgeable with respect to all health and safety
requirements relating to the Services and that as an independent contractor,
ThermoRetec shall be solely responsible for compliance with those requirements.
12.3 Safety Equipment. ThermoRetec shall provide and maintain its own
safety equipment in accordance with all applicable Governmental Requirements and
Orders. ThermoRetec is responsible for providing its employees and
subcontractors with adequate information and training in conformance with
regulatory requirements.
12.4 Notification. In the event of accident, injury or incident
involving health, safety or damage to property, in addition to its notification
requirements and other obligations under applicable Governmental Requirements
and Orders, ThermoRetec shall immediately notify AGLC and shall submit a report
on the incident in writing within 48 hours of such occurrence. ThermoRetec shall
maintain accurate records of all such occurrences and shall furnish AGLC with
such reports on an annual basis.
13. Survival and Severability. All rights and restrictions contained herein may
be exercised and shall be applicable and binding only to the extent that they do
not violate any applicable Governmental Requirements and Orders and are intended
to be limited to the extent necessary to render this Agreement legal, valid and
enforceable. If any term of this Agreement, or part thereof, not essential to
the commercial purpose of this Agreement shall be held to be illegal, invalid or
unenforceable by a court of competent jurisdiction, it is the intention of the
parties that the remaining terms hereof, or parts thereof, shall constitute
their agreement with respect to the subject matter hereof, and all such
remaining terms, or parts thereof, shall remain in full force and effect. To the
extent legally permissible, it is the intention of the parties that any illegal,
invalid or unenforceable provision of this Agreement shall be replaced by a
valid provision which will implement the commercial purpose of the illegal,
invalid or unenforceable provision.
14. Force Majeure and Other Delays.
14.1 Force Majeure. Neither party hereto shall be liable for its
failure to perform hereunder, or delays in performing hereunder, in whole or in
part, due to contingencies beyond its reasonable control, including, but not
limited to, strikes, work stoppages or delays, labor disputes, riots, wars, acts
of God or nature, injunction or compliance with any law, regulation or order,
whether valid or invalid, or delays, decisions or inactions of any governmental
body or agency whether now existing or hereafter created (individually, each
being a "Force Majeure Event"). The party claiming excuse from performance or
delay in performance by reason of the occurrence shall give the other party
prompt notice in writing of the occurrence and shall use its best efforts to
remove or mitigate the effects of the Force Majeure Event upon its performance
hereunder. Anything herein to the contrary, ThermoRetec shall not be allowed to
claim excuse from performance by reason of AGLC's failure to receive any
approvals, authorizations or consents from the Georgia Environmental Protection
Department, the Georgia Public Service Commission or any other governmental
agency that has authority or responsibility with respect to the Services if such
failure arises from ThermoRetec's negligent act or omission or other breach of
this Agreement.
14.2 AGLC Options. If any Force Majeure Event substantially prevents,
hinders or delays performance of the Services for more than 15 consecutive days,
then at AGLC's option:
(A) AGLC may procure such interrupted Services from an alternate
source at its expense and withhold payment to ThermoRetec
therefor, provided that AGLC continues to make payments to
ThermoRetec hereunder for Services that ThermoRetec has and
continues to provide; or
(B) until such time as ThermoRetec has restored the interrupted
Services, AGLC may suspend this Agreement effective as of a
date specified by AGLC in a written notice to ThermoRetec, and
AGLC will pay all fees due and payable through such effective
date.
15. Notices. All notices and other communications required or permitted to be
given or made under this Agreement shall be in writing and delivered personally
or sent by prepaid, first class, certified or registered mail, return receipt
requested, by a reputable overnight express delivery service, or by facsimile
transmission, to the intended recipient thereof at its address or facsimile
number set out below. Any such notice or communication shall be deemed to have
been duly given immediately (if given or made in person or by facsimile
confirmed by mailing a copy thereof to the recipient in accordance with this
Section 15 on the date of such facsimile), two days after mailing (if given or
made by letter sent by express delivery service), or five days after mailing (if
given or made by mail), and in proving same, it shall be sufficient to show that
the envelope containing the same was delivered to the delivery or postal service
and duly addressed, or that receipt of a facsimile was confirmed by the
recipient as provided above. The addresses and facsimile numbers of the parties
for purposes of this Agreement are:
If to ThermoRetec, to: With a copy to:
Tim Goodson, Environmental Program Director ThermoRetec Consulting Corp.
ThermoRetec Consulting Corporation 300 Baker Avenue
1140 Hammond Drive - Suite C-3200 Concord, MA 01742
Atlanta, GA 30328 Attn: President
Phone: 770.522.9300 Phone: 978-371-1422
Fax: 770.522.9960 Fax: 978-369-9279
and in the absence of the Program Director, alternatively to:
Scott Keating, Operations Manager
ThermoRetec Consulting Corporation
1140 Hammond Drive - Suite C-3200
Atlanta, GA 30328
Phone: 770.522.9300
Fax: 770.522.9960
If to AGLC, to: With a copies to:
1251 Caroline Street, NE 1251 Caroline Street, NE
Atlanta, GA 30307 Atlanta, GA 30307
Attn: Chief Engineer Attn: Vice President, Engineering
Phone: 404-584-3487 Phone:
Fax: 404-584-3489 Fax:
Edward Kazmarek, Esq.
Kilpatrick Stockton LLP
1100 Peachtree Street
Suite 2800
Atlanta, GA 30309
Phone: 404-815-6496
Fax: 404-815-6555
16. Disputes and Choice of Law.
16.1 Dispute Resolution. Any and all disputes arising out of or in
connection with the negotiation, execution, interpretation, performance or
non-performance or breach of this Agreement and the transactions contemplated
herein shall be resolved as specified in this Section 16.1.
(A) A dispute shall initially be considered in person or by
telephone by the Program Directors within 7 business days of receipt of a notice
from either party specifying the nature of the dispute.
(B) If the Program Directors do not resolve the dispute within
such 7 business days, the dispute shall be submitted to the Management Committee
for resolution. The Management Committee shall meet as often as necessary to
gather and furnish to each party all non-privileged information with respect to
the matter in issue which is appropriate and germane in connection with its
resolution. The Management Committee shall discuss the problem and negotiate in
good faith in an effort to resolve the dispute without the necessity of any
formal proceeding relating thereto. During the course of such negotiation, all
reasonable requests made by one party to the other for non-privileged
information reasonably related to this Agreement, will be honored in order that
each party may be fully advised of the other party's position. The specific
format for such discussions will be left to the discretion of the Management
Committee, but it may include the preparation of agreed-upon statements of fact
or written statements of position furnished by each party to the other party.
(C) If the Management Committee does not resolve the dispute
within 30 days after the date of receipt by the other party of a request to
submit the dispute to the Management Committee as described above (the
"Notice"), then the dispute shall be escalated to an executive officer of
ThermoRetec and an executive officer of AGL Resources, Inc. for their review and
resolution within 45 days after receipt of the Notice. If the dispute is not
resolved by these officers within such 45 day period, the parties agree to try
in good faith to resolve the dispute by mediation in Atlanta, Georgia under the
Commercial Mediation Rules of the American Arbitration Association.
(D) If the dispute is not resolved by mediation within 90 days
after the Notice, then the dispute shall be solely and finally settled by
arbitration, which shall be conducted in Atlanta, Georgia, by a panel of three
arbitrators, one of whom shall be selected by AGLC, one of whom shall be
selected by ThermoRetec, and the third of whom shall be selected by the
arbitrators selected by them. The parties renounce all recourse to litigation
and agree that the award of the arbitrators shall be final and subject to no
judicial review. The arbitrators will conduct the proceedings, including
arguments and briefs, in accordance with the rules of the American Arbitration
Association. The arbitrators will decide the issues submitted in accordance with
the provisions and commercial purposes of this Agreement, provided that all
substantial questions of law will be determined under the laws of the State of
Georgia, United States of America (without regard to its principles of conflicts
of laws). All decisions of the arbitrators will be in writing and submitted to
the parties and will set forth findings of fact and conclusions of law. In the
final award, the arbitrators will divide all costs, other than fees of counsel,
incurred in conducting the arbitration, in any manner as the arbitrators deem
just and equitable under the circumstances. Judgment on the award of the
arbitrators may be entered into by any court having jurisdiction over the party
against whom enforcement of the award is being sought. Each party agrees that
any award of the arbitrators against it and on which judgment is entered may be
executed against the assets of that party in any jurisdiction. By execution of
this Agreement, each party irrevocably consents to the jurisdiction of any court
having jurisdiction over that party for the purpose of enforcing any award.
(E) Notwithstanding any provision of this Section 16.1 to the
contrary, each party shall be entitled to seek injunctive and other equitable
relief in any court of competent jurisdiction to enforce the provisions of this
Agreement, even if a related matter has already been submitted to arbitration in
accordance with the provisions of this section.
16.2 Performance During Disputes. The parties agree to continue to
perform their respective obligations under this Agreement while a dispute is
being resolved unless and until such obligations are terminated or expire in
accordance with the provisions of this Agreement or unless such performance is
prevented by the actions of the other party.
17. Financial Audits; Oversight.
17.1 GAAP. ThermoRetec shall set up and maintain its books, records and
accounts relating to this Agreement and the Services performed hereunder in
accordance with generally accepted accounting principles consistently applied.
17.2 Financial Compliance. Upon reasonable prior notice from AGLC,
ThermoRetec shall provide AGLC, any of AGLC's representatives and the
representatives of any governmental agency approved by AGLC with access to its
facilities, data and books and records with respect to this Agreement and the
Services and any assistance that they require for the purpose of performing
financial and accounting audits, including audits or inspections of the
Services. If any audit results in ThermoRetec being notified that ThermoRetec, a
ThermoRetec representative, agent or subcontractor is not in compliance with any
financial or accounting or audit requirement, ThermoRetec shall, and shall cause
its agents, representatives or subcontractors to, promptly take actions to
comply with such audits. ThermoRetec shall bear the expense of any such response
that is (A) required by a financial or accounting or audit requirement relating
to ThermoRetec's business or (B) necessary due to ThermoRetec's non-compliance
with any financial or accounting or audit requirement imposed on ThermoRetec.
17.3 Audit. Upon reasonable prior notice from AGLC, ThermoRetec shall
provide AGLC with access to such financial records and supporting documentation
as may be requested by AGLC, and AGLC may audit the fees charged to AGLC to
determine if such fees are accurate and in accordance with this Agreement.
Except as set forth below, AGLC shall be responsible for the costs of any audits
performed pursuant to this Section 17. If, as a result of such audit, AGLC
determines that ThermoRetec has (A) overcharged AGLC, it shall notify
ThermoRetec of the amount of such overcharge, and ThermoRetec shall promptly pay
to AGLC the amount of the overcharge, plus interest at the rate of 8% per annum,
calculated from the date of the overcharge until the date of payment to AGLC, or
(B) undercharged AGLC, AGLC shall notify ThermoRetec of the amount of such
undercharge and AGLC shall pay to ThermoRetec the amount of the undercharge. If
any such audit reveals an overcharge to AGLC of 5% or more for the period being
audited, ThermoRetec shall, at AGLC's option, issue to AGLC a credit against the
fees or reimburse AGLC, for an amount equal to the costs of such audit.
17.4 Document Retention. ThermoRetec shall (A) maintain procedures
necessary to accurately monitor compliance with its obligations under this
Article 17, including compliance with the financial and accounting requirements
of the Rider, and (B) make and retain records and supporting documentation in
sufficient form and manner to document the Services and the fees paid or payable
by AGLC under this Agreement, and to document AGLC's compliance with the
financial and accounting requirements of the Rider for a period of five years
after the completion of the Services.
17.5 General Compliance. Upon reasonable prior notice from AGLC,
ThermoRetec shall provide AGLC, any of AGLC's representatives and the
representatives of any governmental agency approved by AGLC with access to its
facilities, data and books and records with respect to this Agreement and the
Services and any assistance that they require for the purpose of inspecting the
Sites, the Services or the performance thereof. If any such inspection results
in ThermoRetec being notified that ThermoRetec, a ThermoRetec representative,
agent or subcontractor is not in compliance with any applicable provision of
this Agreement or an applicable law or regulation, ThermoRetec shall, and shall
cause its agents, representatives or subcontractors to, promptly take actions to
comply with such notice.
18. Taxes.
18.1 Sales Taxes. Any payments due to ThermoRetec pursuant to Section 3
are inclusive of applicable sales, use, excise, personal property or other
similar taxes attributable to the period on or after the Effective Date based
upon or measured by (A) ThermoRetec's cost in acquiring or providing equipment,
materials, supplies or third party services furnished to or used by ThermoRetec
in providing and performing the Services, and (B) all taxes payable by
ThermoRetec with respect to its revenues, income and profit. Each party shall
bear sole responsibility for all taxes, assessments and other real property
related levies on its owned or leased real property.
18.2 Cooperation. The parties agree to reasonably cooperate with each
other in good faith to more accurately determine and reflect each party's tax
liabilities and to minimize such liability to the extent legally permissible.
Each party shall provide and make available to the other any resale certificates
and other exemption certificates or information reasonably requested by the
other party.
18.3 Use and Services Taxes. Notwithstanding any other provision of
this Agreement, if a sales, services, value added or similar tax is assessed on
ThermoRetec's provision of the Services to AGLC or on ThermoRetec's charges to
AGLC under this Agreement, AGLC will be responsible for and pay the amount of
any such tax.
19. Assignment. This Agreement shall not be assigned, delegated or transferred
by any party without the prior written approval of the other parties, which
approval shall not be unreasonably withheld; provided, however, that AGLC may
assign this Agreement to an affiliate without prior approval; provided, further,
that ThermoRetec may assign this Agreement to any party which acquires all or
substantially all of its assets in a Change of Control of ThermoRetec or a
Permitted Change of Control. Any such assignment will not relieve the party of
its obligations under this Agreement. This Agreement shall inure to the mutual
benefit of the parties and their permitted successors and assigns.
20. Entire Agreement. This Agreement shall constitute the entire agreement
between the parties with respect to the subject matter hereof and shall
supersede all previous and contemporaneous negotiations, comments and writings
by the parties, including without limitation, any and all proposals, exceptions,
or limitation provided by ThermoRetec. In no event shall the preprinted terms or
conditions found on any ThermoRetec invoice or AGLC purchase order be considered
part of this Agreement.
21. Waiver. No waiver of any breach of any provision of this Agreement
shall constitute a waiver of any prior, concurrent or subsequent
breach of the same or any other provision hereof.
22. No Third Party Beneficiaries. The parties hereto do not intend,
nor will any section hereof be interpreted, to create any third
party beneficiary rights with respect to either of the parties.
23. Consents and Approvals. The parties hereto agree that in any instance where
a consent, approval or agreement is required of a party in order for the other
party to perform under or comply with the terms and conditions of this
Agreement, then such party will not unreasonably withhold or delay such consent,
approval or agreement, and where consent, approval or agreement cannot be
provided, the party shall notify the other party in a timely manner.
24. Release of ThermoRetec Corp. If at any time a Change of Control of
ThermoRetec or Permitted Change of Control is consummated, then effective as of
the date such transaction is consummated, ThermoRetec Corp. shall be released
from its obligations under Article 6 for any claims, causes of action, suits,
damages, losses and expenses (including but not limited to reasonable attorneys
fees and amounts paid in settlement) arising from acts or omissions occurring
after the consummation of such Change of Control of ThermoRetec or Permitted
Change of Control.
25.Headings. All headings herein are not to be considered in the construction or
interpretation of any provision of this Agreement. This Agreement was drafted
with the joint participation of both parties and shall be construed neither
against nor in favor of either, but rather in accordance with the fair meaning
hereof.
26. Commencement of Actions. Neither party may bring an action, regardless of
form, arising out of this Agreement more than two years after the later to occur
of the date on which the cause of action has arisen, or the date such cause of
action was or should have been discovered.
27. Counterparts. This Agreement may be executed in counterparts,
each of which shall be deemed an original, and all of which taken
together shall constitute a single instrument.
28. Exhibits. The following Exhibits are attached hereto and incorporated
herein by reference:
Exhibit 1 - Scope of Services
Exhibit 2 - List of Sites
Exhibit 3 - Annual Performance Fee Calculation
Exhibit 4 - Categories of Cost Definitions
Exhibit 5 - Sample Subcontractor Agreements
Exhibit 6 - Approved Subcontractors
IN WITNESS WHEREOF, the parties have caused this Agreement to be executed by
their duly authorized representatives on the date first above written.
ATLANTA GAS LIGHT COMPANY THERMORETEC CONSULTING CORP.
By: /s/ Paul R. Shlanta By: /s/ Michael D. Knupp
-------------------- ---------------------
Name: Paul R. Shlanta Name: Michael D. Knupp
-------------------- ---------------------
Title: Sr. Vice President Title: President
----------------------- ---------------------
The undersigned agrees to be a party to this Agreement solely for purpose of
providing indemnification under Article 6 and agrees that notice given to
ThermoRetec in accordance with this Agreement shall constitute notice to the
undersigned.
ThermoRetec Corp.
By: /s/ Robert W. Dunlop
---------------------
Name: Robert W. Dunlop
---------------------
Title: President
---------------------
4
ATLLIB01 908254.11
EXHIBIT 1
Scope of Services
Except as specifically limited in this Exhibit 1, or in the Master Environmental
Management Services Agreement, ThermoRetec shall provide general management of
the investigation and cleanup of all Sites listed in Exhibit 2. Without limiting
the generality of this obligation, the Services shall include, without
limitation, the following:
1) AGLC-Lead Sites. With respect to those Sites where AGLC is solely
responsible for Site activities ("AGLC-Lead Sites") (Augusta, Griffin,
Macon #1, Rome, Savannah, Valdosta, and Waycross):
a) Administrative and General:
--------------------------
i) General. Overall management and coordination for
innovative, cost-effective, and timely cleanup of
the Sites in accordance with the Plan and all
applicable Governmental Requirements and Orders.
ii) Deadlines. Meet all applicable deadlines established
by EPD and PSC, except as directed by AGLC
management. Where there is a risk of non-compliance
with applicable deadlines, inform AGLC management at
the earliest possible point, develop actions and
determine with AGLC management their appropriateness,
and take all appropriate measures to overcome any
impediments to meeting deadlines, and, where
necessary, assist AGLC management in communicating
the appropriate facts and justifications to EPD
and/or the PSC.
iii) Subcontractors. Identify appropriate remediation
subcontractors or suppliers, prepare scopes of work,
solicit proposals, evaluate responses, coordinate
selection of subcontractors with AGLC management, and
notify AGLC management of any principal or alliance
subcontractors.
iv) Stakeholders. In coordination with AGLC management,
identify key off-site entities with interests or
concerns potentially affected by the MGP program, and
assist AGLC as requested in the development and
implementation of measures to respond to these
interests or concerns. Identify those persons for
whose property AGLC must obtain access and make
suitable and necessary arrangements.
v) Claim Identification. Where ThermoRetec becomes aware
of claims or threatened claims of property damage or
bodily injury, report that fact promptly to AGLC
management and assist AGLC counsel, as requested, in
evaluating and responding to such.
vi) Cost Recovery. Assist outside counsel, as requested,
in PRP cost recovery actions or negotiations,
including providing documentation, testimony, and
other support necessary to justify the work,
expenses, and remediation decisions.
vii) Property Disposition. In connection with AGLC
management, assist in developing property
disposition plans, employing remediation alternatives
appropriate for property reuse or redevelopment.
viii) Recordkeeping. Maintain all files and records as
necessary, including those as required for PSC audit
and reporting purposes, as necessary for compliance
with the National Contingency Plan ("NCP"), and as
required under applicable rules and orders governing
the cleanup of the Sites.
ix) Regulatory Negotiations. In consultation with and
as requested by AGLC, represent AGLC and lead
negotiations with environmental agencies, identifying
for AGLC management all key strategic issues.
x) Site Closure. Supervise and conduct all Site closure
studies, prepare reports, and obtain from EPD all
necessary closure documentation, delisting decisions,
"no further action" letters, and other forms of
regulatory finality.
b) Technical.
---------
i) Investigations. Supervise/conduct all remedial
investigations and Site assessments.
ii) Studies. Supervise/conduct all required research
initiatives (such as natural attenuation,
sediments, and wetlands).
iii) CAPs. Supervise/conduct the preparation of all
corrective action plans.
iv) Remedial Design. Supervise/conduct the preparation
of all remedial designs, including the preparation of
appropriate remedial design documents.
v) Remedial Action. Supervise all cleanup activities
performed by subcontractors, assuring that all
remedial objectives have been attained and all
remedial actions comply with all requirements
established by governmental orders, regulations,
statutes, or agreements.
vi) Technical Documentation. Prepare all reports,
notices, and other documentation for EPD necessary
under applicable rules or orders, or as otherwise
appropriate.
c) Financial.
---------
i) Cost Estimates. Prepare probabilistic cost models, as required
for establishing forward-looking estimates of Expected Costs for
each Site.
ii) Engineering Cost Estimates. Prepare engineering cost estimates for
remediation costs or remedial alternatives.
iii) Cash flow. Prepare remedial project estimated cash flows.
iv) Insurance. Provide assistance to develop insurance coverage strategy
for the Sites to cover at least the risks of additional remediation
costs, regulatory reopeners, and third-party property damage and
personal injury claims.
2) Non-AGLC-Lead Sites. For those Sites where AGLC shares responsibility
with Georgia Power Company (Athens and Brunswick), and for those Sites
where AGLC is a member of a PRP group (Sanford, St. Augustine, and
Orlando):
a) Administrative and General.
--------------------------
i) Committees. In consultation with AGLC management,
represent AGLC as the technical and management member
of any committees (or, if so directed by AGLC
management, assist an AGLC representative in such a
role). Take such actions on such committees as are
necessary and appropriate to encourage innovative,
cost-effective, and timely cleanups of the Sites.
ii) Coordination. Represent AGLC's interests in decisions
by committees regarding selection of subcontractors,
preparation of scopes of work, evaluation of
proposals, and other tasks. In consultation with AGLC
management, represent AGLC's interests in the
identification of off-Site stakeholders and the
development of measures to address the interests or
concerns of such stakeholders. Represent AGLC's
interests in the technical review of reports and
communications with the regulatory agencies.
iii) Cost allocation. Assist outside counsel, as
requested, in the development of information
necessary for cost allocation negotiations.
iv) Recordkeeping. Maintain all files and records
including those as required for PSC audit and
reporting purposes, as necessary for compliance with
the NCP, and as required under applicable rules and
orders governing the cleanup of the Sites.
v) Regulatory Negotiations. To the extent group
negotiations involving regulatory agencies require or
would be aided by technical participation, in
consultation with AGLC management, represent AGLC and
assist the committees to present technical issues to
the regulatory agencies.
b) Technical.
---------
i) Studies, Assessments, and Plans. Review
recommendations for studies or assessments for
investigation or cleanup of the Sites. In
consultation with AGLC management, represent AGLC's
interests in the conduct of such studies and
assessments and the conduct of required research.
Represent AGLC's interests in the preparation of any
Corrective Action Plans or other remedial action
proposals.
ii) Remedial Design and Action. Represent AGLC's
interests in the review and supervision of all
remedial design activities and the conduct of all
remedial actions.
iii) Documentation. Review or arrange for the review of
reports, scopes of work, and other documentation
prepared in the course of such studies or
assessments.
c) Financial.
---------
i) Cost Estimates. Prepare probabilistic cost estimates,
as required for establishing forward-looking
estimates of Expected Costs for each Site. Represent
AGLC's interests in the preparation or review of
engineering cost estimates of closure costs or
remedial alternatives. Prepare remedial project
estimated cash flows.
ii) Insurance. Provide assistance to develop insurance
coverage strategy for the Sites to cover at least the
risks of additional remediation costs, regulatory
reopeners, and third-party property damage and
personal injury claims.
ATLLIB01 908254.11
EXHIBIT 2
List of Sites
AGLC Lead Sites (Georgia)
Augusta
Griffin
Macon
Rome
Savannah
Valdosta
Waycross
Non-AGLC Lead Sites (Georgia and Florida)
- -----------------------------------------
Athens
Brunswick
Orlando
Sanford
St. Augustine
4
ATLLIB01 908254.11
EXHIBIT 3
Annual Performance Fee Calculation
1. During the Initial Term AGLC shall pay ThermoRetec the following two
performance fees (the "Aggregate Performance Fees"):
(a) A "Site Management Fee" for the Non-AGLC-Lead Sites
(as defined in Exhibit 2); and
(b) A "Performance Fee" for the AGLC-Lead Sites.
2. Site Management Fee. The Site Management Fee shall be payable monthly
in accordance with Section 3.4 and shall be equal to 10.5% of the
Actual Costs associated with the Non-AGLC-Lead Sites.
3. Performance Fee.
---------------
(a) General. The Performance Fee shall be calculated as set forth
below:
(i) The parties believe that the total Actual Costs for
the AGLC-Lead Sites will be ${*} ("Expected
Cost"). This expectation is subject to the
assumptions and caveats set forth on Attachment 1 of
this Exhibit. The Expected Cost, as the Parties
anticipate it will be incurred on an annual basis,
unless adjusted for additional services as provided
for in paragraphs 2.2 or 2.3 of the Master Services
Agreement, forms the basis for the calculation of the
Performance Fee. The expected Actual Costs for the
AGLC-Lead Sites are shown below.
Current Estimate
of Actual Cost by
Contract Year Contract Year
Year 1(Jan. 1, 2000/June 30, 2000) $ {*}
Year 2(July 1, 2000/June 30, 2001) {*}
Year 3(July 1, 2001/June 30, 2002) {*}
Year 4(July 1, 2002/June 30, 2003) {*}
Year 5(July 1, 2003/June 30, 2004) {*}
Year 6(July 1, 2004/Jan. 31, 2005) {*}
-----------
Expected Cost: $ {*}
(i) The parties acknowledge that the expected Actual Costs per year will
be adjusted annually with the approval of the Annual Budget.
(ii) If, at the end of the Initial Term, the total Actual Costs for the
AGLC-Lead Sites are equal to the Expected Cost, ThermoRetec will
have earned a total Performance Fee of ${*}. For any other total
Actual Costs, the Performance Fee will be adjusted as set forth
below.
(b) Year 1 Calculation: Subject to paragraph (d) below, for
purposes of calculating the Performance Fee during the first
Contract Year, the parties have agreed that the Performance
Fee will be ${*} per month, which would be equal to a pro
rata amount of ThermoRetec's Performance Fee during such
period, if the Actual Costs for such period were equal to the
forecasted amount (${*} million / ${*} million) * ${*}
million / {*} for the initial Contract Year (a 6 month period)).
The Performance Fee shall be paid by AGLC at the same time
that it makes its monthly payment under Section 3.4.
(c) Subsequent Year Calculations: Within thirty (30) days after
the end of each Contract Year, ThermoRetec shall total the
Actual Costs for the preceding Contract Year(s) and shall,
using these Actual Costs, recalculate the forecast Expected
Cost (EC{R}) and revised budgeted Actual Costs for each
subsequent Contract Year (BC{Rn}). The Performance Fee for the
upcoming Contract Year (PF{n}) will then be calculated according
to the following formula:
(i) The slope (S) of the Performance Fee function is given by:
S = ${*} (Eq. 1)
------------------------------
${*} - ${*}
S = -0.370899
(ii) The Total Performance Fee (PF{T}) based upon the recalculated
Expected Cost(ECR)shall be determined pursuant to the following
formula:
PF{T} = (EC{R} - C{max}) * S (Eq. 2)
where
C{max} = ${*},
unless adjusted as setforth in paragraph 3(g), below.
(iii) The Performance Fee in Contract Year n (PF{n}) is determined
pursuant to the following formula:
PF{n} = (PF{T}-sum of previous years PF{n})*BC{Rn}/sum of remaining years BC{R}
(Eq. 3)
(iv) Given the complexity of the calculation, three sample
calculations are set forth on Attachment 2 to this Exhibit.
The sample calculations are illustrative in nature and are
not binding on the parties.
(d) Monthly Payments. (i) The Performance Fee shall be paid monthly at the
same time payments are made under Section 3.4. The amount actually
paid each month shall be equal to eighty percent (80%) multiplied by
one-twelfth (1/12) of the Performance Fee for such Contract Year. The
remaining 20% shall be withheld and applied as described in paragraphs
(e) and (f) below.
(i) If the Performance Fee for any particular Contract
Year is a negative number, then AGLC shall make no
payment of the Performance Fee to ThermoRetec for
such Contract Year, but shall instead be entitled to
off-set the Negative Performance Fee first against
Site Management Fees during such year, and at the end
of such Contract Year, against any retained
Performance Fees from previous years.
(e) Year-End Payment. Within sixty (60) days after the end of each
Contract Year, except the final Contract Year within the
Initial Term, ThermoRetec shall be paid up to fifty percent
(50%) of the withheld portion of the Performance Fee for the
preceding Contract Year, as the Management Committee deems
appropriate given AGLC's satisfaction with ThermoRetec's
performance and such other factors as the Management Committee
considers appropriate. All withheld amounts that are not paid
at year end shall continue to be withheld until the end of the
Initial Term.
(f) Payment upon Expiration of Initial Term. Within sixty (60)
days after the end of the Initial Term, ThermoRetec shall be
paid the balance of all withheld amounts from the previous
years, adjusted for any deficiencies or make-up, which may
have occurred during the Initial Term.
(g) Adjustment for Windfalls. The parties understand and agree
that there are factors beyond the reasonable control of
ThermoRetec for which it would be unfair to reward ThermoRetec
(for lower costs) or penalize ThermoRetec (for higher costs)
as a result of these factors.
A windfall is the difference between the yearly budgeted cost
and the actual cost for soil remediation at a site or operable
unit.
A windfall does not arise when better than expected
performance results due to construction efficiency,
procedures, systems, schedule, strategy, people or other
innovative factors. A +/- 5% change in Actual Cost for the
Augusta, Macon or Savannah Sites or any operable unit thereof
shall not constitute a Windfall situation. A change in Actual
Cost for all other sites shall not constitute a windfall.
Accordingly, should any such windfall factors arise at the
Augusta, Macon or Savannah Sites or any operable unit thereof,
the benchmarks according to which the Performance Fee is
calculated shall be modified as follows. ThermoRetec shall
calculate or show the change to the Expected Cost as a result
of the windfall event, C{W}. C{max} would then be increased or
decreased by C{W}, and the recalculated C{maxr}, unless the
Management Committee decides on equitable grounds to use a
different figure, shall be used in all subsequent
calculations.
(h) Adjustment for Lower Costs. If the total Actual Costs for the
AGLC-Lead Sites is or is forecasted to be less than ${*}, as
adjusted for the sum of all windfall savings or costs, then
the parties agree to negotiate an acceptable equitable
adjustment to the formula set forth above.
(i) Adjustment for Time-Shifted Costs. If a substantial amount of
Actual Costs forecasted for one Contract Year are actually
incurred in a different Contract Year, such that the
calculation of the Performance Fee for that one Contract Year
would be unfair to either party under the circumstances, the
parties agree to negotiate an acceptable equitable adjustment
to the formulae set forth above. This clause shall have no
effect on ThermoRetec's ability to accrue costs for incurred
work, which will not be billed until after the close of the
Contract Year (and in accordance with accepted financial
practices).
(j) Limitations. Subject to paragraph (h) above, the parties
acknowledge and agree that the final aggregate Performance Fee
shall not exceed ${*} under any circumstances, nor shall it be
less than zero.
ATLLIB01 908254.11
Attachment 1
Site Assumptions and Caveats
- ------------------- -------------------------------------------------------------------------------- -------------------------------
Site Assumptions Caveats
- ------------------- -------------------------------------------------------------------------------- -------------------------------
Athens No groundwater pump & treat required {*}
{*}
- ------------------- -------------------------------------------------------------------------------- -------------------------------
- ------------------- -------------------------------------------------------------------------------- -------------------------------
Augusta {*} {*}
{*} {*}
Thermal Desorption can effectively meet RRS
{*}
- ------------------- -------------------------------------------------------------------------------- -------------------------------
- ------------------- -------------------------------------------------------------------------------- -------------------------------
Brunswick {*} No groundwater pump & treat
will be required
{*}
Natural attenuation is the final remedy for groundwater
- ------------------- -------------------------------------------------------------------------------- -------------------------------
- ------------------- -------------------------------------------------------------------------------- -------------------------------
Griffin No groundwater pump & treat required
- ------------------- -------------------------------------------------------------------------------- -------------------------------
- ------------------- -------------------------------------------------------------------------------- -------------------------------
Macon Trestle at river will not require removal {*}
{*} {*}
All soil manifested as non-hazardous
{*}
{*}
{*}
- ------------------- -------------------------------------------------------------------------------- -------------------------------
- ------------------- -------------------------------------------------------------------------------- -------------------------------
Rome {*} {*} {*}
{*}
- ------------------- -------------------------------------------------------------------------------- -------------------------------
- ------------------- -------------------------------------------------------------------------------- -------------------------------
Savannah {*} {*}
{*} No Significant archeological
{*} findings will be made
No hazardous waste costs
- ------------------- -------------------------------------------------------------------------------- -------------------------------
- ------------------- -------------------------------------------------------------------------------- -------------------------------
Valdosta GPC property excavation will not be larger than currently anticipated {*}
Wetlands impacts are not more extensive than estimated
- ------------------- -------------------------------------------------------------------------------- -------------------------------
- ------------------- -------------------------------------------------------------------------------- -------------------------------
Waycross Onsite excavation will not be larger than anticipated {*}
{*}
- ------------------- -------------------------------------------------------------------------------- -------------------------------
- ------------------- -------------------------------------------------------------------------------- -------------------------------
Sanford All impacted soils will be remediated via excavation {*}
Natural attenuation is the final remedy for groundwater
- ------------------- -------------------------------------------------------------------------------- -------------------------------
- ------------------- -------------------------------------------------------------------------------- -------------------------------
St. Augustine AGLC will pay for thermal desorption of regulated materials excavated from
the harbor Excavation in the harbor below
3 feet is considered part of
the property development
activities
- ------------------- -------------------------------------------------------------------------------- -------------------------------
Attachment 2
(1) Costs are as expected until year 3, when Retec obtains a ${*} million
cost savings ({*} versus {*}), yielding a revised expected cost (ECR)
of ${*}. Retec has earned performance fees up to this point of ${*}
million. Absent any further changes, Retec's performance fees for the
remaining years are given by:
PF{T} = ({*}-{*})*S
= ${*} million (versus {*} million)
PF{4} = ({*}-{*}) * ({*}/{*})
= ${*} million
PF{5} = ({*}-{*}) * ({*}/{*}) = {*}
PF{6} = ({*}-{*}) * ({*}/{*}) = {*}
(2) Same, but in year 4, Retec's costs go up by $*** million, negating the
prior year's cost savings and increasing the revised expected cost to
$***** million.
PF{T} = ({*}-{*})*S
= {*} million (versus {*} million)
PF{5} = ({*}-{*})*({*}/{*}) = {*}
PF{6} = ({*}-{*})*({*}/{*}) = {*}
(3) Same as (1), but in year 4 Retec saves an additional ${*} million (${*}
versus ${*}), resulting in a revised total expected cost of $80.36.
PF{T} = (${*}-{*})*S
= ${*} million
PF{5} = ({*}-{*})*({*}/{*}) = {*} ({*})
PF{6} = ({*}-{*})*({*}/{*}) = {*} ({*})
EXHIBIT 4
Categories of Cost Definitions
1. Salaries and Wages
Direct Labor cost specifically the actual wages and salaries exclusive
of any bonus or fringe benefits paid to ThermoRetec employees directly
engaged in the performance of Services described in this Agreement.
2. Applied Overhead Rate
The rate applied to Direct Labor for the cost of all ThermoRetec
overhead and G&A costs as audited by the Gas Research Institute for use
as a forward pricing rate and actual final audited rates to be applied
to existing costs incurred for adjustment to actual overhead costs
incurred.
3. Supplies and Materials
The direct costs including transportation and applicable taxes of all
site and office supplies and materials purchased and consumed directly
in the performance of Services described in this Agreement. These costs
are exclusive of any markup or processing fees.
4. Subcontractors
The direct cost paid by ThermoRetec to subcontractors and consultants
for work performed in relation to the Services described in this
Agreement. Amounts are exclusive of any markup or processing fee.
5. Rentals and Leases
Rental fees for all necessary machinery and equipment, either owned by
ThermoRetec or obtained from a third-party vendor for use on Sites.
Such charges for ThermoRetec-owned machinery and equipment shall be at
competitive prices prevailing for similar use in the site-specific
areas that would be charged by a third-party vendor
6. Utilities
The actual cost of all electric, telephone, water, gas, sewer, and
heating oil for operations at the Sites, late fees or processing costs
excluded.
7. Travel, Transportation and Living Expenses
All costs reasonably incurred by ThermoRetec for travel, transportation
and living expenses of its personnel in connection with performance of
the Services.
8. Miscellaneous Expenses
Amounts paid by ThermoRetec on behalf of AGLC for all other items or
services used or consumed directly in the performance of Services
described in this Agreement. Amounts should be exclusive of any markup
or processing fees.
9. General
Anything herein to the contrary notwithstanding, nothing in this
Agreement shall permit any cost or expense incurred by ThermoRetec to
be recovered more than once.
EXHIBIT 5
Sample Subcontractor Agreements
ThermoRetec Consulting Corporation
MASTER SUBCONTRACT SERVICES AGREEMENT
THIS AGREEMENT is made this ____ day of _________, ______ by and between:
ThermoRetec Consulting Corporation
9 Damonmill Square, Suite 3-A
Concord, MA 01742-2851
(hereinafter called "ThermoRetec"), and
(hereinafter called "Subcontractor")
WITNESSETH:
ARTICLE 1 - TERM. This agreement is effective from __________ to
_________. The term of this Agreement may be extended by the mutual agreement of
the parties.
ARTICLE 2 - SCOPE OF SERVICES. The Scope of Services is hereinafter
referred to as the "Work". Subcontractor shall provide qualified personnel to
perform services generally in the area of ___________________ services.
Individual tasks will be authorized by written Work Orders (Attachment 1) issued
by ThermoRetec from time to time and accepted in writing by Subcontractor.
Each Work Order hereunder shall refer to this Agreement, shall be
governed by the terms and provisions hereof, and shall indicate the scope of and
include any required data or specifications for the Work to be performed
pursuant thereto. Subcontractor shall not proceed with any phase of any work
prior to the receipt of a written order describing such work and subcontractor's
written acceptance of such order. Each Work Order will contain a price which
will not be exceeded without a written change to the Work Order. No other terms
not specifically noted in this Agreement will apply.
In the event of conflict among documents pertaining to the Work, the
order of priority shall be: (1) This Agreement; (2) ThermoRetec Work Order; (3)
Written Work Order Change; (4) Request for Quotation; (5) ThermoRetec
Specifications; (6) ThermoRetec Drawings.
ARTICLE 3 - INTENT. ThermoRetec and its Client desire to complete the
Work in an economical mariner consistent with the Scope of Services.
Subcontractor, recognizing the trust and confidence established with ThermoRetec
by virtue of this Agreement, agrees to use its best efforts in furnishing skill
and judgment in the scheduling and execution of the Work consistent with the
interests of ThermoRetec and in accordance with its requests and approvals.
ARTICLE 4 - INVOICING AND PAYMENT. ThermoRetec shall pay Subcontractor
for services rendered in accordance with Subcontractor's quoted price list dated
_________________, which is attached and made a part hereof as Attachment II.
The following procedures will be used in making reimbursements under this
Agreement:
(a) No less than once per month during the progress of the Work,
Subcontractor shall provide a separate invoice to ThermoRetec for each Work
Order issued under this Agreement for all costs incurred by the Subcontractor
during the period covered by the invoice. Invoices will show a breakdown of the
work performed, broken down by the cost basis noted in each work order. Invoices
for orders performed on a Time and Material (T&M) cost plus basis must be
supported with copies of daily time cards and copies of receipts for all
materials and travel expenses. Each invoice will show the Master Services date,
Work Order No., Work Order date, Work Order amount, balance of funds remaining
on the Work Order, ThermoRetec's Project No., and the name of ThermoRetec's
Representative named on the Work Order. Description of services provided should
document site location and detail scope of work.
Subcontractor will submit original invoice and one copy to the Work
Order Representative.
(b) Properly supported and approved invoices are due and payable to the
Subcontractor within five (5) working days of ThermoRetec's reimbursement by its
client but in no event more than sixty-five (65) days from the date of receipt
by ThermoRetec's Accounts Payable department. In order to expedite payment,
Subcontractor should submit invoices no later than the end of the third week of
each month.
(c) For any work performed on a Time and Materials basis, Subcontractor
shall maintain accurate accounting records of all reimbursable costs paid or
incurred by Subcontractor in connection with the Work and shall permit
ThermoRetec to have access during regular business hours to all records, account
books, vouchers, invoices, and payroll related to the cost of the Work. In the
event ThermoRetec desires to perform an audit of Subcontractor's cost records,
it shall be completed within one (1) year after the final billing is presented
to ThermoRetec.
(d) For Work Orders performed on a Lump Sum, Fixed Price basis, or Unit
Price basis, ThermoRetec's audit rights under 4(c) above do not apply.
(e) At ThermoRetec's request, Subcontractor shall furnish evidence,
satisfactory to ThermoRetec, that all labor and materials furnished during the
period covered by each invoice have been paid for in full and that the Work is
not subject to liens or claims on account thereof. ThermoRetec may withhold
payment of invoices until Subcontractor furnishes such evidence.
Any Work performed under this Agreement which require progress payments
may be subject to a ten percent (10%) retainage. The final retention invoice
shall be submitted for payment after completion and final acceptance of the Work
by ThermoRetec. Payment for retained amounts is due 30 days from receipt by
ThermoRetec's Subcontract Department of an approved invoice.
Subcontractor must submit proper Insurance Certificates (Attachment
III) and IRS Form W-9, Attachment IV before any payment will be made by
ThermoRetec under this Agreement.
ARTICLE 5 - COMPLIANCE WITH LAWS. Subcontractor agrees to comply with
all applicable local, state and federal laws and regulations pertaining to the
Work under this Agreement.
ARTICLE 6 - INDEPENDENT CONTRACTOR. The relationship of Subcontractor
to ThermoRetec shall be that of an Independent Contractor.
ARTICLE 7 - TERMINATION. This Agreement shall continue in force for the
term specified in Article 1; provided, however, that ThermoRetec shall have the
right to terminate this Agreement pursuant to the provisions of this Article
hereunder.
(a) ThermoRetec and Client shall have the right at any time, with or
without cause, to terminate further performance of the Work by written notice to
Subcontractor specifying the date of termination.
(b) This Agreement may be terminated by ThermoRetec in whole or in part
in writing in the event of a default consisting of substantial failure by the
Subcontractor to fulfill its obligations under this Agreement through no fault
of ThermoRetec, provided, that no such termination may be effected unless the
Subcontractor is given written notice of default and a reasonable opportunity to
cure the default.
(c) If termination is effected under 7(a) above for ThermoRetec's or
Client's convenience, and Subcontractor is not in default, ThermoRetec will pay
Subcontractor all reimbursable costs which are due as of the effective date of
termination, and in addition, those reimbursable costs incurred in good faith by
Subcontractor after the effective date of termination in connection with (1)
demobilization of equipment and personnel and (2) any necessary subcontract
and/or vendor settlements.
(d) Upon receipt of termination notice pursuant to Paragraphs 7(a) or
7(b) above, Subcontractor shall (1) promptly discontinue all Work affected
(unless the notice directs otherwise), and (2) deliver to ThermoRetec all data,
drawings, specifications, reports, summaries, and such other information and
materials as may have been accumulated by Subcontractor in performing the Work,
whether completed or in process, with the exception of one record copy of such
information which shall be kept by Subcontractor.
(e) The rights and remedies of ThermoRetec and Subcontractor provided
in this Article are in addition to any other rights and remedies provided by law
or under this Agreement.
ARTICLE 8 - NOTICES. The ThermoRetec Representative named in each Work
Order shall receive all communication related to the Work Order and shall be
available as necessary for issuing Work Orders, Change Orders, inspecting and
approving the Work, and for approving invoices and other records of the
Subcontractor. ThermoRetec's Representative may delegate his/her work and
authority to others as desired, confirming such action in writing to
Subcontractor.
ThermoRetec's address for legal notices is:
Name: Charlotte E. Lawson, Corporate Contracts Administrator
Company Name: ThermoRetec Consulting Corporation
Address: 9 Damonmill Square, Suite 3-A
Concord, MA 01742-2851
Telephone No.: 978-371-1422
FAX: 978-369-9279
Subcontractor's Representative shall be available for conferring with,
receiving requests, and taking communications from ThermoRetec. Subcontractor's
Representative may delegate his/her authority to others within Subcontractor's
organization as he/she desires, confirming such action in writing to
ThermoRetec, prior to delegation of said authority. Subcontractor's
Representative and address for notices and communications is:
Name:
Company Name:
Address:
Telephone No.:
Fax No.:
ARTICLE 9 - ACCESS TO THE WORK. ThermoRetec and ThermoRetec's Client
shall have access at all reasonable times to all Work done and product made by
or for Subcontractor pursuant to any Work Order hereunder and such Work and
product shall be the property of ThermoRetec at all times. Subcontractor shall
turn over to ThermoRetec all such Work done and product made upon timely request
by ThermoRetec during the progress of the Work or at the expiration or
termination of the Work to be performed under any Order hereunder.
ARTICLE 10 - CONFIDENTIALITY. Subcontractor will, for the duration of
this Agreement and for a period of five (5) years thereafter, retain in
confidence all technical and business information designated in writing as
"CONFIDENTIAL" and disclosed by ThermoRetec to Subcontractor except:
(a) ThermoRetec's and/or ThermoRetec's Client's technical and
business information previously known to Subcontractor; or
(b) ThermoRetec's and/or ThermoRetec's Client's technical and
business information which becomes known to Subcontractor through legal means;
or
(c) ThermoRetec's and/or ThermoRetec's Client's technical and business
information which is public knowledge or subsequently becomes public knowledge
through no fault of Subcontractor and without breach of this Agreement.
Neither party shall be liable for the inadvertent or accidental
disclosure of such information, if such disclosure occurs, despite the exercise
of the same degree of care as such party normally takes to preserve and
safeguard its own confidential information.
ARTICLE 11 - LIABILITY, INDEMNIFICATION AND INSURANCE. Subcontractor
agrees to indemnify, save and keep harmless ThermoRetec and ThermoRetec's Client
from and against any and all loss, damage, cost, charges or expenses or claims
for same which ThermoRetec or ThermoRetec's Client may suffer or sustain or be
in any way subjected to on account of injury to or death of any person or damage
to or loss of property arising out of the negligent performance of this
Agreement by Subcontractor, its servants, employees, agents or representatives.
Subcontractor agrees to indemnify, hold harmless, protect and defend
ThermoRetec, its successors or assigns, its clients and the user of
Subcontractor's goods and services against all suits and from all claims,
demands, judgment, costs and attorney's fees for actual or alleged infringement
of letters patent, trademarks and copyrights in connection with goods and
services supplied hereunder, provided that they are used as normally intended
and are not made to ThermoRetec's own specifications.
Subcontractor agrees to provide and maintain at its own expense,
insurance coverage until the Work is completed and accepted by ThermoRetec and
to furnish certificates (Attachment III) from its insurance carrier, showing
that Subcontractor carries insurance in the following minimum limits:
(a) Worker's Compensation, including coverage under United States
Longshoremen's and Harbor Worker's Act where applicable, at the statutory limits
for the state or states in which the work is to be performed. Employer's
Liability insurance in the amount of $500,000.
(b) Comprehensive General Public Liability insurance in the amount of
$1,000,000 combined single limit for bodily injury and property damage,
including product liability, completed operations, contractual liability and,
where applicable, coverage for damage caused by blasting, collapse or structural
injury and/or damage to underground utilities.
(c) Automobile Public Liability in the amount of $1,000,000 per
occurrence for bodily injury and property damage, including non-owned
automobiles.
All such policies shall be in form and with insurance carriers
acceptable to ThermoRetec. Subcontractor will cause ThermoRetec to be designated
as additional insured under such policy. Subcontractor must provide ThermoRetec
with thirty (30) days prior written notice of cancellation before cancellation
of any policy will be effective.
ARTICLE 12 - FORCE MAJEURE. Either party shall be excused from
performance of its obligations under this Agreement, other than payment of
monies when due, in the event and to the extent that such performance is delayed
or prevented by any cause or event beyond the reasonable control of such party
including, but not limited to, any act of God or of the public enemy, war,
insurrection, riot, civil disturbances, labor dispute, fire, flood, washouts,
storms, landslides, explosion, any embargo, or any act or order of any military
or civil authority, including courts. Within a reasonable period of time after a
party determines that an event of force majeure exists which delays or prevents
the performance of its obligations under this Agreement, such party shall give
the other party notice thereof, and such party shall use all reasonable efforts
to eliminate such event in so far as possible with a minimum of delay. Nothing
herein contained shall require such party to submit to what it considers to be
unreasonable conditions or restrictions.
ARTICLE 13 - SUCCESSORS AND ASSIGNS. This Agreement shall inure to the
benefit of and be binding upon the parties hereto and their respective
successors and assigns. Neither party may assign its interests herein (unless
the assignee assumes in writing assignor's obligations hereunder) without the
prior written consent of the party, which consent will not be unreasonably
withheld. No assignment shall operate to relieve the assignor of its obligation
under this Agreement.
ARTICLE 14 - HEALTH & SAFETY. As the prime contractor, ThermoRetec will
be responsible for supplying copies of the Project Specific Health & Safety Plan
("Plan") to the Subcontractor prior to the initiation of any work activities at
a Project site. The Plan will establish the health and safety protocols to be
observed by all Subcontractor personnel assigned to the project.
Subcontractor's personnel will review the Plan with the designated
Health & Safety Coordinator prior to beginning any work on a Work Order. It is
the responsibility of the Subcontractor's personnel to abide by the requirements
of the Plan or take exception in writing prior to initiation of the Work.
Failure to abide by the requirements of the Plan may result in immediate
dismissal of Subcontractor Personnel from the job site and the termination of
this Agreement.
Before Subcontractor's personnel are allowed on the job, Subcontractor
must furnish proper documentation to the ThermoRetec representative of any
required OSHA Training, Drug Testing, Medical Surveillance and Respirator
Fit-Testing for all Subcontractor personnel on the job.
ARTICLE 15 - APPLICABLE LAW. The validity, interpretation and
performance of these terms and conditions shall be governed by the laws of the
Commonwealth of Massachusetts.
ARTICLE 16 - ATTACHMENTS. The following Attachments hereby become a
part of this Agreement:
Attachment I - Sample Work Order Form
Attachment II - Subcontractor's Price Quote
Attachment III- Subcontractor's Certificate of Insurance
Attachment IV- Subcontractor's IRS Form W-9
IN WITNESS WHEREOF, the parties have caused these presents to be executed on the
date first hereinabove written.
ThermoRetec Consulting Corporation
by: by:
Charlotte E. Lawson Name
Corporate Contracts Administrator
Title Title
Date: Date:
---------------------------------------
ATTACHMENT I
WORK ORDER
Project No.:________________________
Work Order No.:________________________________
ThermoRetec Representative:_________________/ThermoRetec Project Assistant (A/P)
Address:
Address:
Phone: FAX:
In accordance with the Subcontract Agreement between Subcontractor and
ThermoRetec dated _______________, this Work Order describes the Scope of
Services, Time Schedule, and Price and Payment Terms for the Project known as:
Scope of Services:
Time Schedule: All work to be completed
- -------------
Price Not To Exceed: Total costs not to exceed . . . . . . . . . . . . .$
- -------------------
QA/QC Criteria/Health & Safety Requirements:
Acceptance of the terms of this Work Order is acknowledged by the
following signatures of the Authorized Representatives of the parties to the
Agreement. This Work Order consists of this document and any supplemental pages
attached and referenced hereto.
Approval and Acceptance:
ThermoRetec Consulting Corporation
Signature Signature
Name Name
Date Date
ATTACHMENT III
CERTIFICATE OF INSURANCE
ATTACHMENT IV
W-9 PAYER'S REQUEST FOR TAXPAYER IDENTIFICATION NUMBER
Name of Subcontractor As Shown on Federal Account
Address
City, State, Zip Code
Taxpayer Identification Number (TIN)
Employer ID Number OR Social Security Number
Please check appropriate box:
Individual/Sole Proprietor
Corporation
Partnership
Other:
CERTIFICATION Under the penalties of perjury, I certify the
information provided on this form is true, correct
and complete.
Signature Date
Please check, if this applies to your Company.
Minority-Owned Business Enterprises
Women-Owned Business Enterprises
EXHIBIT 6
Approved Subcontractors
PROPOSED LIST OF THERMORETEC SUBCONTRACTORS FOR AGLC OUTSOURCING
1) AE Drilling Driller
2) Alliance Driller
3) BFI Landfill/Hauler
4) Chambers - Richland County Landfill Landfill/Hauler
5) Creamer Remediation Contractor
6) Donaldson, Garrett & Associates Surveyor
7) EarthTech Remediation Contractor
8) Exponent Eco-Risk
9) Gradient Risk Assessment
10) IT Corporation Remediation Contractor
11) Laidlaw Landfill/Hauler
12) Ogden Eco-Risk
13) PhytoWorks Phytoremediation
14) SE Technologies Technology Vendor
15) Savannah Laboratories Lab
16) Superior Services Landfill
17) TRC Garrow Arch/Historic Consultant
18) WRS Infrastructure and Environment, Inc. Remediation and
Construction
18) Winter Environmental Remediation Contractor
19) Williams Environmental Services Remediation Contractor
20) Law Engineering & Environmental Env. Consultant
21) Lancaster Laboratories Lab
EXISTING TRT MSAs
21) AES Laboratory
22) TEG Driller
23) Alliance Driller
24) Analytical Services Laboratory
25) ASI Analytical Services Laboratory
26) Augusta Industrial Waste Broker
27) CSRA Analytical Labs Laboratory
28) ECM CAD and Graphics CAD
29) EarthTech Remediation Contractor
30) Ferguson Harbor Remediation Contractor
31) Hussey, Gay, Bell and DeYoung Engineering Consultant
32) Savannah Laboratories Laboratory
34) Winter Environmental Remediation Contractor
SCHEDULE 8.5
Time Period in which Effective Date of Amount to be Paid to AGLC by
Termination Occurs ThermoRetec
1/1/2000 - 6/30/2000 ${*}
7/1/2000 - 6/30/2001 ${*}
7/1/2001 - 10/28/2001 ${*}
{*} The redacted portions indicated by this symbol are the subject of a
confidential treatment request and have been filed separately with the
Securities and Exchange Commission.