AGENDA REQUEST. Approve Settlement Agreement for illicit discharge into east/ west ditch. AGENDA OF: 10/ 18/ 16 AGENDAXI- RESPONSIBLE INITIATED BY:

Transcription

1 AGENDA OF: 10/ 18/ 16 AGENDAXI- NO: A SU CITY COUNCIL S AGENDA REQUEST INITIATED BY: MEREDITH RIEDE CITY ATTORNEY RESPONSIBLE DEPARTMENT CITY ATTORNEY ENVIRONMENTAL& NEIGHBORHOOD SERVICES MEREDITH RIEDE DAWN STEPH, PRESENTED BY: DAWN STEPH DIRECTOR: DIRECTOR OF ENVIRONMENTAL NEIGHBORHOOD SERVICES ADDITIONAL APPROVAL: NA SUBJECT/ PROCEEDING: APPROVAL OF SETTLEMENT AGREEMENT EXHIBITS: I Wll LEGAL: ' MEREDITH RIEDE, EXECUTIVE CITY ATTORNEY DIRECTOR: PURCHASING: NA ASSISTANT CITY MANAGER MIKE GOODRUM BUDGET: NA ASSISTANT CITY MANAGER: CITY MANAGER: ALLEN BOGARD I ' lli, m III EXPENDITURE REQUIRED: $ NA CURRENT BUDGET: $ NA ADDITIONAL FUNDING: $ NA Approve Settlement Agreement for llct dscharge nto east/ west dtch. 77

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3 ENVIRONMENTAL REMEDIATION AGREEMENT THIS ENVIRONMENTAL REMEDIATION AGREEMENT ( ths " Remedaton Agreement") s effectve as of Aprl 1, 2015 ( the " Effectve Date") by and between THERMO FISHER SCIENTIFIC INC., a Delaware Corporaton (" Thermo Fsher"); and THE CITY OF SUGAR LAND, TEXAS, a home- rule cty duly ncorporated under the laws of the State of Texas ( the " Cty") ( sngularly a " Party" and collectvely the " Partes"). RECITALS: A. WHEREAS, Thermo Fsher' s ndrect subsdary operates a faclty located at 1410 Gllngham Lane, Sugar Land, Texas ( the " Faclty"); B. WHEREAS, the Faclty dscharges storm water to the Cty' s storm water dranage system ( the " Dranage System"); C. WHEREAS, Thermo Fsher and the Cty acknowledge that certan materal was released from the Faclty ( the " Release") nto the Dranage System and onto or nto certan other propertes, ncludng property now owned by Thermo Fsher' s ndrect subsdary collectvely the " Affected Propertes"), resultng n the presence of contamnants, ncludng those dentfed on Attachment A (the " Contamnaton"). D. WHEREAS, Thermo Fsher desres to ( ) nvestgate and remedate the Contamnaton on the Affected Propertes ( the " Work," as more specfcally defned n Attachment B or as set out n such other work plans reasonably approved by the Cty) and ( ) perform the Restoraton ( as defned below), all n accordance wth applcable Cty requrements and federal and state laws and regulatons. E. WHEREAS, Thermo Fsher needs access to the Dranage System and assocated rghts-of- way owned by the Cty ( together, the " Cty Property") Restoraton ( as defned below) on the Dranage System. to perform the Work and the F. WHEREAS, the Cty wants to cooperate wth Thermo Fsher by provdng lmted and non-exclusve access to the Cty Property, wthout wavng any rghts, clams or causes of acton t may have and whch arse out of the Contamnaton, except as explctly descrbed n ths Remedaton Agreement. G. WHEREAS, the Cty desres to be protected from any and all losses, damages, costs, fnes, penaltes, labltes, judgments, lens, suts, enforcement actons, clams, causes of acton, demands, njures ( ncludng, wthout lmtaton, bodly njury and death to persons), or actual damage to the envronment or property brought aganst the Cty by thrd partes that may arse from, or be attrbutable to, the Release, the Contamnaton, the Work, the Wastes, and/ or the Restoraton ( as defned below) ( collectvely " Clams") and seeks defense and ndemnfcaton from Thermo Fsher from such Clams. H. WHEREAS, Thermo Fsher desres to complete the Work and the Restoraton ( as defned below) and s wllng to provde the defense and ndemnfcaton sought by the Cty.

4 I. WHEREAS, the Cty may have clams and causes of acton aganst Thermo Fsher arsng out of the Release or the Contamnaton, ncludng any and all statutory clams and/ or clams arsng out of any Cty ordnance. J. WHEREAS, Thermo Fsher has agreed to enter nto ths Remedaton Agreement and toll any applcable lmtatons perod or tmelness defenses as set forth below. K. WHEREAS, n relance upon such tollng agreement, the Cty s deferrng the flng of sut on any clams or causes of acton the Cty may have; and L. WHEREAS, Thermo Fsher and the Cty desre to enter nto ths Remedaton Agreement to clarfy ther respectve rghts and oblgatons wth respect to the Release, the Contamnaton, the Work, and the Restoraton ( as defned below). NOW, THEREFORE, for good and valuable consderaton, the recept and suffcency of whch are hereby acknowledged, the Partes agree as follows: 1. Tollng Provson. Any and all statutes of lmtaton or laches that may be applcable to causes of acton aganst Thermo Fsher, ts subsdary, predecessor, and/ or successor companes that have accrued or wll accrue to the Cty and whch relate to, or arse out of, the Release, the Contamnaton, and/ or the Work, are tolled for the perod commencng on Aprl 1, 2015 and contnung untl the later of completon of the Work and the Restoraton, or the Termnaton Date ( as defned below), unless otherwse termnated n wrtng by ether Party. No termnaton pursuant to ths Secton 1 shall affect ether Party' s rghts and oblgatons elsewhere n ths Remedaton Agreement. The Partes agree that laches or any other defense based on delay on the ground that sut was not fled and servce of process made durng the foregong tollng perod shall not be asserted. Nothng n ths Remedaton Agreement s ntended to revve any cause of acton whch a statute of lmtatons or laches, f asserted, would or wll bar f sut had been fled n a court of competent jursdcton pror to Aprl 1, Reservaton and Preservaton of Rghts and Oblgatons. The Cty reserves ts rghts to brng sut or to make clams aganst Thermo Fsher, ts subsdary, predecessor, and/ or successor companes f n ts best nterest t needs to do so to protect ts nterests, and nothng n ths Remedaton Agreement shall be construed ( ) to prevent the Cty from takng such actons or ( ) as any sort of release of clams by the Cty. If the Cty ntates a sut aganst Thermo Fsher, ts subsdary, predecessor, and/or successor companes, concernng or relatng to the Release, the Contamnaton, the Work, or the Restoraton ( as defned below), the tollng provsons of ths Remedaton Agreement shall termnate at that tme by and between the Partes but such termnaton shall not affect ether Party' s rghts and oblgatons elsewhere n ths Remedaton Agreement. Nothng n ths Remedaton Agreement s ntended to modfy any rghts or oblgatons of the Partes n connecton wth any easement, rght- of-way or other pror agreements between the Partes or ther predecessors n nterest. 2

5 3. Work and Restoraton. a) Thermo Fsher shall, at ts sole cost and expense, take all reasonable actons necessary to complete the Work on the Affected Propertes as soon as practcable and wthout undue delay, and n accordance wth Attachment C ( referred to as the " Clearance Crtera") to ths Remedaton Agreement. Thermo Fsher shall promptly seek concurrence from the Texas Department of State Health Servces (" DSHS") wth Thermo Fsher' s release of such Affected Propertes for unrestrcted use ( the " Agency Notce") for each sgnfcant porton of the Work, and secure the wrtten concurrence from the Cty that such Work has been completed accordng to the Clearance Crtera. The Cty shall accept the Work as set forth below: ) Interm acceptance of the Work: The Cty wll perform any surveys or assessments of completed segments of the Cty Property wthn fve ( 5) busness days after Thermo Fsher notfes the Cty that Thermo Fsher has completed the Work on a subject secton of the Cty Property or on any porton of any of the other Affected Propertes where remedaton nvolves excavaton, and wll promptly notfy Thermo Fsher thereafter regardng whether the specfed segment meets the Clearance Crtera. Fsher' s ) Fnal acceptance of the Work: Wthn ten ( 10) days of Thermo recept of the Agency Notce( s) for each of the Affected Propertes, Thermo Fsher shall provde the Cty wth ( ) a copy of such notce( s) and ( ) wrtten confrmaton that Thermo Fsher has met the Clearance Crtera ( the " Notce of Completon"). Wthn thrty ( 30) days after Thermo Fsher provdes the Cty wth a Notce of Completon, the Cty wll provde wrtten notce to Thermo Fsher, acceptng the Notce of Completon or nform Thermo Fsher of the reasons the Cty s not acceptng such Notce of Completon. b) Thermo Fsher shall ntate reasonable actons necessary to restore each of the Affected Propertes n accordance wth the Clearance Crtera before or upon recept of concurrence from the Cty that the Work has been completed n accordance wth the Clearance Crtera or upon the Termnaton Date, whchever occurs frst. Thermo Fsher may rely upon nterm acceptance of the Work by the Cty to begn Restoraton on the Cty Property. After ntal restoraton work, Thermo Fsher shall promptly restore all Affected Propertes from any changed condtons caused by the Work to meet the requrements of Attachment C. Such restoraton actvtes shall be at Thermo Fsher' s sole cost and expense and shall nclude, at a mnmum, the fllng of all excavated areas resultng from the Work, to the extent reasonably requested by the owner of each the Affected Propertes. Any excavatons on the Affected Propertes that are flled as part of the Work shall only be flled wth fll drt that s clean and free of pollutants or contamnants. Thermo Fsher' s oblgatons n ths Secton 3( b) shall be referred to heren as the " Restoraton." c) Except as otherwse provded n ths Secton 3( c), the Work and the Restoraton shall be carred out by ( ) CN Assocates, Inc. and ts subcontractors and/ or ( ) such other qualfed contractor( s) selected by Thermo Fsher ( collectvely the " Envronmental Contractor"). For any Work or Restoraton performed on the Cty Property, the Cty must 3

6 approve any subcontractors of CN Assocates, Inc. and/ or such other qualfed contractor( s) selected by Thermo Fsher, such approval not to be unreasonably wthheld. d) The Cty shall coordnate wth and assst Thermo Fsher on the portons of the Work and Restoraton that requre nput from, and approvals by, the Cty. The Cty wll tmely make ts representatves avalable to perform oversght of the Work and the Restoraton, ncludng any confrmatory samplng the Cty chooses to perform to allow the Work and the Restoraton to proceed n a tmely manner wthout Thermo Fsher ncurrng delay charges from the Envronmental Contractor. e) In performng the Work and the Restoraton, Thermo Fsher assumes the responsblty for dentfyng the presence and locaton of any and all ppelnes, ppng, conveyancng mechansms, conduts, cables, tanks, power lnes or other nstallatons or equpment whether above- ground or underground. However, n response to a one call notfcaton, the Cty wll mark underground structures on the Cty Property covered by the one call system and Thermo Fsher may rely upon those marked locatons. f) Thermo Fsher shall be the generator of any and all Wastes ( as defned below) arsng out of the Work or the Restoraton, and Thermo Fsher shall be solely responsble for the dsposal of all such Wastes n accordance wth Applcable Laws. Thermo Fsher further agrees that any and all Wastes ( as defned below) resultng from the Work and/or the Restoraton shall only be dsposed at facltes that are permtted for such Wastes and whch are lsted on Attachment D. For the purposes of ths Remedaton Agreement, " Wastes" means any radologcal materal removed from any of the Affected Propertes and any other materals ( x) orgnatng at the Faclty or ( y) brought onto the Affected Propertes by Thermo Fsher durng performance of the Work or the Restoraton, and that may no longer be used for another purpose and s a chemcal, substance, object, waste, or combnaton thereof, that s or may be hazardous to human health or safety or the envronment. g) Thermo Fsher shall take all steps necessary to ensure that the Affected Propertes reman free and clear of any and all clams, lens, securty nterests or other encumbrances n favor of the Envronmental Contractor. In the event that the Envronmental Contractor asserts a len or any smlar clam aganst any of the Affected Propertes as a result of the Work or the Restoraton, Thermo Fsher shall promptly take acton to remove and dscharge the len. 4. Access to the Cty Property. a) Subject to the specfc condtons of ths Remedaton Agreement, the Cty shall provde Thermo Fsher, ts consultants, contractors, and any desgnees wth lmted and non- exclusve access to the Cty Property as necessary to perform the Work and the Restoraton. The access provded heren s ntended and shall be construed only as a temporary lcense to perform Work and not as a grant of an easement or any other nterest n the Cty Property. The access provded heren shall nclude the ablty to brng all equpment reasonably necessary for Thermo Fsher to complete the Work and the Restoraton on the Cty Property, except that Thermo Fsher shall not unreasonably nterfere or dsrupt any Cty actvtes occurrng on the 4

7 Cty Property. The Cty shall not unreasonably nterfere or dsrupt any Work or Restoraton that Thermo Fsher s performng on the Cty Property. b) After executon of the Remedaton Agreement, Thermo Fsher shall notfy the Cty n wrtng at least seven ( 7) calendar days pror to commencng on the Cty Property any Work or Restoraton performed pursuant to ths Remedaton Agreement, wth such notce, contanng, wthout lmtaton: ( ) tme and date of planned entry onto the Cty Property; ) the dentty of any subcontractors of CN Assocates, Inc. and any other contractor( s) selected by Thermo Fsher and reasonably approved by the Cty pursuant to Secton 3( c) above and whch wll enter the Cty Property ( for purposes of clarty, Thermo Fsher s only requred to provde the names of the enttes and not the names of any ndvduals) as well as the equpment they wll be usng; ( ) a descrpton of the work planned durng the entry; ( v) expected duraton of access; and ( v) all health and safety plans for the Work or Restoraton. If prevously provded to the Cty n the form of a wrtten work plan, Thermo Fsher may reference the prevously submtted work plan and need not reterate the work plan nformaton n each notce under ths secton as long as there are no materal varatons to or from the prevously exstng work plans. c) The access onto Cty Property shall termnate on the later of () Aprl 1, 2017 or ( ) the date the Cty has determned that all Work ( as determned n accordance wth Attachment C, referred to as the " Clearance Crtera") and Restoraton on the Cty Property s complete. d) Notwthstandng any other provson n ths Secton 4, the Cty retans the sole dscreton to unlaterally termnate access to the Cty Property n the event of Thermo Fsher' s materal non- complance wth any of the provsons heren, and ts falure to cure any such noncomplance wthn fourteen ( 14) calendar days followng recept of wrtten notce of ts noncomplance from the Cty. 5. Termnaton of Agreement. Ths Remedaton Agreement expres and termnates on the later of ether ( ) Thermo Fsher' s completon of the Work ( n accordance wth the Clearance Crtera) and Restoraton on all of the Affected Propertes or ( ) Aprl 1, 2021 ( the Termnaton Date"). However, the Cty retans dscreton to unlaterally termnate the Remedaton Agreement, as executed or amended at any tme, n the event of Thermo Fsher' s materal noncomplance wth ths Remedaton Agreement, and ts falure to cure any such noncomplance wthn fourteen ( 14) calendar days followng recept of wrtten notce of ts noncomplance from the Cty. Thermo Fsher retans dscreton to unlaterally termnate the Remedaton Agreement, as executed or amended at any tme, n the event of the Cty' s materal noncomplance wth ths Remedaton Agreement, and ts falure to cure any such noncomplance wthn fourteen ( 14) calendar days followng recept of wrtten notce of ts noncomplance from Thermo Fsher or the Cty' s termnaton of Thermo Fsher' s access to the Cty Property pror to Thermo Fsher' s completon of the Work and Restoraton. 6. Informaton Sharng. a) Thermo Fsher shall promptly provde to the Cty all data, survey results, and data reports ( other than personal nformaton) ( the " Informaton") n ts care, custody, or 5

8 control and whch relate to the Release, the Contamnaton, the Work, and/or the Restoraton, all regardless of the date generated. Furthermore, Thermo Fsher shall promptly provde to the Cty any and all wrtten communcatons wth any federal, state or local governmental authorty ncludng, but not lmted to, the DSHS), ncludng emals, that are n ts care, custody, or control and whch relate to the ( ) Cty Property and ( ) Release, the Contamnaton, the Work, and/ or the Restoraton, regardless of the date generated. In addton, Thermo Fsher shall, upon the Cty' s request, promptly provde the Cty access to all raw data, whether or not verfed, arsng from the Work or the Restoraton. b) The Cty shall be permtted to have representatves present durng all Work and Restoraton, and Thermo Fsher shall, upon the Cty' s request, allow the Cty and ts representatves to perform tests to dentfy radoactve materal and vsual nspectons, at, on, or n the Faclty. The oblgaton to provde Informaton under ths Remedaton Agreement shall not extend to prvleged attorney- clent communcatons or attorney work product nformaton. Thermo Fsher shall have no lablty for any njures or damages arsng from the presence of a Cty representatve durng Work or Restoraton. that: 7. Safety and Standard of Care. Thermo Fsher represents, covenants and warrants a) the Work and the Restoraton shall be conducted n a safe and workmanlke manner consstent wth the generally accepted level of care and skll ordnarly exercsed by professonal engneers and envronmental consultants performng servces of a smlar nature; b) t shall take reasonable actons and shall mplement reasonable protectons necessary to ensure that the Work and the Restoraton, and all equpment, materals and substances generated or brought onto the Affected Propertes, ncludng the Cty Property but excludng the Faclty, pose no unreasonable threat to the safety or health of persons or the envronment; c) the Work and the Restoraton cause no njures to persons or damage to any of the ( ) Affected Propertes, ncludng the Cty Property but excludng the Faclty, or ( ) other Cty property ( real or personal) or of any other person, property, ppelnes, or other structures on Cty property; d) t shall remove decontamnaton materals or other waste materals from the Work or Restoraton as soon as reasonably practcable; such materals wll be generated, owned and be the sole responsblty of Thermo Fsher; d) t must call the Texas One Call System at to locate any underground facltes at least 48 hours pror to commencement of Work and Restoraton on the Cty Property that would result n more than surfcal ground dsturbance; and e) all persons performng the Work and the Restoraton shall be approprately traned, certfed, permtted and/ or lcensed as may be applcable to the job they perform n accordance wth all Applcable Laws ( as defned below), ncludng, but not lmted to, those related to work around radoactve substances. 6

9 8. Complance wth Applcable Laws. Thermo Fsher represents, covenants and warrants that t shall comply wth all applcable laws and regulatons n undertakng the Work and the Restoraton, ncludng any and all federal, state or local laws, statutes, rules, ordnances, codes, permts, drectves, standards, certfcates and lcenses of any governmental authorty n effect durng the term( s) of ths Remedaton Agreement (" Applcable Laws"). 9. Performance Bond and Insurance. a) Wthn ten ( 10) days of both Partes' executon of ths Remedaton Agreement, Thermo Fsher shall secure and mantan, at ts sole cost and expense and usng the forms attached hereto as Attachment E, a so- called Performance Bond and Payment Bond untl such tme as the Cty has approved all Work and Restoraton on the Cty Property. Such Performance and Payment Bond shall be n the amount of $ 3, 500, 000, executed by a Surety authorzed to do busness n the State of Texas, and meetng the other requrements of Texas Insurance Code Chapter b) For all Work or Restoraton performed on the Cty Property, Thermo Fsher represents, covenants and warrants that t and the Envronmental Contractor shall ( ) mantan approprate lablty nsurance to cover labltes that could occur n connecton wth the Work or the Restoraton, reasonably approved by the Cty, and wth lmts of at least 1, 000, 000 per occurrence and $ 2, 000, 000 general aggregate, ( ) ensure that the nsurance ncludes contractor lablty coverage and polluton lablty coverage nsurng actons undertaken pursuant to ths Remedaton Agreement, ( ) ensure that the applcable polces wll also name the Cty as an addtonal nsured and wave all subrogaton aganst the Cty, ( v) provde approprate documentaton of ths coverage and addtonal nsured status pror to ntatng any Work or Restoraton, and ( v) ensure that the applcable polces shall not be cancelled, materally changed or have coverage reduced whle the Envronmental Contractor s performng Work or Restoraton wthout thrty (30) days' pror wrtten notce to the Cty. 10. Meetngs and Telephone Conferences wth Governmental Authortes. Thermo Fsher shall provde the Cty wth reasonable advance notce of meetngs or telephone conferences wth any federal, state or local governmental authorty ( ncludng, but not lmted to, the DSHS) relatng, n whole or part, to ( ) the Cty Property and ( ) the Release, the Contamnaton, the Work, and/ or the Restoraton. Thermo Fsher shall not object to the Cty havng ts representatves attend and partcpate n such meetngs or telephone conferences. The foregong oblgaton shall not apply to any unscheduled telephone conference ntated by any federal, state or local governmental authorty ( ncludng, but not lmted to, the DSHS). 11. Thermo Fsher Indemnfcaton and Release. a) Thermo Fsher shall, and hereby agrees to, ndemnfy, defend and hold harmless the Cty, from and aganst any and all Clams. In the event a Clam s made aganst the Cty, the Cty shall provde Thermo Fsher wth wrtten notce promptly after becomng aware of such Clam. Thermo Fsher may elect to defend any Clam through counsel of ts choce. 7

10 b) To support ts oblgatons n ths Secton 11, Thermo Fsher shall, wthn ten ( 10) busness days from the date both Partes have executed ths Remedaton Agreement, secure an rrevocable letter of credt, wth the Cty as the sole benefcary, n the amount of$ 10 mllon, usng a form and fnancal nsttuton reasonably acceptable to the Cty. Thermo Fsher' s oblgaton to mantan such rrevocable letter of credt shall termnate four (4) years after all Work and Restoraton s complete, even f that date s later than the Termnaton Date, except that f there s a Clam that has not been fully resolved by that termnaton date, such letter of credt shall be mantaned untl such Clam has been fully resolved, ether by settlement or fnal and non-appealable judgment. Thermo Fsher may substtute for the letter of credt another form of fnancal assurance that s acceptable to the Cty. c) If Thermo Fsher elects to defend a Clam through counsel of ts choce, then wthn ( 10) busness days after recevng notce of such Clam Thermo Fsher shall notfy the Cty of ts ntent to do so and the Cty shall promptly surrender defense of such Clam to Thermo Fsher. Pendng such notce and assumpton of defense, the Cty shall not settle the Clam or take any steps to defend that could prejudce Thermo Fsher' s assumpton of the defense. If Thermo Fsher elects to defend a Clam, Thermo Fsher shall retan sole authorty to defend the Clam. However, Thermo Fsher shall not settle any Clam ( or make any admsson or concesson n connecton therewth) wthout the pror wrtten consent of the Cty (whch shall not be unreasonably wthheld). The Cty shall cooperate reasonably wth Thermo Fsher n connecton wth the performance by Thermo Fsher of ts oblgatons n ths Secton. d) For each Clam for whch Thermo Fsher has elected to defend, Thermo Fsher shall have the contnung oblgaton to keep the Cty reasonably updated about the status of ts defense of such Clam( s) and any related settlement dscussons. e) Except as provded n Secton 3( e), Thermo Fsher expressly acknowledges and agrees that the Cty has made no representatons to Thermo Fsher n connecton wth any condton, contamnaton or substances that may exst on, near, about, or under, any of the Affected Propertes. Thermo Fsher expressly RELEASES the Cty, and ts respectve offcers, drectors, agents and employees, from and accepts all rsks, known or unknown, of enterng the Affected Propertes, performng any work thereon, and that may be found to exst from any condton, contamnaton or substances on, near, about or under such Affected Propertes. 12. Payment of Costs. a) Wthn seven ( 7) busness days of Thermo Fsher' s recept of a fully executed verson of ths Remedaton Agreement, Thermo Fsher shall pay the Cty the amount of $229, , representng the Cty' s nternal and external ( e. g., legal and techncal) costs arsng out of, or relatng to, the Release, the Contamnaton, the Work, and the Restoraton, pror to the date ths Remedaton Agreement was sgned by both Partes. b) Thermo Fsher further agrees to remburse the Cty for all reasonable costs that the Cty ncurs after the date ths Remedaton Agreement was sgned by both Partes and 8

11 pror to the Termnaton Date, and whch arse out of, or relate to, the Release, the Contamnaton, the Work, and/ or the Restoraton, more partcularly descrbed as follows: ) the Cty' s costs of the followng Cty personnel usng the correspondng rates shown below: Cty Engneer ( charged at $ per hour), Cty Attorney ( charged at $ per hour), the Drector of Envronmental & Neghborhood Servces ( charged at $ per hour), Publc Works Drector ( charged at $ per hour), Cty Manager charged at $ per hour), Frst Assstant Cty Manager ( charged at per hour), Assstant Cty Managers ( 2) ( each charged at $ per hour), and the Communcatons Drector (charged at $ per hour). ) fees and expenses of the Cty' s outsde legal counsel, ncludng Cran, Caton& James, P. C.; ) fees and expenses of the Cty' s techncal advsors, ncludng Envronmental Scence and Engneerng ( ESE) Partners, L.L.C.; and v) fees and expenses of the Cty' s outsde publc relatons consultants, ncludng Ward Communcatons. c) The rembursement oblgaton under Secton 12( b) shall not exceed 500, , unless crcumstances later dctate that a larger amount s necessary. Should the Cty later decde that a larger rembursement oblgaton s necessary, the Partes agree to negotate n good fath such addtonal rembursement oblgaton. Notwthstandng the foregong, the lmtaton on the rembursement oblgatons n ths Secton 12( c) do not lmt n any way any authorty or rght the Cty has outsde of ths Agreement to obtan addtonal rembursement should the Cty ncur costs n excess of the lmt on Thermo Fsher' s oblgaton n ths Agreement. d) The Cty may present clams for rembursement of costs contemplated under Secton 12( b) above to Thermo Fsher. Followng recept of such clams for rembursement of costs, Thermo Fsher shall have the rght to revew and request addtonal nformaton regardng the work underlyng the clam pror to the payment of any such rembursement clam. Upon recept of satsfactory nformaton on the work underlyng any rembursement clam, Thermo Fsher agrees that t wll make prompt payment to the Cty, but n no case shall any such payment be delayed longer than thrty ( 30) days followng Thermo Fsher' s recept of suffcent nformaton to confrm the clam for rembursement. 13. Notces. Thermo Fsher represents, covenants and warrants that t shall fully comply wth all notce provsons heren. Except as otherwse specfcally provded heren, all notces requred or made under ths Remedaton Agreement shall be n wrtng and shall be made as follows: 9

12 To the Cty: Meredth Rede, Esq. Cty of Sugar Land P. O. Box 110 Sugar Land, Texas Phone: ( 281) Fax: ( 281) mrede@sugarlandtx. gov and Kelly D. Brown, Esq. Cran, Caton & James, P. C McKnney, Sute 1700 Houston, Texas Phone: ( 713) Fax: ( 713) kbrown@crancaton. com To Thermo Fsher: Robert Fetter Thermo Fsher Scentfc 168 Thrd Avenue Waltham, Ma Phone: ( 781) robert. fetter@thermofsher. com and George Wlknson, Esq Fannn Street, Sute 2500 Houston, Texas Phone: ( 713) Fax: ( 713) gwlknson@velaw.com Ether Party may change the above desgnatons by wrtten notce to the other party. 14. General Provsons. a) The Rectals and Attachments are ncorporated heren and deemed a part of ths Remedaton Agreement. b) Ths Remedaton Agreement and ts valdty, constructon and all rghts under t shall be governed by the laws of the State of Texas, wth exclusve venue n Fort Bend County, Texas. c) Ths Remedaton Agreement supersedes any pror agreements, ncludng the Interm Envronmental Remedaton Agreement ( effectve on or about July 22, 2016), and contans the entre agreement of the Partes on the matters covered. No other agreement, statement or promse made by any party or agent of any party that s not n wrtng and sgned by 10

13 all the Partes to ths Remedaton Agreement shall be bndng. Any amendments to ths Remedaton Agreement shall be n wrtng and sgned by all Partes hereto. d) Ths Remedaton Agreement cannot be assgned by ether the Cty or Thermo Fsher wthout the express wrtten consent of the other Party. Ths Remedaton Agreement shall nure to the beneft of and shall be bndng upon the Cty and Thermo Fsher and ther successors and assgns. e) The provsons of ths Remedaton Agreement were negotated by all the Partes hereto, and ths Remedaton Agreement shall be deemed to have been drafted by all the Partes hereto. f) Ths Remedaton Agreement may be executed n counterparts, each of whch shall be deemed to be an orgnal, but such counterparts when taken together shall consttute but one agreement. g) The Partes represent, covenant and warrant that the followng sgnatores to ths Remedaton Agreement are authorzed to bnd the Partes to the terms hereof. h) Falure to nsst upon strct complance wth any provson hereof shall not be deemed a waver of such provson or of any other provson hereof The waver by any party of any breach of any of the provsons of ths Remedaton Agreement shall not consttute a contnung waver or a waver of any subsequent breach of the same, or of any other provson of ths Remedaton Agreement. ) The nvaldty or unenforceablty of any provson hereof shall not affect the valdty or enforceablty of any other provson. In the event any provson of ths Agreement s held nvald or unenforceable, the Partes agree to nterpret and apply the remander of ths Agreement n a manner so as to mantan ts orgnal ntent n all materal aspects. j) The exstence of ths Remedaton Agreement, any and all oblgatons hereunder, shall not be construed as an admsson of any ssue of fact or law or as an admsson or adjudcaton of any lablty and shall not be admssble n any other sut or proceedng. k) Notwthstandng anythng to the contrary, the Partes' rghts and oblgatons n Sectons 2, 6, 9, 11, expraton or termnaton of the Remedaton Agreement. 1) Notwthstandng 13, and 14 of ths Remedaton Agreement shall survve the Secton 14( a) of ths Remedaton Agreement, to the extent of any conflct between a provson n ths Remedaton Agreement and a provson n any Attachment hereto, the provson n the Remedaton Agreement shall control. To the extent of any conflct between a provson n an Attachment to ths Remedaton Agreement and any work plan submtted by Thermo Fsher pursuant to ths Remedaton Agreement and approved by the Cty, the provson n the Attachment shall control. 11

14 IN WITNESS WHEREOF the Partes have executed ths Remedaton Agreement effectve as of Aprl 1, THE CITY: THE CITY OF SUGAR LAND, TEXAS, a homerule cty duly ncorporated under the laws of the State of Texas B y: % ' Ttle: CS 7 Date:. 0/ APPROVED AS TO FORM: 71/ 1 G - TTEST: L..., 4 A 471( 4 HERMO FISHER: CHERMO FISHER SCIENTIFIC INC., a elaware Corporaton By: / Ttle:!//*( -C" Date: // -/ - / G 12

15 Attachment A

16 Remedaton Agreement- Attachment A Cesum ( Cs- 137) and Amercum( Am-241)

17 Attachment B

18 Remedaton Agreement - Attachment B Work Scope The Work shall consst of the followng actvtes, and those set forth n such work plans reasonably approved by the Cty: 1. Cty of Sugar Land Storm Water dtches a. Desgn and authorzatons. Survey the elevatons of the excavaton areas n the East- West and North- South Dtches.. Determne fnal contours after restoraton. The contours wll match the elevatons at the upstream and downstream ends of the excavaton.. Obtan permts and authorzatons requred of Thermo Fsher or the Envronmental Contractors for the Work. The partes antcpate that such permts and authorzatons shall nclude, at a mnmum, the followng knds of permts and authorzatons: 1) Land Dsturbance Permt from the Cty; 2) Approval by Cty of Stormwater Polluton Preventon Plan that ncorporates practces and eroson control requrements requred pursuant to Secton 9 of the Cty' s Desgn Standards; 3) Coverage under TCEQ' s Stormwater Constructon General Permt; 4) Buldng permt; 5) Wastewater dscharge permt; 6) Rght- of-way permt from the Cty; and 7) Authorzaton from applcable authortes, ncludng the Cty, for water dscharges. b. Storm Dran nvestgaton and remedaton. Survey the storm drans from the nlet on the Thermo Fsher property to the outlet n the East- West Dtch (" Storm Drans") for the presence of Contamnaton / v1

19 . Survey the South Storm Dran System on the Thermo Fsher property between the last storm water nlet on the parkng lot and the second manhole on the Cty Storm Dran for the presence of Contamnaton.. Remedate removable Contamnaton from the Storm Drans. The c. East- West Dtch Envronmental Contractor wll use hgh pressure water for cleanng the Storm Drans. Manage water from the Storm Dran cleanng as allowed by permts, authorzatons, or regulaton. To the extent Contamnaton s not removed after at least two ( 2) pressure washngs, Thermo Fsher and the Cty wll negotate n good fath an approach that reasonably protects the Cty' s nterests.. The East- West Dtch (" E- W Dtch") s approxmately 60 feet wde from bank to bank and approxmately 1, 000 feet long... v. Dewater the E- W Dtch and dscharge the water as allowed by permts, authorzatons, or regulaton. Durng the remedal work, pump as needed dtch water from upstream of the dewatered area to downstream of the excavated area to keep the remedaton area dewatered to the extent feasble durng the remedal process. Remove and replace or remedate and return rp rap at the east end ( 90 ft. x 6 ft. x 1 ft. estmated at 10 tons), west end ( 70 ft. x 6 ft. x 1 ft. estmated at 8 tons) and the md-pont (estmated 2 tons). v. Excavate materal along the length of the E- W Dtch, for an estmated 6 feet along each sde ( 12 ft. total wdth) of the center lne of the dtch, to an approxmate depth of up to 1 foot ( subject to varaton to the extent that current contours vary due to sedmentaton and eroson). v. If Contamnaton s present after the ntal removal, repeat manual spot or area excavaton untl the Clearance Crtera are acheved. v. Remove, by manual excavaton, any partcles located n the E- W Dtch and ts rght-of-way that are not wthn the excavaton area. v. Dspose of excavated materals off-ste. d. Ppe connectng the East- West Dtch to the North- South Dtch ( the " Connectng Ppe") / v1

20 The Connectng Ppe s 48- nches n dameter and approxmately 200 feet long... Survey the Connectng Ppe for the presence of Contamnaton. Clean removable Contamnaton from the Connectng Ppe to the extent feasble usng hgh pressure water or other methods. Manage water from the Connectng Ppe cleanng as allowed by permts, authorzatons, or regulaton. To the extent Contamnaton s not removed after at least two 2) pressure washngs, Thermo Fsher and the Cty wll negotate n good fath an approach that reasonably protects the Cty' s nterests. e. North- South Dtch. The North- South Dtch (" N- S Dtch") s approxmately 30 feet wde at ts base.. Dewater the portons of the N- S Dtch dentfed n Exhbt 1 as " Dewater Zones") n segments. Dscharge the water as allowed by permts, authorzatons, or regulaton.. Durng the remedal work, pump as needed dtch water from upstream of the dewatered area to downstream of the excavated area to keep the remedaton area dewatered to the extent feasble durng the remedal process. v. Excavate materals at the bottom of the N- S Dtch for 600 feet downstream (" 1st Reach") of the confluence of the N-S Dtch wth the E- 1 W Dtch ( the " Outfall") and 200 feet up stream (" 2" Reach") of the outfall to 30 feet n wdth and up to one foot n depth ( subject to varaton to the extent that current contours vary due to sedmentaton and eroson). v. Survey the slopes banks of the N- S dtch from the Outfall to Jess Prtle Drve and spot remedate any partcles located. v. Dspose of excavated materals off-ste. f. Clearance Survey. Cleanng or remedatng as used n the Remedaton Agreement or ts Attachments wll be done to acheve the Closure Crtera n Attachment C / v1

21 g. Restoraton Replace sol removed for spot remedaton wth clean fll as needed to mantan a level ground surface.. Replace sol n the E- W Dtch and N- S Dtch as needed to acheve the fnal desgn contours. For the E- W dtch, the fnal contour wll match the orgnal desgn contour. For the N- S dtch the fnal contour wll provde an even slope from the exstng contours at the upstream and downstream ends of the excavated areas.. Grade, nstall sedment controls, and reseed dsturbed areas. 2. Thermo Fsher Property at 1410 Gllngham Lane Decommsson the under Faclty the requrements of 25 T.A.C under the drecton and oversght of the Department of State Health Servces but subject to the Cty' s rghts under the Remedaton Agreement / I3852vI

22 Attachment C

23 fr z Remedaton Agreement Attachment C fr Closure Crtera work areas. Ths Attachment C to the Remedaton Agreement sets the Closure Crtera for the specfed 1. Dranppes Survey the Storm Drans and Connectng Ppe usng a 2" x2" NaI( Tl) detector Ludlum Model 44-20) coupled wth a rate meter( Ludlum Model ). The Clearance r Crtera s met f the actvty detected s equal to or less than 10 pc/ g. If a Storm Dran segment or the Connectng Ppe shows actvty greater than the Clearance Crtera, then Thermo Fsher wll pressure wash the subject segment of ppe and then perform an addtonal Clearance Survey. If the actvty n the subject ppe segment remans greater than 10 pc/ g after at least two pressure washngs, the Partes wll negotate n good fath an approach that reasonably protects the Cty' s nterests. 2. Dtches Clearance Crtera for the Dtches shall consst of the followng actvtes to confrm that all radoactve partcles are removed: fr fr a. Survey all of the excavated portons of the Dtches usng 3x3 sodum odde detectors to confrm that there are no remanng partcles n the area of the excavatons. b. Survey all of the slopes and banks of the Dtches usng 3x3 sodum odde detectors to confrm that there are no remanng partcles. analyss from the excavated areas. Two c. Collect samples for laboratory representatve samples wll be collected from each 10 foot by 10 foot grds, representng a total of twenty percent ( 20%) of the excavated area. For purposes of llustraton, the Partes antcpate that the Envronmental Contractors wll collect the followng number of samples: Table 1: Removal Areas & Confrmaton Samplng Frequency Length Wdth Area 20% 10X10 Number of feet) ( feet) ( ft2) Samplng Sample Samples t' Cell ft2) ft2) E- W Dtch 1, , 000 2,

24 t N- S Dtch , nd Reach) I 1 N- S Dtch , 000 3, t Reach) It d. Perform laboratory analyss of each sample. The Closure crtera s two step for 1 closure samples taken from the frst 200 feet of the E- W dtch Thermo Fsher wll obtan thrd party laboratory analyss for each of the sotopes lsted on Thermo 1 Fsher' s lcense except for Kr-85, H- 3, and TI Isotopes other than Cs- 237 and 1 Am- 241 meet the closure crtera f the sotope s below a Total Effectve Dose Equvalent of 25 mrem as defned by 25 TAC ( ddd)( 2) usng the values for 25 mrem/ yr set out n table B- 2 of NuReg If any sotope exceeds the clearance value then subsequent samples wll be analyzed for that sotope. If any sotope other than Cs- 137 and Am-241 s below the Closure crtera for samples n the frst 200 feet of the E- W dtch, then the analyss of subsequent samples does not need to nclude that sotope. Each of the sol samples satsfes the Closure Crtera for Cs- 137 and Am-241 f the actvty of the sample s equal to or less than 10 pco- Cures per gram ( pc/ g) Cesum- 137 and 2. 1 pc/ g Amercum-241, correspondng to a Total Effectve Dose Equvalent of 25 mrem/ yr usng conservatve default assumptons. 3. Other propertes: Confrm that all radoactve partcles are located and removed to the followng standards: a. Survey 100 percent of the desgnated areas usng: ( 1) Gas flow proportonal floor montor( Ludlum Model 239) coupled wth a rate meter( Ludlum Model 2360), ( 2) 2" x2" NaI(Tl) detector ( Ludlum Model 44-10) coupled wth a rate meter ( Ludlum Model ); ( 3) 3" x3" NaI( Tl) detector ( Ludlum Model 44-20) coupled wth a rate meter ( Ludlum Model ); ( 4) Large- area low-energy NaI( Tl) detector Thermo Fsher G5 Fddler or a Bcron 5XM) coupled wth a rate meter (Ludlum 2221 or Ludlum Model ); or ( 5) small area frskers ( Ludlum 26-1 for beta/ gamma, Ludlum Model 3 wth for alpha) and remove any partcles located. t g b. Survey concrete areas usng the gas flow proportonal floor montor must meet a dual clearance crtera: ( 1) removal of any and all partcles located thereon; and ( 2) be less Acceptable Surface Contamnaton Levels set forth n Table C- 1 attached hereto. c. Collect sol samples and obtan laboratory analyss. The Closure Crtera s met f the actvty of the sample s equal to or less than 10 pc/ g Cesum and 2. 1 pc/ g Amercum correspondng to a Total Effectve Dose Equvalent of 25 mrem/yr usng conservatve default assumptons.

25 4. Cty Property Restoraton a. Restore contours and grades as descrbed n the Work. b. Restore vegetaton to dsturbed areas. c. Repar eroson or other damage to restored areas occurrng wthn 1 year after completon of the Restoraton. If any areas are repared durng the lyear perod, then the 1 year perod shall restart for the area that s repared.

26 cm2 cm2 cm2 s. G C l TABLE C- 1 Acceptable Surface Contamnaton Levels Radonuclde' Average2,3, 6 Maxmum2,4, 5, c U-natural, U- 235, U- 238, 5, 000 dpm 15, 000 dpm and assocated decay alpha/ alpha/ products except Ra- 226, 100 Th-230, Ac- 227, and Pa cm2 Transurancs, Ra- 223, 1, 000 3, 000 Ra- 224, Ra- 226, Ra- 228 dpm/ dpm/ Th- natural, Th- 228, Th- 230, 100 Th- 232, U- 232, Pa- 231, Ac-227, Sr- 90, I- 125, I- 126, 1-129, 1-131, and I cm2 Beta- gamma emtters 5, 000 dpm 15, 000 dpm radonucldes wth decay beta- beta-gamma/ ; f modes other than alpha gamma/ 100 emsson or spontaneous fsson) except Sr cm2 and others noted above t Where surface contamnaton by both alpha- and beta- gamma- emttng radonucldes exsts, the lmts establshed for alpha- and beta- gamma- emttng radonucldes should be appled ndependently. 2 As used n ths appendx, dpm ( dsntegratons per mnute) means the rate of emsson by radoactve materal as determned by correctng the counts per mnute observed by an approprate detector for background, effcency, and geometrc factors assocated wth the nstrumentaton. Average contamnaton level shall not be measured over more than 1 less surface area, the average shall be derved for each object. square meter. For objects of The maxmum contamnaton level apples to an area of not more than 100 square centmeters cm2). 1 The average and maxmum radaton levels assocated wth surface contamnaton resultng from beta- gamma emtters shall not exceed 0.2 mllrad/ hour at 1 cm and 1. 0 mllrad/ hour at 1 cm, respectvely, measured through not more than 7 mllgrams/ cm2 of total absorber

27 Attachment D

28 Remedaton Agreement Attachment D Dsposal Facltes for Wastes Wastes resultng from the Work under the Remedaton Agreement shall be dsposed of at one of the followng facltes n accordance wth all Applcable Laws: 1. Waste Control Specalsts, Inc. Faclty located at 9998 State Hghway 176 West, Andrews, Andrews County, Texas Waste Management, Inc. Coastal Plans Recyclng and Dsposal Faclty located at East Hwy 6 Alvn, TX I