1. Site Preparation. Subcontractor shall be solely responsible for performing all site preparation activities to allow for the accessibility of any drill rigs, including truck mounted drill rigs, excavation equipment or equipment necessary for geotechnical evaluation.
2. On-Site Water Supply. Subcontractor shall be solely responsible for ensuring an available supply of on-site water necessary to complete its drilling, excavation or geotechnical operations.
3. Staging Areas. Subcontractor shall be solely responsible for securing all necessary staging areas for its equipment and supplies used to perform all drilling, geotechnical or excavation activities.
4. Erosion and Sedimentation. Subcontractor shall be solely responsible for installing and maintaining erosion and sedimentation controls related to drilling, geotechnical or excavation work in compliance with all Laws, including without limitation Environmental Laws.
5. Contamination or Segregation of Cuttings, Drilling Fluids, Water or Excavated Soils.
5.1 Subcontractor must contain contaminated drill cuttings, drilling fluids and all water that comes into contact with or is extracted or purged from the subsurface formation. Subcontractor shall be solely responsible for providing drums or other containers for the drill cuttings and for providing drums, tanks or large vessels for containment of drilling fluids or water that comes into contact with or is extracted or purged from the subsurface formation.
5.2 Soils, rock and other materials that Subcontractor excavates pursuant to the Work Authorization must be segregated at the Project Site in a location approved by Client or ERM. Except as otherwise provided in the Work Authorization, Subcontractor, at its sole cost and expense, shall perform the necessary due diligence and sampling of the excavated materials to determine whether the excavated materials, or any portion thereof, must be disposed of off-site in accordance with applicable Environmental Laws. Any excavated material requiring off-site disposal shall be treated as Waste pursuant to Section 10 below. Any excavated material not requiring off-site disposal will be handled by Subcontractor, at its sole cost and expense, in accordance with the Work Authorization. Unless otherwise provided in the Work Authorization, Subcontractor, at its sole cost and expense, shall backfill the excavation with material approved by ERM and return the excavated area to the same or substantially similar condition as existed prior to the excavation.
6. Certification and Training. All drilling personnel must have completed OSHA 1910.120 training. Subcontractor must be a certified driller in the state/locality where the Subcontract is to be performed. Subcontractor shall be responsible for securing all necessary state and county drilling permits.
7. Abandonment of Wells.
7.1 If Subcontractor fails to complete a monitoring well as specified, or abandons a monitoring well because of loss or failure of tools or equipment, or other causes not related to unexpected natural causes or differing site conditions (as discussed below), Subcontractor, if requested by ERM, shall fill the abandoned well with a cement bentonite slurry according to applicable agency specifications and salvage and remove such casing as can be salvaged. All salvaged casing or materials furnished by Subcontractor will remain Subcontractor’s property. The cost of abandonment of the monitoring well, including the filling, shall be borne solely by Subcontractor and no allowance or payment shall be made for the drilling, casing or other work performed by Subcontractor on the abandoned monitoring well.
7.2 If a monitoring well must be abandoned due to a natural cause, deemed to be a geologic formation comprised of a type of material that could not have been anticipated, such as heaving sands or large boulders, and could not be drilled using Subcontractor's existing equipment, or subsurface or latent conditions at the Project Site differing materially from the conditions indicated in this Subcontract and the Prime Contract or the existence of a previously unknown condition at the Project Site of an unusual nature, differing materially from those ordinarily encountered and generally recognized as inherent in work of the nature provided for in the Work Authorization (hereinafter referred to as "differing site condition"), and neither ERM nor Subcontractor were aware of such conditions, Subcontractor shall, in writing and within 5 days from when the well is abandoned by Subcontractor, notify ERM of the existence of the natural cause and/or differing site condition and shall specify the costs incurred by Subcontractor as a result thereof.
7.3 ERM shall, within ten (10) days of receiving such written notice from Subcontractor, notify Client of the natural cause and or the differing site condition and the costs incurred by Subcontractor and ERM, if any, as a result thereof, and shall request compensation from Client for such costs. If Client determines that there is entitlement to some or all of the requested costs, ERM’s reasonable determination as to Subcontractor’s share of any equitable adjustment issued by Client shall be final, binding and conclusive on Subcontractor. If Client determines that there is no entitlement to additional costs, Client’s decision shall be final, binding and conclusive on Subcontractor. Subcontractor’s failure to comply with the notice requirements herein shall constitute a waiver of its right to submit a claim for additional costs hereunder.
8. Decontamination of Equipment. At Subcontractor’s sole cost and expense, all drilling, geotechnical or excavation equipment must be thoroughly steam cleaned by Subcontractor before entering the Project Site, after completing each boring, well, excavation or trenches and at other appropriate times specified by ERM field personnel. All down-hole equipment must be thoroughly decontaminated prior to arrival on site. In addition, due to the potential presence of chemical contaminants in boreholes, excavations, trenches and/or wells to be evaluated by Subcontractor, all equipment, including without limitation down-hole equipment must be thoroughly decontaminated by Subcontractor between boreholes, excavations, trenches and wells, and Subcontractor will provide suitable cleaning mechanisms to decontaminate its equipment. All such equipment must be thoroughly decontaminated by Subcontractor prior to leaving the Project Site. In lieu of decontamination activities, ERM reserves the right to replace, at ERM’s cost, the contaminated equipment component(s).
9. Lost or Lodged Equipment. Under no circumstances will ERM be responsible for any additional cost resulting from the loss of equipment nor will it be expected to compensate Subcontractor for the loss of any equipment.
10. Transportation and Disposal of Waste.
10.1 Subcontractor is responsible, at its sole cost and expense, for transporting, treating and/or disposing of all of the drill cuttings, drilling fluids and water that comes in contact with or is extracted or purged from the subsurface formation, and excavated soil, rock and other material requiring off-site disposal pursuant to Section 5.2 above (the “Waste”) in accordance with all Laws, including with limitation Environmental Laws.
10.2 Subcontractor represents and warrants that it will accept legal title and sole responsibility for the Waste upon its generation by the Subcontractor. Any spills or uncontrolled releases of the Waste during transportation shall be the sole responsibility of Subcontractor, and all consequences including any costs of any required cleanup will be borne solely by Subcontractor.
10.3 Subcontractor shall be responsible, at its sole cost and expense, for determining the characteristics and nature of any and all Wastes, including performing any necessary due diligence or appropriate waste sampling.
10.4 Subcontractor shall be responsible, at its sole cost and expense, for completing any waste manifests or other waste shipment records required by Laws, including without limitation Environmental Laws, identifying Subcontractor as the generator of the Waste on such manifest or shipping records and ensuring that appropriate copies are delivered to any transporter, treatment and/or disposal facility and the Client.
10.5 Subcontractor shall be solely responsible for selecting an appropriate and legally compliant facility for the Wastes. Subcontractor represents and warrants that any and all treatment or disposal facilities to which Wastes will be taken have all required permits, licenses, authorizations, consents and approvals necessary to accept such Wastes.
10.6 To the extent that the Wastes include non-hazardous wastes, Subcontractor represents and warrants that such non-hazardous waste will be taken to disposal facilities that do not accept hazardous substances, as that term is defined by the Comprehensive Environmental Response, Compensation and Liability Act, 42 U.S.C. § 9601, et seq. (“CERCLA”), other than such hazardous substances as are ordinarily found in municipal waste.
10.7 To the extent Subcontractor does not own the selected treatment or disposal facilities, Subcontractor shall procure and maintain non-owned treatment/disposal site insurance coverage in an amount of not less than $3,000,000 per occurrence for all treatment/disposal sites to which Wastes will be sent. Such insurance should be specifically endorsed to include ERM and Client as additional insureds.
10.8 Subcontractor agrees to indemnify and hold harmless the Indemnified Parties from and against any and all Claims arising out of, resulting from or associated with the Wastes removed from the Client’s place of business or ERM’s Project Site and treated or disposed off-site, including without limitation the collecting, transporting, treatment, disposal or other handling of such Wastes, under any Law whatsoever, including specifically the Comprehensive Environmental Response, Compensation and Liability Act, 42 U.S.C. §9601, et. seq., and analogues state statutes, irrespective of whether or not the Subcontractor is negligent with respect to such Wastes or has handled such Wastes in conformance with applicable law. This indemnification shall commence upon the generation of any such Wastes at the Project Site. This indemnification shall survive the expiration or any earlier termination of the Subcontract..
11. Subsurface Conditions. Unless otherwise provided in the Work Authorization, Subcontractor shall be solely responsible for all costs associated with subsurface conditions, including without limitation rock excavation, sands and dewatering.
12. Insurance. Subcontractor confirms that no special exclusions exist within its required insurance that would preclude coverage for Work intended under the Subcontract.
ERM Legal Department
March 8, 2010