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Demolition, Decontamination and Decommissioning

ERM Subcontract Terms - U.S.

1. Protection During Demolition Work.

1.1 Subcontractor shall perform demolition in such manner as to eliminate hazards to persons and property; to minimize interference with use of adjacent areas, utilities and structures or interruption of use of such utilities; and to provide free passage to and from such adjacent areas of structures.

1.2 Subcontractor shall provide safeguards, including warning signs, barricades, temporary fences, warning lights, and other similar items that are required for protection of all personnel during demolition and removal operations.

1.3 Subcontractor shall maintain fences, barricades, lights, and other similar items around exposed excavations until such excavations have been completely filled.

1.4 Subcontractor shall provide enclosed dust chutes with control gates from each floor to carry debris to truck beds and govern flow of material into trucks.  Subcontractor shall take all necessary measures to protect persons and property from falling debris.

1.5 Subcontractor shall prevent the spread of flying particles and dust, through appropriate dust control measures.

1.6 No wall or part of a wall shall be permitted to fall outwardly from structures.

1.7 Subcontractor shall keep fire hydrants clear and accessible at all times.

1.8 Subcontractor shall take necessary precautions to avoid damages to existing items to remain in place, to be reused, or to remain the property of Client.

1.9 Subcontractor shall repair or replace any items damaged by its demolition work, as approved by ERM.

1.10 Subcontractor shall ensure that structural elements are not overloaded and shall be responsible for increasing structural supports or adding new supports as may be required as a result of any cutting, removal, or demolition work performed under the Subcontract.

1.11 Subcontractor shall protect existing trees and other vegetation that are indicated to remain in place so as not to cut, bruise, or smother them.

1.12 Subcontractor shall provide protection necessary to prevent damage to existing improvements that are indicated to remain in place.

2. Removal of Demolition Debris.

2.1 Debris, including brick, concrete, stone, metals and similar materials shall become property of Subcontractor and shall be disposed of by Subcontractor daily, off the Client’s property, to avoid accumulation at the demolition site.  Materials that cannot be removed daily shall be stored in areas specified by ERM.

2.2 Subcontractor shall dispose of debris in compliance with all Laws, including without limitation Environmental Laws.

3. Superintendent.

3.1 The Subcontractor shall employ a competent superintendent and necessary assistants who shall be in attendance at the Project Site during performance of the Work. The superintendent shall represent the Subcontractor, and communications given to the superintendent shall be as binding as if given to the Subcontractor.

3.2 The Subcontractor, as soon as practicable after award of the Subcontract, shall furnish in writing to ERM the name and qualifications of the proposed superintendent.  ERM may reply within fourteen (14) days to the Subcontractor in writing stating (i) whether ERM has reasonable objection to the proposed superintendent or (ii) that ERM requires additional time to review.  Failure of ERM to reply within the fourteen (14) day period shall constitute notice of no reasonable objection.

3.3 The Subcontractor shall not employ a proposed superintendent to whom ERM has made reasonable and timely objection. If ERM makes reasonable objection to the superintendent, based upon the superintendent’s apparent inability to properly supervise the Work, Subcontractor, at no additional charge or expense to ERM, shall promptly replace such superintendent as soon as reasonably practicable with a superintendent acceptable to ERM in the exercise of reasonable judgment. ERM may exercise this right on one or more occasions.  Subcontractor shall not replace the superintendent without prior written consent of ERM (which consent shall not be unreasonably withheld or delayed) until the selection of another superintendent approved by ERM in accordance with the provisions of Section 3.2.

4. Areas of Operations and Site Access.

4.1 The Subcontractor shall confine operations at the Project Site to areas permitted by applicable Laws. 

4.2 Only materials and equipment which are to be used directly in the Work shall be brought to and stored on the Project Site by the Subcontractor.  After equipment is no longer required for the Work, it shall be promptly removed from the Project Site.  Protection of construction material and equipment stored at the Project site from weather, theft, damage and all other perils is solely the responsibility of the Subcontractor.

4.3 The Subcontractor and any entity for whom the Subcontractor is responsible shall not erect any sign on the Project Site without the prior written consent of ERM.

4.4 The Subcontractor shall ensure that the Work, at all times, is performed in a manner that affords reasonable access, both vehicular and pedestrian, to the Project Site and all adjacent areas.  The Work shall be performed, to the fullest extent reasonably possible, in such a manner that public areas adjacent to the Project Site shall be free from all debris, building materials and equipment likely to cause hazardous conditions.  Without limitation of any other provision of the Subcontract, the Subcontractor shall minimize any interference with the occupancy or beneficial use of (i) any area and buildings adjacent to the Project Site, or (ii) the Work in the event of partial occupancy.

5. Payments and Completion.  Where the Subcontract is based on a stipulated sum or guaranteed maximum price, the Subcontractor shall submit to ERM, before the first invoice, a schedule of values allocating the entire amounts to be paid under the Subcontract to the various portions of the Work and prepared in such form and supported by such data to substantiate its accuracy as ERM may reasonably require. This schedule, unless objected to by ERM, shall be used as a basis for reviewing the Subcontractor’s invoices.

6. Explosives and other Hazardous Materials.  When use or storage of explosives or other hazardous materials or equipment or unusual methods are necessary for execution of the Work, the Subcontractor shall exercise utmost care and carry on such activities under supervision of properly qualified personnel.

7. Injury or Damage to Person or Property.

7.1 The Subcontractor shall promptly remedy damage and loss caused in whole or in part by the Subcontractor or anyone directly or indirectly employed by Subcontractor, or by anyone for whose acts Subcontractor may be liable and for which the Subcontractor is responsible. 

7.2 The Subcontractor shall designate a responsible member of the Subcontractor’s organization at the Project Site whose duty shall be the prevention of accidents. This person shall be the Subcontractor’s superintendent unless otherwise designated by the Subcontractor in writing to ERM.

7.3 The Subcontractor shall not permit any part of the construction or Project Site to be loaded so as to cause damage or create an unsafe condition.

7.4 If Subcontractor suffers injury or damage to person or property because of an act or omission of ERM, or of others for whose acts ERM is legally responsible, written notice of such injury or damage, whether or not insured, shall be given to ERM within a reasonable time not exceeding fifteen (15) days after discovery. The notice shall provide sufficient detail to enable ERM to investigate the matter.

7.5 The Subcontractor shall promptly report in writing to ERM all accidents arising out of or in connection with the Work which cause death, personal injury, or property damage, giving full details and statement of any witnesses.  In addition, if death, serious personal injuries, or serious property damages are caused, the accident shall be reported immediately by telephone or messenger to ERM.

8. Uncovering and Correction of Work.

8.1 If a portion of the Work is covered contrary to ERM’s request or to requirements specifically expressed in the Subcontract, it must, if requested in writing by ERM, be uncovered for ERM’s examination and be replaced at the Subcontractor’s expense without change in the time to perform the Work.

8.2 The Subcontractor shall promptly correct Work rejected by ERM or failing to conform to the requirements of the Subcontract. Costs of correcting such rejected Work, including additional testing and inspections, the cost of uncovering and replacement, and compensation for ERM’s services and expenses made necessary thereby, shall be at the Subcontractor’s expense.

8.3 The Subcontractor shall remove from the Project Site portions of the Work that are not in accordance with the requirements of the Subcontract and are neither corrected by the Subcontractor nor accepted by ERM or the Client.

8.4 The Subcontractor shall bear the cost of correcting destroyed or damaged construction, whether completed or partially completed.

8.5 The corrective remedies set forth in this Section 8 are not exclusive and shall not deprive ERM of any action, right or remedy otherwise available to it for breach of any of the provisions of the Subcontract.

8.6 If ERM and/or the Client prefers to accept Work that is not in accordance with the requirements of the Subcontract, they may do so instead of requiring its removal and correction, in which case the amount due under the Subcontract will be reduced as appropriate and equitable.  Such adjustment shall be effected whether or not Final Payment has been made.

9. Tests and Inspections.

9.1 Tests, inspections and approvals of portions of the Work shall be made as required by the Subcontract and by applicable Laws.  Unless otherwise provided, the Subcontractor shall make arrangements for such tests, inspections and approvals with an independent testing laboratory or entity acceptable to ERM and the Client, or with the appropriate public authority, and shall bear all related costs of tests, inspections and approvals. The Subcontractor shall give ERM timely notice of when and where tests and inspections are to be made so that ERM and/or the Client may be present for such procedures.

9.2 If such procedures for testing, inspection or approval reveal failure of the portions of the Work to comply with requirements established by the Subcontract, all costs made necessary by such failure including those of repeated procedures and compensation for ERM’s services and expenses shall be at the Subcontractor’s expense.

9.3 Required certificates of testing, inspection or approval shall, unless otherwise required by the Subcontract, be secured by the Subcontractor and promptly delivered to ERM.

9.4 Tests or inspections conducted pursuant to the Subcontract shall be made promptly to avoid unreasonable delay in the Work.

10. Disputes.

10.1 A “Dispute” is a demand or assertion by one of the parties seeking, as a matter of right, payment of money, or other relief with respect to the terms of the Subcontract. The term “Dispute” also includes other disputes and matters in question between ERM and Subcontractor arising out of or relating to the Subcontract. The responsibility to substantiate a Dispute shall rest with the party making the Dispute.

10.2 Within fourteen (14) days of the first occurrence of an event that the Subcontractor has any reason to believe might result in a Dispute, or within fourteen (14) days of the Subcontractor’s discovery of the first occurrence of an event that the Subcontractor has any reason to believe might result in a Dispute if the first occurrence of the event was willfully hidden from the Subcontractor, the Subcontractor shall file a written document clearly captioned “Notice of Dispute” with ERM (the “Notice”).  The Notice shall clearly set out the specific matter of Dispute, and the impact or damages which may occur or have occurred as a result thereof, to the extent the impact or damages can be assessed at the time of the Notice.  If the impact or damages cannot be assessed as of the date of the Notice, the Notice shall be amended at the earliest date this is reasonably possible.

10.3 Any Dispute or portion of a Dispute that has not been made the specific subject of a Notice strictly in accordance with the requirements of this Section 10 shall be waived and released.  It is imperative that ERM has timely, specific notice of any subject, the impact of which ERM may be in a position to mitigate.

10.4 No course of conduct or dealing between the parties, nor implied acceptance of alterations or additions to the Work or changes to the schedule, shall be the basis for any Dispute for an increase in the amount due under the Subcontract or change in the time to perform the Work.

10.5 Pending final resolution of a Dispute, the Subcontractor shall proceed diligently with performance of the Subcontract and ERM shall continue to make payments in accordance with the Subcontract. 

10.6 If adverse weather conditions are the basis for a Dispute for additional time, such Dispute shall be documented by data substantiating that weather conditions were abnormal for the period of time, could not have been reasonably anticipated and had an adverse effect on the scheduled construction.

10.7 The acceptance of Final Payment shall constitute a waiver of Disputes by the Subcontractor.

11. Demolition Schedule.  Prior to commencing the Work, Subcontractor shall provide to ERM information in advance as to its plans for performing each part of the Work.  Further, upon receipt of written notice from ERM, Subcontractor shall submit to ERM for approval a detailed demolition schedule based on a critical path analysis of demolition activities and sequence of operations needed for the orderly performance and completion of any separable parts of the Work.  ERM may rely on such schedule in establishing ERM’s schedule.  Thereafter and on a monthly basis, Subcontractor shall provide ERM with an updated schedule and a narrative explaining any changes in Subcontractor’s progress and the reason for said changes. 

12. Decontamination and Decommissioning.

12.1 To the extent the Prime Contract requires decontamination or decommissioning (hereinafter decontamination and decommission shall be referred to as “Decontamination”), Subcontractor shall be solely responsible for all such Decontamination in accordance with all Laws and the Decontamination Plan approved by ERM. 

12.2 All Decontamination shall be performed by a Cleaning Contractor and an Assessment Contractor. 

12.2.1 The Cleaning Contractor shall mean the contractor that will provide the necessary labor, supervision, tools, equipment and material to clean the debris, walls, floors, floor drains, ceilings, equipment, fixtures and other horizontal surfaces and dust, included lead-contaminated dust, from the facility. 

12.2.2 Assessment Contractor shall mean a third-party contractor (not affiliated with the Cleaning Contractor) who will determine if the cleaning meets the specified clearance criteria established for the project in the Decontamination Plan and as required by Law.   

12.2.3 Clearance Criteria shall mean the criteria established in the Decontamination Plan and as required by Law to determine if the cleaning of the facility was successful in sufficiently decontaminating the facility. 

12.3 Cleaning Contractor.

12.3.1 The Cleaning Contractor will prepare all necessary Plans and Documents to conduct the decontamination including but not limited to the (i) Health & Safety Plan (OSHA 29 CFR 1926.65); Hazard Communication Program (ii) OSHA 29 CFR 1910.1200; and (iii) Lead Exposure Management Plan (OSHA 29 CFR 1926.62).

12.3.2 The Cleaning Contractor will be responsible for the following activities:

(i) Mobilizing all necessary labor, supervisory personnel, equipment, tools and material to conduct the Decontamination project.

(ii) Providing appropriate Personal Protective Equipment (“PPE”) for all work and ensuring that the PPE is used as described in the Health and Safety Plan. 

(iii) Installing work area barricades and warning signs, providing containment to separate areas within the facility, sealing and locking doors, and limiting access to the facility to necessary personnel. 

(iv) Setting up equipment and watering material staging areas, and utilizing plastic sheeting or other appropriate containment/enclosures to prevent cross-contamination.

(v) Disconnecting all utilities to the immediate work area, as necessary. 

(vi) Setting up required hygiene and decontamination facilities including a hand washing station, change room, and portable shower provided with hot and cold water (as required by OSHA regulations).

(vii) Conducting site-specific training for all personnel. 

(viii) Performing surface decontamination on an area-by-area basis, in an orderly manner, either “top down” or “bottom up” as specified in the Decontamination Plan. 

(ix) Conducting final cleanup and demobilization after sampling results meet Clearance Standards and completing final documentation. 

12.3.3 Equipment used during cleaning will be cleaned and decontaminated before leaving the facility. 

12.3.4 Waste materials from cleaning, as well as disposable PPE, will be containerized and shipped off site for disposal at Subcontractor’s sole expense in accordance with all Laws.

12.4 Assessment Contractor. 

12.4.1 The Assessment Contractor will provide a trained technician to conduct visual inspections and wipe sampling.  Wipe samples will be obtained in accordance with standard, industry-accepted sampling methodology and as specified in the Decontamination Plan. 

12.4.2 Sampling in all areas will be performed when surfaces are completely dry, and no sooner than one hour after the cleaning in that area has been completed. 

12.4.3 The Assessment Contractor will perform visual inspections to verify that the work areas have been cleaned satisfactorily. 

12.4.4 Wipe samples will generally be obtained as follows:  Single surface wipe samples shall be collected from walls, ceilings, floors, equipment, fixtures and other horizontal surfaces. 

12.4.5 All samples will be analyzed by an accredited laboratory using the sampling and analysis methods specified in the Decontamination Plan. 

13. Insurance.  Subcontractor confirms that no exclusions exist within its required insurance that would preclude coverage for Work intended under the Subcontract.

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ERM Legal Department
March 8, 2010

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