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HomeMy WebLinkAbout06973ORDINANCE NO. 6973 AN ORDINANCE APPROVING A PROPOSAL AND AGREEMENT FOR PROFESSIONAL CONSULTING SERVICES FROM MAXIM TECHNOLOGIES, INC. FOR A BASELINE ENVIRONMENTAL ASSESSMENT OF THE PUEBLO MEMORIAL AIRPORT AVIATION FUEL STORAGE FACILITY AND APPROPRIATING $26,261.00 FROM THE LAND SALES FUND, AND AUTHORIZING THE PRESIDENT OF THE CITY COUNCIL TO EXECUTE SAME WHEREAS, the City of Pueblo owns, operates, and maintains an aviation fuel storage facility at the Pueblo Memorial Airport; and WHEREAS, a Baseline Environmental Assessment is needed to ensure that the facility is in compliance with EPA standards; now, therefore, BE IT ORDAINED BY THE CITY COUNCIL OF PUEBLO, that: SECTION 1. Maxim Proposal No. P25009152 (Proposal) and the Agreement for Professional Consulting Services (Agreement) from Maxim Technologies, Inc., relating to a Baseline Environmental Assessment of the Pueblo Memorial Airport aviation fuel storage facility, copies of which are attached hereto, having been approved as to form by the City Attorney, are hereby approved. The President of the City Council is hereby authorized to execute said Agreement and Proposal on behalf of the City of Pueblo, a Municipal Corporation. SECTION 2. Funds in the amount of $26,261.00 are hereby appropriated from the Land Sales Fund. INTRODUCED March 24, 2003 BY AI Gurule Councilperson APPROVED: - President of City Council ATTEST: City rk PASSED AND APPROVED: April 14, 2003 TA OlO A. February 17, 2003 Mr. John O'Neal Director of Aviation Pueblo Memorial Airport 31201 Bryan Circle Pueblo, CO 81001 Subject: Pueblo Memorial Airport Aviation Fuels Storage Facility Baseline Environmental Assessment Maxim Proposal No. P25009152 Dear Mr. O'Neal: 14818 W. 6 Ave. Suite 1 -A Golden, CO 80401 -5009 Telephone: (303) 279 -7885 Facsimile: (303) 279 -7816 o TP�F r,U FEB 1 8 2003 D U R As you requested, this letter presents a proposal and associated cost -basis spreadsheet for the Subject. The purpose of the work proposed herein is to establish a baseline of environmental conditions at the aviation fuels storage facility to support a potential change in lease status. The scope -of -work, schedule, and costs proposed to achieve this purpose are discussed below. An Agreement for Professional Consulting Services that incorporates the changes to the terms and conditions mutually agreed upon by the Pueblo City Attorney and Maxim's corporate attorney is also attached. SCOPE -0F -WORK An Environmental Baseline will be established by completing four main tasks described below. Task 1— Records Review — will involve the review of facility records and interviewing site personnel to identify historical spills and maintenance - related issues that may have resulted in a release from the aviation fuels storage facility. Review of these records will be conducted prior to the subsurface investigation program to identify areas to be addressed with the subsurface investigation. It is Maxim's understanding that there have been no reportable quantities released in the aviation fuels storage facility; however, minor releases associated with maintenance or equipment failures may have resulted in the presence of petroleum hydrocarbons in the soils or groundwater beneath the facility. Utility clearances will also be scheduled to occur the same day as the Records Review. Task 2—Field Program — involves field reconnaissance; hand - augured soil borings; well drilling, construction, development, purging, and sampling; and laboratory analysis. We estimate that three days of drilling will be conducted to complete up to 20 soil borings through surface materials above the bedrock, and four monitoring wells drilled to approximately 20 feet below ground surface (bgs). Borings will be located where releases are most likely to have occurred; where releases are most likely to occur in the future; where surface soils show evidence of potential impact; where actual releases have occurred based on the records review; and at points that will help delineate the extent, or lack thereof, of contamination. Soil core from each borehole will be collected using either a hand auger or a split -tube sampler for the drilled borings. Continuous core from each borehole will be logged and screened for elevated organic vapors. At least one soil sample will be collected for laboratory analysis from each boring. The one -foot interval exhibiting the highest field evidence (visual, olfactory, or organic vapor meter readings) of potential contamination from each boring will be laboratory analyzed. if evidence of potential contamination is not observed, the laboratory- analyzed sample will be collected from a depth judged to be most likely to be impacted if the nearest potential source exhibited a release. If evidence of contamination "Providing Cost - Effective Solutions to Clients Nationwide" John O'Neal Page 2 02/17/03 is observed, additional intervals will be sampled as necessary to provide information regarding the vertical extent of contamination. If water is encountered in a boring, a groundwater sample will be collected and laboratory- analyzed using the same analytical methods used for the soil samples (described below). Four (4) 2 -inch diameter monitoring wells will be installed into the bedrock to a depth of approximately 20 feet below ground surface (bgs). Three of the monitoring wells will be located downgradient of the tank farm to the east and south of the AVGAS tanks. The fourth well will be installed upgradient of the tank farm to assess the potential for offsite contamination migrating on to (beneath) the site. These wells will be finished with flush surface mount traffic covers. After installation, the wells will be formally developed and purged following state of Colorado Department of Oil and Public Safety protocol. Groundwater samples will be collected from the wells after purging, and the samples will be laboratory - analyzed as described below. Up to twenty (20) soil samples will be laboratory- analyzed for BTEX and TVPH (GRO) using EPA Method 8021M and TEPH (DRO) using EPA Method 8015M. Up to six of the soil samples will also be analyzed using Method 8260B to confirm the results obtained by Method 8021 M (Method 8260 is more accurate and precise, but also more expensive). Up to five groundwater samples will be analyzed for VOCs using Method 8260B. A maximum of five (5) soil samples and three (3) water samples will also be analyzed for total lead using EPA Method 6010 /6020. One trip blank (water) will accompany the sample cooler and will be analyzed using EPA method 8260B. Analyses for PAHs are not anticipated or included in this proposal; however, if total petroleum hydrocarbons are encountered at concentrations above 500 mg/kg in soils, and BTEX constituents are not present above state risk -based screening levels (RBSLs), then analysis for PAHs would be required. Investigative - derived wastes will be containerized, transported, and disposed in compliance with applicable regulations. Maxim will document disposal procedures and provide copies of the waste manifests to Pueblo Memorial Airport. Task 3— Reporting — involves integrating the records review, field investigation, and laboratory analyses of soil and groundwater samples to identify the nature and extent of contamination identified by the soil borings. The report will detail the current conditions of subsurface soils and groundwater beneath, and in the immediate vicinity of, the aviation fuels storage facility. Task 4— Project Management — involves coordinating all project activities including scheduling utility clearances; scheduling and contracting with a drilling subcontractor, scheduling and tracking laboratory analyses; preparing a health and safety plan; procuring rental and expendable equipment; scheduling with the Site owner, and managing investigative - derived waste. The site visit and meeting with City of Pueblo officials conducted by Brian Myller and James Paulson on September 18, 2002 is also included. Cost Estimate The following breakdown presents the estimated costs by task, including labor and ODCs, to complete the above detailed scope of work: Task I— Records Review Task 2 —Field Program Task 3— Reporting Task 4— Project Management $ 1,063.00 14,191.00 4,125.00 6,882.00 Total Estimated Costs $ 26,261.00 Maxim proposes to perform the foregoing scope of work under on a firm price basis. The total cost will be invoiced at the completion of the work and payment will be due within 30 days of receipt of invoice. John O'Neal Page 3 Schedule and Availability Maxim is available to begin this project immediately upon contract award. Maxim proposes to complete this project not later than 60 days from the date of contract award and expects that a draft report for PMA's review and comments could be completed within 45 days of contract award. Conditions and Limitations Pueblo Memorial Airport has provided a copy of available facility drawings to Maxim for Maxim's review and preparation of this cost proposal. This proposal is based on a one -day site visit to review existing records, one day of conducting hand borings, and three days of on -site drilling and monitoring well installation to complete the Field Program detailed in Task 2. Maxim will perform this work in accordance with the terms and conditions contained in the Agreement For Professional Consulting Services (Agreement), which references this proposal as Exhibit A. We appreciate this opportunity to support Pueblo Memorial Airport with your environmental requirements. Please call me at (303) 279 -7885 if you have any questions or comments regarding this proposal. Sincerely, MAXIM TECHNOLOGIES INC.® Brian Myller Denver Office Manager Rev: KL/JP CLIENT: Citv f P ebl Accepted By: Bill Sova Title: President of City Council Date: April 14. 2003 COST BASIS SPREADSHEET Pueblo Memorial Airport, 31201 Boman Circle_ Pueblo, Colorad _ Aviation Fuels Storage F acility - Ba Environmental Assessme _ Date February 17 2003 Proposal #: P25009752 - - - Task 1 Task 2 Task 3 Task 4 - _ - - _ - LABOR _ - -- __- Protect Manager Senior Engmeer /Suenbst Staff eologistSCren- - - -__- - Travel l Time ime -_ - -_ _ _ _ - CADOparator /Draflsparson Proj Coordinator Records - -_ Rev -- Fle ltl ln - _- ReportiryL Pmiect Management Category Total I I 1 Rate QTY. ! Amount p TY. Amount QT Y. Amount pTY. -- _- Amount -_ pTY. __ 31 32 - - Amount 4 1 5 3,720 $12000 $9500 _. $6500 _ _ _$65.00 $5000 $48 00 t 2 _ 8 3 0 0 _ 1 $120 $190 2 4 8240 $380 4 101 5480 $950 24 16 $2,880 $1,520 53,040 _ $520 $195 $0 $0 _ _ -- _- 26 - _ 3 0 01 $90 5795 $1 $0 $0 _ _ 321 0 _ 12 0 $_2, SO 8600 $0 t8 - _ 0 0 6 Et_ 8� $ $0 $O $288 _ - $390 121 6 $000 5288 -- - - -- - Labor Total ODCs TnvellShiPPin9 Sh�in package Parking/meeting Field Vehicle/ Day _ _ -_- _Y _._ _.. Per Diem Lod Lodging _ - _. 9 9 _ vehicle Mdea a /mile 515.00 141 $1,025 01 b0 35 $2,505 581 $4,110 62 - 85,728 159 4 $13,368 $60 - 2 S30 1 $15_ 1 $15 _ $1500 _ _ o! $O 0 $0 01 $O 0 $O 0 $0 80 $38.00 565 00 .... EO_ 1�' $38 0 $0 0 3 4 80 01 0! 0 $0 0 0 0 $0 _ $0 EO 0 4 4 S1t4 — $260 80 $752 $260 td ___ $0.400 _'I _ 0 $0 - 333 $133 _ _ $0 300 $120 633 $253 Travel Total Equipment Rental PID RentaUday, Day Lighting /hole _ Daybghting mobe /day _ Water Level Melef /tleY _ _ YSI 556/ Honba U22 Downhole Meter Mobile Phane /day -_ Decontamination/day Field Supplies _ _ Maxim Fes,010% $48 W $22000 _ $17500 $10.00 $140.00 $2500 $7000 $5000 10% $38 0 $0 _ D _ EO 0, - E0 _ 0 $0 0 80 0� $0 $537 - $1 5 $135 $725 4 0 $192 0 $0 D $0 4 1 $192 SO 0 EO 0 SO _ _ 0 _ $D 0 2 1 4 _ _ $0 $20 8140 $100 0 0 0 0 _ $0 EO EO $0 OL O OF 01 $0 i EO 80 $0 0 $0 2 $20 1 4 $140 $100 0 _ _ $0 0 $0 $0 3 3 $210 _ $150 881 0 $0 _ 0 _ $0 80 80 3 3 $210 _ 01 $0 80 01 $150 0 $81 Equipment Total Dnlbng Auger Dnllmg/hr. _ -. -_ _ _ Monitoring Well (2'dia)/fl _ Concrete /Asphafl conngbole Driller Mobilization/Demobilization Steam Cleaner /day Support Tmck/day Mexico Fee 10% - - - -- - -- _... _ $125 00 $7500 $5000 855000 _ -$ $75.00 1 0 0 $0 0 $0 0. EO 0 $O 0 $0 0' $0 $893 $O j$0 $893 24�' _ $3 80 $1200 61 s300 1 _8550 2 1 $150 $200 0 $0 0 01 0 0 01 0 $0 $0 $0 80 EO ( $0 24 80 6 1 2 2 53,000 0 O O O 0 $0 __$0 $0 EO $0 _ $1,200 $300 8550 $150 $200 10% - - - - - -Ep $540 ! s0 $0 0 $540 Drilling Total Laboratory T est Ame nea VOCs(8260Lnaty BTEX/TVPHs (8021 8015) - analysis /sample TEPH(8015)- an alysis s ample_ s0 - - $5,940 $O _ - -_ EO -- 55,940 $11000 85000 $4000 _ $12.00 $13000 10% _ _ 01 SO 0 $0 o $0 0 $0 0 $0 80 12 26 251 8' $1320 0 $0 0 EO s0 EO so 12+ 26 25 8 81,320 $1,300 $1,000 $96 0 $0 0 $ 1,300 $1,000 $98 0 0 $0 $0 01 o Total Lead RIOTCLP Waste Characterization _ Maxim Fe 10% it $130 0 s0 01 - _ s0 EO 1 0 $130 $385 $0 $385 Laborat0ry_Total S _ -_ _ - -- urvey level and Rod i __ -.- EO - 54,231 i EO $0 0 $4,231 $30.00 0 $0 1 $30 0 1 $0 SO 1 830 Surveying Tot Well Permitin 8 Waste Disposal Permit (Intent) Fee /Well CPS Field Un MAkrun Waste Disposal Flat Fee/ Drum (1 -4 drums) _- _- Mdkrun Wa Di s -osal / Drum > 4 drums Waste Disposal / Drum LiR Truck / ho-Ur __— ..._.. __.. _. FIUM DisposaVgal Maxim F"010% ! 0� $0 $0 01 $30 80 0 $0 L $0 $0 4 0 SO $240 4, $30 8240 560.00 550.00 $140.00 595.00 $9500 $70 — W 80.65 10% O._ - $0 0 - $0 0 80 OI $0 1 $50 0 $0 t $50 0 0 0 $O 0 s0 1 $140 _ 1 _ _$140 EO 0 $0 01 $0 0 $0 __ _ ___ $0 _ 0! _i. 01 EO $O _ 5'I 01 $475 $0 _ 5 0 5475 EO 0' $0 _ Oi $0 � EO 0 $O _ 0 $0 0 $0 110 $72 _ 110 _ E72 $S $0 $93 $98 Permitting & Waste Disposal Total OOC Subtotal ''I $0 $38 $55 - EO _ $1,019 $1,750 - - - $1,074 $11,886 515 $12,893 ODCTotal 538 $11,686 - $15 $1,154 $12,893 Task Total 51083 $14191 $4,125 $6882 828.281 Total Cost 1 $26.261 BaselvieASSessmerNa- P25009152.xls 1 Of 1 MAMM TECHNOLOGIES INC© AGREEMENT FOR PROFESSIONAL CONSULTING SERVICES THIS AGREEMENT is entered into between MAXIM TECHNOLOGIES, INC® (Consultant) and City of Pueblo (Client), this 14th day of April 2003 . TERMS AND CONDITIONS Scope of Work/Fee Consultant shall perform the services defined in the proposal dated 02/17/03 (attached hereto as Exhibit A), as agreed upon between Client and Consultant. The estimated cost to the Client shall be a firm figure. Consultant will provide additional services under this Agreement, as requested by the Client and invoice the Client for those additional services at Consultants standard rates or contract rates in effect at the time the services are provided. Only with the written consentof the Client may changes and additions to, and /or omissions from the scope of work be authorized under this Agreement. Any such changes shall be agreed upon between both parties before Consultant will proceed with such changes. 2. Commencement Consultant shall commence the services upon Client's verbal notification to proceed, but in any event, on or before ten (10) days after execution of this Agreement by Client. If this Agreement is to provide continuing services, Consultant shall commence the Services as set forth in each proposal, work order or other request for service. Such proposal, work order or request for service is incorporated herein by reference and shall be subject to the terms and conditions contained herein. 3. Payment Terms Client will pay Consultant for Services and expenses in accordance with Consultant's rate sheet or contract rates in effect at the time the Services are provided, the agreed project fee. Consultant's invoices will be presented at the completion of its work, ormonthly, as specified in the quotation, and will be paid within thirty (30) days of receipt by Client or Clients authorized representative. 4. Amendments Client, without invalidating this Agreement, may request changes within the general scope of the Services required by this Agreement by altering or adding to the Services to be performed, and any such changes in the Services shall be performed subject to this Agreement. Upon receiving Client's request, Consultant shall return to Client a change proposal setting forth an adjustment to the Services and Project H:\MARKETING\PROPOSAL 2002\PUEBLOMEMORIALAIRPOR I\RNAL MAXIM AGREEMENT.DOC Page 1 of 1 Cost estimated by Consultant to represent the value of the requested changes. Following Client's review of Consultant's change proposal, Client shall execute a written change order or contract anendment directing Consultant to perform the changes in the Services. 5. Relationship of Parties Consultant and its employees, agents, affiliates and subcontractors shall act solely as independent contractors in performing Services under this Agreement. Except as specifically provided in this Agreement, Consultant shall have no right or authority to act for Client and will not enter into any contract or other agreement, or incur any debt, liability or obligation of any nature in the name of, or on behalfof, Client. Consultant, its employees, agents, affiliates and subcontractors shall not be considered agents or employees of Client. Reliance upon the Services provided under this Agreement is limited to Client and any third party reliance that may be available is contingent upon written agreement executed by Consultant and upon the full execution by the third party of a letter of understanding provided by Consultant. Client acknowledges that the Services provided under this Agreement shall in no way beconstrued, designed or intended to be relied upon as legal advice or interpretation. b. Confidentiality and Ownership of Documents All data developed pursuant to the performance of Services under this Agreement, or supplied to or obtained by Consultantfrom Client or any of their subcontractors or agents, will be treated as confidential, and will only be released to those individuals identified by Client as appropriate recipients of such information. Concepts, systems, reports, methodology and ideas deeloped by Consultant during performance of the Services authorized under this Agreement, and all other proprietary or trade secret information of Consultant, shall remain the property of Consultant. Confidential information shall not be disclosed to any third party without the prior written consent of Client or Consultant as the case may be. Upon completion of Services or other termination under this Agreement, any confidential information provided by Client and retained by Consultant shall be returned toClient upon Clients request The mutual obligations set forth in this paragraph shall survive until either Consultant or Client, as appropriate, waives such confidentiality, or until such confidential information becomes available to the general publicwithout the fault of either party to this Agreement. Unless otherwise required by law, Consultant shall not have the responsibility or authority to notify any governmental agency of matters pertaining to the project or project site conditions, unless Client requests and authorizes Consultant to provide such notification solely on Client's behalf, and Client shall be solely responsible for the subject matter and content of such notification. Nothing herein is meant to prevent nor shall be interpreted as preventing either party from disclosing and /or using said information or data (i) when the information or data are actually known to the receiving party before being obtained or derived from the transmitting party; (ii) when information or data are generally available to the public without the receiving party's fault at any time before or after it is acquired from the transmitting party; or (iii) where the information or data are obtained or acquired in good faith at any time by the receiving party from a thFd party who has the same in good faith and who is not under any obligation to the transmitting party in respect thereto; (iv) where a written release is obtained by the receiving party from the transmitting party; or (v) five (5) years from the date of reeipt of such HAMARKETINGPROPOSAL 2002\PUEBLOMEMORIALAIRPORTFINAL MAXIM AGREEMENT.DOC Page 2 of 2 information; or (vi) when required by process of law; provided, however, upon service of such process, the recipient thereof shall notify the other party and afford it an opportunity to resist such process. All documents prepared by Consultant as instruments of Services will remain the property of Client Client agrees that all reports and /or other items furnished to Client or its agents, which are not paid for, will be returned upon demand and /or will not be used by Client for any purpose whatsoever. Unless otherwise agreed, Consultants will retain all pertinent records concerning Services performed for a period of three (3) years after the report is sent; during that time, the records will be made available to Client during Consultant's normal business hours and subject to reasonable copying charges. Except as may otherwise be provided in writing, Client may use the Consultant's report in its entirety and may make copies of the entire report available to others. Client shall not make distosure to others of any portions of a report constituting less than the entire report. The report and any related documents are intended solely for purposes of this Agreement and will not be and are not intended or represented to be suitable for reuse by Client or others for extensions of the Project or for any other project or purpose. Consultant is not responsible for the interpretation by others of the information developed. The report and any related documents are not to be used for any marketing oradvertising purposes without the Consultants written consent. 7. Site Access and Contro Client grants to Consultant the right of entry to the Project Site by Consultant, its employees, agents, and subcontractors, to perform the Services. If Client does not own the Project Site, Client warrants and represents to Consultant that Client has the authority and permission of the owner and occupant of the Project Site to grant such right of entry to Consultant. If as a requirement of performing the Service$ Consultant damages or alters a Project Site owned by a third party, Consultant agrees to pay the cost of restoring the Project Site to the condition of the Project Site prior to the performance of the Services, unless such damage or alteration is causedby the sole negligent acts, negligent omissions, or willful misconduct of Client, its employees, agents, or contractors. Client acknowledges that it is now and shall remain in control of the Project Site at all times. Consultant shall have no responsibility or liability for any aspect or condition of the Project Site, now existing, or hereinafter arising or discovered unless caused by the negligent acts, negligent omissions, or willful misconduct of Consultant, its agents, employees or contractors. Exceli as set forth herein, Consultant does not, by its entry into the Project Site, or the performance of the Services, assume any responsibilities or liability with respect to the Project Site. Consultant does not undertake to report to any federal, state, or local governmental agency any conditions existing at the Project Site, which may present a potential danger to public health, safety, or the environment, but shall promptly notify Client of any such conditions foregoing. Consultant shall timely notify Qient and each appropriate federal, state, and local government agency of the existence of any condition at the Project Site which may present a potential danger to public health, safety, or the environment and of which it is actually aware if Consultants required I L\MARKETINGV'ROPOSAL 2002\PUEBLOMEMORIALAIRPORTFINAL MAXIM AGREEMENT.DOC Page 3 of 3 to so report any such condition under any applicable federal, state or local law, rule, regulation or interpretation. If at any time during the performance of the Services, Consultant reasonably believes the safety of its employees, agents, subcontractors, or any other person is in jeopardy, Consultant reserves the right to immediately suspend the performance of the Services until such condition is remedied, or if such condition cannot be remediated to the reasonable satisfaction of Consultant, Consultant may terminate this Agreement. 8. Project Information Consultant shall indicate to Client the information reasonably needed for rendering the Services described in each purchase order, proposal or scope of work. Consultant shall review existing information provided by others and shall give Client its opinion as to the risks associated with reliance on such information. Client will immediately transmit to Consultant any new information concerning the project that becomes actually available to it during the performance of this Agreement. Client agrees to render reasonable assistance as requested by Consultant so the performance of the Services under this Agreement may proceed without delay or interference. 9. Permit Assistance Consultant agrees to assist Client in obtaining all necessary governmental permits, licenses, approvals, and documents required for the performance of the Services. Consultant's obligations to perform the Services are specifically subject to the issuance of all pernits, licenses, approvals, or other documents required to enable Consultant to perform the Services. 10. Standard Practice The Services will be performed on behalf of and solely for the exclusive use of Client and for no others. The Services performed by Consultant shall be performed and conducted in a manner consistent with that level of care and skill ordinarily exercised by members of the engineering and environmental consulting professions in the same locale acting under similar circumstances and conditions. II. Insurance In addition to any other insurance, which Consultant may choose to carry, Consultant shall, at its sole expense, maintain in effect during the performance of the Services under this Agreement insurance coverages with insurers licensed to do business in the state where the Services are to be performed. To the extent received by Client, proceeds of insurance of Consultant will be applied to reduce Consultant's obligations under this Agreement, and Consultant shall pay any and all deductions or retentions under all of Consultants insurance. Consultant shall deliver to Client correct copies of certificates of insurance, if requested by Client. Consultant's insurance includes the following. H: \MARKETING\PROPOSAL 2002 \PUEBLOMEMORIALAIRPOR7\FINAI, MAXIM AGREEMENT.DOC Page 4 of 4 ❑ Commercial General Liability Insurance - $1,000,000 per occurrence and $1,000,000 annual aggregate for bodily injury or death and property damage, including loss of use thereof, written on an "occurrence" (as opposed to a "claims made ") basis. ❑ Comprehensive Automobile Liability Insurance cohering all owned, nonowned, and hired vehicles - $1,000,000 combined single limit of liability per occurrence for bodily injury or death and property damage, including loss of use thereof, written on an "occurrence" (as opposed to a "claims made ") basis. ❑ Statutory Workers Compensation Insurance and Employers Liability Insurance - $1,000,000 per accident. ❑ Umbrella Liability Insurance- $5,000,000 per occurrence and $5,000,000 aggregate liability for bodily injury or death and property damage, including loss of use thereof. ❑ Errors and Omissions Insurance, including Pollution Liability, Applicable to Services - $1,000,000 with respect to claims made against Consultant for negligent errors or omissions in the performance of the Services hereunder. 12. Indemnification Consultant shall defend, indemnify and hold harmless the Client and its officers, employees, servants, agents, successors, and assigns from and against any and all liability, claims, demands, suits, actions, third party claim, penalties, fines, debts, accounts, damages, costs, expenses, losses and attorney's fees (hereinafter referred to collectively as "Damages ") which either directly or indirectly arise out of or result from injury or death to its employees and subcontractors or damage toproperty, to the extent the injury or damage is caused by the negligent act or willful misconduct of Consultant or its employees, servants and agents in the performance of Consultant's work under this Agreement. The Client shall give prompt notice to Casultant of any such suit, claim, demand, or action relating thereto in order to provide Consultant with the earliest opportunity to defend against any actions or proceedings for Damages. Indemnification under this provision shall exclude any and all Damages that either directly or indirectly arise out of or result from acts, errors, or omissions of the Client or any of its officers, employees, servants, agents, consultants, or other representatives. Neither party shall be liable to the other party for ary special, indirect, incidental, or consequential damages, whether based on contract, tort (including negligence), strict liability or otherwise. 13. Limitations Period All legal actions by Client against Consultant shall be barred after three (3) yearshave passed from the time Client knew or should have known of its claim, and under no circumstances shall be initiated after five (5) years have passed from the date on which Consultant substantially completed its Services or from the date upon which Consultant's Services were terminated, whichever date shall earlier occur. 11 \MARKETING\PROPOSAL 2002\PUEBLOMEMORIAI .AIRPORTFINAL MAXIM AGREEMENT.DOC Page 5 of 5 14. Termination This Agreement may be terminated by either party upon seven (7) days written notice in the event of substantial failure by the other party to perform in accordance wth the terms hereof. Such termination shall not be effective if that substantial failure has been remedied before expiration of the period specified in the written notice. In the event of termination due to substantial failure of client, Consultant shalbe paid for Services performed to the termination notice date plus reasonable termination and project closeout expenses. In the event of termination or suspension for more than three (3) months (except for failure or default of Consultant), prior to comoetion of all reports contemplated by this Agreement, Consultant may complete such analyses and records as are necessary to complete its files and may also complete a report on the Services performed to the date of notice of termination or suspension. Theexpenses of termination or suspension shall include all direct and indirect costs of Consultant in completing such analyses, records, and reports, but in no event more than the firm figure less payments made by client. 15. Subcontract and Assignment Authorization Consultant shall have the right to subcontract Project Services to be provided under this Agreement to qualified providers of services selected by Consultant. The fees and costs of such subcontractor(s) shall be included in Consultant's fee as specified in this Agreement, unless Client agrees that subcontractor services are to be directly billed to Client. Consultant shall have the right to assign and delegate any portion or all of its rights and obligations under this Agreement to qualified providers of services selected by Consultant, provided that such providers of services are related to Consultant as parent, subsidiary or otherwise affiliated entities, without however, releasing or discharging Consultant from this Agreement. Such assignment and delegation shall be on the same terms and conditions as set forth in this Agreement, except that assignee's share of the fee for Services and the scope of work shall be set forth in a schedule that incorporates by reference the terms and conditionsof this Agreement, unless otherwise modified. Such schedule shall include an express assignment and delegation by Consultant, and acceptance of such assignment and delegation by the assignee. Client hereby prospectively consents to and ratifies such assignment and delegation, which shall be effected at the discretion of Consultant, without however, releasing or discharging Consultant from the Agreement. 16. Unforeseen Occurrences If, during the performance of Services under this Agreement, any unforeseen conditions or occurrences, including without limitation unforeseen hazardous substances or waste, are encountered which, in Consultant's reasonable judgment, may significantly affect the Services, the risk involved in providing the Services, or the Scope of Services, Client will agree with Consultant to modify the Scope of Services and Consultant will provide an estimate of additional charges to include provision for the previously unforeseen circumstances. Such estimate, when executed by Client and Ccnsultant will be a valid change order in accordance with the provisions of Section 4 of this Agreement. As an alternative, Consultant may terminate H \MARKETING\PROPOSAL 2002 \PUEBLOMEMORIALAIRPORTFINAL MAXIM AGREEMENT.DOC Page 6 of 6 Services under this Agreement in writing effective on the date specified by Consultant, in which event Cliet shall pay Consultant for services performed to the date of termination. 17. Force Majeure Consultant shall not be liable to Client for any loss, liability, cost, damage or expense arising out of the delay or failure to render Services under this Agreement where such delay or failure arises by reason of legislative, administrative or government prohibition, fire, weather conditions, hostilities, civil disturbances, labor or industrial disputes, acts of God or any other event beyond the reasonable contol of Consultant, in which event the time of performance shall be extended by the period or delay, or either party may terminate that portion of the Services under this Agreement not yet completed, and Consultant shall have no further liability to Client therefore. A change authorization extending the time to perform and stating an appropriate fee adjustment may be elected by mutual agreement of the parties hereto as an alternative to termination, pursuant to Paragraph I of this Agreement. 18. Notices Any notice given hereunder shall be deemed served when hand-delivered in writing to the duly appointed representative of Consultant or Client named below or sent by registered or certified mail to the address below: Consultant Representatives: Client Representative: 9 yi'a, ems �ot+� V Kt�A /� �R,�cTD2 Of✓/kY/ATID IJeV�✓re✓ � z< at I Zia [36o Mian j.4t Aepo,er i Y W. r { (- /*, (;o <�(tH� c o ro�ol 19. Attorney Fees In the event either party shall be successful in any action (a) alleging breach of this Agreement; (b)to construe or enforce the terms and conditions of this Agreement, including nonpayment of invoices; or (cXO enjoin the other party from violating any term or condifon of this Agreement, the prevailing party shall, to the maximum extent permitted by law, be entitled to recover its reasonable legal fees, costs, and expenses in bringing and maintaining any such action. Venue for any such action shall be Pueblo County,Colorado. 20. Governing Law This Agreement shall be governed by and interpreted pursuant to the laws of the state or jurisdiction where the particular Services are to be performed. H WARKETINGPROPOSAL 2002\PUEBLOMEMORIALAIRPORTFINAL MAXIM AGREEMFNTDOC Page 7 of 7 21. Special Provision [Attach if needed.] 22. Severability Any term or provision of this Agreement prohibited by the laws of the state where Services are to be performed shall be ineffective to the extent of such prohibition without invalidating the remaining terms and provisions of this Agreement. 23. Captions The captions and headings in this Agreement are for purposes of reference only, and shall in no way limit or otherwise affect any of the terms or provisions hereof. 24. Counterparts This Agreement may be executed simultaneously in several counterparts, each d which, when so executed and delivered, shall be an original, but which counterparts together shall constitute but one and the same instrument. In providing this Agreement, it shall not be necessary to produce or account for more than one such counterpart. 25. Waiver of Terms and Conditions The failure of either Consultant or Client in any one or more instances to enforce one or more of the terms or conditions of this Agreement or to exercise any right or privilege in this Agreement or the waiver of any breach of the terms or conditions of this Agreement shall not be construed as thereafter waiving any such terms, conditions, rights or privileges, and the same shall continue and remain in force and effect as if no such failure to enforce had occurred. 26. Entire Agreement The terms and conditions set forth herein constitute the entire understanding of the parties relating to the provision of Services by Consultant to Client and shall be deemed incorporated in all orders unless otherwise agreed in writing by Consultant and Client. In the event of conflict, this Agreement shall govern. Any modifications or revision of any provisions hereof or any additional provisions contained in any purchase order, acknowledgment or other form of the Client is herely expressly objected to by Consultant and shall not operate to modify the Agreement, and Consultant's acceptance of an order is expressly conditioned on and limited to assent to the provisions hereof. Client may accept these terms and conditions by execuron of this Agreement or by authorizing Consultant to begin work. This Agreement may be amended only by a written instrument signed by both parties. H:\MARKETING \PROPOSAL 2002\PUEBLOMEMORIALAIRPORTFINAL MAXIM AGRFEMENT DOC Page 8 of 8 CONSULTANT: MAXIM TECHNOLOGIES, INCP: BY: —� ITS: O��ce {�'tu.�43lGy DATE: 3 CLIENT: City of Pueblo BY: BiYl Sova ITS: President of City Council DATE: April 14, 2003 WMARKETINGTROPOSAL 2002\PUEBLOMEMORIALAIRPORTFINAL MAXIM AGREEMENT.IXX: Page 9 of 9