|
Sample Contract
This Agreement (“Agreement”) is entered into as of this _____day of March,
1998, by and between HAZARDOUS WASTE REMOVAL PROGRAM (“Client”) which has its office
at 420 Washington Avenue Suite 200, Cuyahoga Falls, OH 44221 and _____________________an
_____________________which has its office at _________________________________, for
hazardous waste management services.
WHEREAS, Client will arrange a removal and disposal of waste resulting from
instructional programs from Ohio schools K-12.
WHEREAS, Client requires professional engineering and other services to collect,
identify, package, label, haul, recycle, treat, incinerate and/or dispose of said wastes;
WHEREAS, ____________can provide such services and is in the
business of and has the expertise, experience, resources and capability to
perform the collecting, identifying, packaging, labeling, hauling,
recycling, treating, incinerating and/or disposing of said wastes;
Now, THEREFORE, in consideration of the premises and material promises set
forth below the parties hereby agree as follows:
1. DEFINITIONS
| 1.1 |
Agreement: This Agreement is comprised of (I) this document,
(II) the Request for Proposal dated February 23, 1998, (Exhibit A-1) (III) the
Qualifications and Proposal dated ______(Exhibit A-2), (IV) the Cost Proposal dated
4/28/94 (Exhibit A-3), and (V) all other schedules attached hereto or incorporated
herein by reference. This Agreement shall incorporate any amendments, provided they
are properly written and executed as provided herein. The terms of this Agreement
shall control over any conflicting terms contained in ancillary documents and no
routine correspondence or preprinted forms, quotation forms, invoices, or routine
acknowledgements with preprinted terms and conditions will be effective amendments
of this Agreement.
|
| 1.2 |
Waste Management: For the purposes of the Agreement, hazardous waste (“HW”)
shall be defined as any solid, liquid, semi-solid, or contained gaseous
materials which may have certain hazardous, toxic, corrosive, or
combustible, physical, chemical, biological and radioactive constituents
and properties and “Conforming Waste” shall be material in accordance
with the description stated in Exhibit B.
|
| 1.3 |
Hazardous Waste Removal Program: “Hazardous Waste Removal Program” shall mean the
waste inventories provided by the Client for the collection, treatment, recycling/re-use
and/or disposal of HW materials.
|
| 1.4 |
Services: “Services” shall include the obligations of _____to perform the collection,
identification, packaging, labeling, hauling and disposal of HW pursuant
to the Hazardous Waste Removal Program and as described in the Proposal.
|
2. TERM AND TERMINATION
| 2.1 |
Term: This Agreement shall become effective when signed by both ______ and Client and
shall continue in full force and effect until performance and payment shall be
completed by ________ to Client, respectively, or until either party terminates this
Agreement in accordance with the provisions set forth below.
|
| 2.2 |
Postponement: At its sole option, Client may postpone HW to a later date. In the
event such postponement causes _______to incur extra expenses and/or costs, _________
shall request and Client shall agree to an equitable adjustment in the compensation due
_______ under Section 3 hereof. In the event the parties fail to agree on an equitable
adjustment in compensation caused thereby, such lack of agreement shall not relieve
Client of its responsibility to compensate ___________for extra costs and at the same
time shall not give _________any right to terminate this Agreement nor shall it give
_____ any excuse to fail to perform the Services.
|
| 2.3 |
Termination for Cause: __________ and Client each reserve the right, in its reasonable
discretion, to terminate this Agreement at any time and without liability to the other
party, for the following reasons:
|
|
| (a) |
The receipt of an unfavorable credit report regarding the other party or some other
reasonable indicator that they will not be able to perform this Agreement, such as loss
of a necessary license or use of a facility;
|
| (b) |
Client’s improper failure to pay a material amount of charges for Services or
__________’s non-performance of Services. |
|
| 2.4 |
Termination Without Cause: Neither party may terminate this Agreement without cause.
|
| 2.5 |
Survival: The terms and provisions of Sections 3.3, 7.2, 8.1 through 9.11 shall
survive the termination or expiration of this Agreement.
|
3. PAYMENT TERMS
| 3.1 |
Compensation: ___________ shall provide the Services at the prices stated in the Cost
Proposal, unless otherwise agreed in writing.
|
| 3.2 |
Payment: Invoices may be issued after the actual performance of Services and are
payable thirty (30) days after receipt. All outstanding balances remaining unpaid
thirty (30) days after the due date shall be subject to interest at the rate of one
percent (1%) per month starting from the due date and continuing until paid in full.
|
| 3.3 |
Taxes: __________shall be responsible for and shall indemnify Client against any and
all taxes which may be applied to this transaction.
|
4. PERFORMANCE OF SERVICES
| 4.1 |
Scope of Work: The Services, including all general and special terms and conditions,
shall be as described in this Agreement and Exhibit A. A separate amendment shall be
prepared if Client or ____ proposes any modification to the Services, including but not
limited to changes in description, chemical composition, physical characteristics, or
quantity or the HW.
|
| 4.2 |
Changes in Scope of Work: If Client requests a major modification in the
Services as described in Section 4.1 hereof, _______ reserves the
right to accept or decline such major modification and shall make such
acceptance only by a separate amendment, provided however, that any
postponement of the date of the Collection Program, even it is reasonably
regarded as a major modification, shall be governed by Section 2.2.
Further, with respect to any minor modification in the Services as
described in Section 4.1, Client may define any such minor modifications
and __________ shall accept such minor modification as an amendment to
this Agreement and Client shall compensate __________ for extra costs and
expenses incurred.
|
5. DELIVERY AND ACCEPTANCE OF WASTE MATERIAL
| 5.1 |
____________ shall have no responsibility for the transportation of
the HW to the place of collection or for the packaging, labeling, or other
handling of the HW prior to its acceptance by ___________.
|
| 5.2 |
____________ will be deemed to have accepted the HW when it removes the HW from the
school and determines it to be conforming to the specifications of this Agreement.
|
| 5.3 |
Upon ________’s acceptance of the HW, title, risk of loss and all other incidents of
ownership related to the HW shall pass directly from the individual school to ______;
at no time shall title, risk of loss or any other incidents of ownership or possession
or control be in or with or shift to Client.
|
| 5.4 |
Vendors will be prepared to deliver testimony for the validation of the Hazardous Waste
Removal Program related to the removal and disposal of materials from schools
compliance with applicable regulations, and the corresponding costs of removal, if
testimony is required related to any Program component or process (e.g., before the
Ohio General Assembly, a judge). Vendors will provide evidence of a capacity to
deliver testimony.
|
6. RESPONSIBILITIES
| 6.1 |
Treatment/Disposal: ____________ shall collect, package, label, transport, treat and
dispose of all material accepted in accordance with all applicable, federal, state and
local law and the terms and conditions of this Agreement.
|
| 6.2 |
Use of HW: Unless otherwise specified by Client, _________ may use or, following
proper reclamation, may distribute or sell any of the HW, or any component or residue
thereof, including any sale in connection with the acquisition of __________ by another
company. Client reserves the right to issue an amendment regarding recycling of a
component of the HW; any such amendment shall be deemed a minor modification for which
_________ shall be compensated for any costs or expenses in accordance with Section 2.2.
|
| 6.3 |
Insurance:
|
|
| (a) |
___________ shall maintain, during the term of this Agreement, the insurance coverage
listed in Exhibit C.
|
| (b) |
__________ shall furnish insurance certificates showing the types
and amounts of coverage in effect pursuant to Section 7.4(a), the
expiration dates of such policies, and a statement that no insurance under
such policies will be cancelled by the insurer(s) without thirty (30)
days’ prior written notice to Client. |
|
| 6.4 |
Reports: By _____________, 1998 or in the event of a rescheduling, no later than ten
(10) days after the Hazardous Waste Removal Program, ___________ shall
prepare for and deliver to Client a report on the conduct of operations
during the Hazardous Waste Removal Program. The report shall describe in reasonable detail:
- preparation of the sites
- the number of participants
- the materials accepted
- the materials refused
- the disposition of the materials accepted
- whether or not there were any spills or releases
- the actions taken with respect to spills or releases
____________ shall make a copy of all manifests a part or attachment to said report.
|
7. WARRANTIES, LIMITS OF LIABILITY AND INDEMNIFICATION
| 7.1 |
_____________Warranties: ____________ warrants only: (a) the
express statements in this Agreements; (b) the Services will be performed
in compliance with applicable federal, state and local laws and
regulations and in a reasonably safe manner using the highest standards of
nationally recognized and industry-accepted practices and procedures; (c)
___________ is in the business of managing HW and other waste material and
has the requisite expertise, experience, facilities (or access thereto),
equipment, qualified personnel and legal right to perform the services;
and (d) any facilities or equipment used by____________ to perform the
services shall be in, and licensed or permitted as required for, material
compliance with applicable federal, state and local laws and regulations.
This warranty is the sole and exclusive warranty given by
_____________ in connection with any services performed by ___________.
_______________ MAKES NO OTHER PRESENTATION, GUARANTEE OR WARRANTY
OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION, WARRANTIES
AS TO FITNESS FOR A PARTICULAR PURPOSE OR MERCHANTABILITY.
|
| 7.2 |
LIMITS OF LIABILITY: The fees and payments provided for in this Agreement
are based solely on the cost of providing the Services and are unrelated
to the value of the HW and other waste material, the value of property or
any other value. Client
agrees that __________is not an insurer of the Services, and will not be
liable for losses which may occur as a result of malfunction or
non-function of equipment utilized in providing Services, except to the
extent that such equipment is owned or controlled by ___________ or such
malfunction or non-function is due to the negligence or failure of,
performance by _____________. Except
for the indemnification provisions of this Agreement, which are not
limited by this Section, any liability or obligation of __________, and
the remedy of Client (which shall be at the option of Client), in
connection with any services provided by ___________ shall be limited to (i)
repeating the Services provided, or (ii) compensating Client for the extra
cost or expense of substitute Services, or (iii) refunding in full or in
part the fees paid by Client for the Services.
Except for the indemnification provisions of this Agreement, which
are not limited by this Section, the liability of __________ to Client
shall not exceed the higher of (x) the cost to Client to obtain substitute
Services in the event _________ shall not perform or (y) the compensation
paid by Client for Services and materials provided directly by ___________
this Agreement exclusive of any compensation paid to or through
_____________ for Services and materials provided by __________’s
subcontractors or any third party.
|
| 7.3 |
Indemnification:
|
|
| (a) |
____________ shall protect, defend, indemnify, and hold harmless
the Client and all site
owners (“Indemnitees”) from and against all liabilities, losses,
costs, damages (including consequential damages), fines, suits,
administrative proceedings, judgements, and expenses (including
attorneys’ and consultants’ fees) (collectively referred to as
“costs”) which may be asserted, claimed or recovered against or
imposed upon any collection site, the Indemnitees, the __________, or any
of the, arising out of or in connection with the Hazardous Waste Removal
Program and; (i) applicable requirements of any environmental law; (ii)
any environmental claims; (iii) the failure of __________ or any
subcontractor to obtain, maintain, or comply with any applicable
environmental permit; (iv) the presence or existence of hazardous
materials, including waste, at, on, about, under, within, near or in
connection with the collection sites; (v) the transport, treatment,
storage, collection, disposal or arrangement for the disposal of hazardous
materials whether on any of the collection sites or originating from any
of the collection sites and transported off site; (vi) any other
obligations or actions of __________ or subcontractor pursuant to the
contract. ____________’s
obligations hereunder shall not be diminished or affected in any respect
as a result of (x) any obligation or action of Indemnitees taken pursuant
to the Hazardous Waste Removal Program,
unless such action is willfully improper or reckless, or (y) any notice or
disclosure or other knowledge, if any, by, the Authority or any other
Indemnitee of the presence or existence of hazardous materials at, on,
about, under, within, near the collection sites in connection with the
Hazardous Waste Removal Program, nor shall any Indemnitee be deemed to
have permitted any release of hazardous materials at, on, about, under,
within, near the collection sites in connection with the Hazardous Waste
Removal Program, or any other matter covered by __________’s obligations
hereunder, merely because any Indemnitee had notice, disclosure or
knowledge thereof, whether at the time this Agreement is delivered or at
any time thereafter.
|
| (b) |
In the event that any remedial work is necessary or required under
any law because of, or in connection with, the presence, release or
threatened release of hazardous materials in or into the air, soil, ground
water or surface water at, on, about, under within or near any collection
site as a result of or in connection with the Hazardous Waste Removal
Program, ___________shall, within twenty-four (24) hours after written
demand for performance thereof by the Indemnitee (or such shorter period
of time as may be required under any applicable law, regulation, order or
agreement), promptly commence, or cause to be commenced, and thereafter
diligently prosecute to completion, all such remedial work.
All such remedial work shall be performed by the ____________ or
one or more subcontractors, reasonably approved in advance in writing by
the Indemnitee. The approval
rights granted to the Indemnitees in the immediately preceding sentence
are limited to those necessary and reasonable to allow the Indemnitees to
protect their respective interests in the site.
All costs of such remedial work shall be paid by ____________
including, without limitation, reasonable costs incurred by the Indemnitee
in connection with the monitoring or review of such remedial work.
In the event __________ shall fail to promptly commence, or cause
to be commenced, or fail to diligently prosecute to completion, such
remedial work, Indemnitees may, but shall not be required to, cause such
remedial work to be performed and all costs of such remedial work shall
become an obligation of the __________under the contract.
|
| (c) |
This indemnification and hold harmless agreement, and all rights
and obligations hereunder shall survive the completion of the Collection
Program and any termination of the contract. |
|
| 7.4 |
Force Majeure: In no event shall either party have responsibility or liability to the
other for any failure or delay in performance which results, directly or indirectly,
in whole or in part, from any cause or circumstance beyond its control.
Such causes and circumstances shall include, but not be limited to:
fires; floods; strikes; riots; sabotage; explosion; adverse weather
conditions; unavoidable casualties; unavailability of labor; materials;
transportation or services; acts of God or of the public enemy; acts of
the other party; and court orders, acts, orders or regulations of any
governmental agency or loss of permits which are not based upon the
actions or responsibilities of either party.
Work stoppage or interruption in the performance of services under
this Agreement caused by any of the above may result in additional costs
beyond those outlined by ___________ in the Proposal, which shall entitle
___________ to an adjustment in the charges and fees for Services under this Agreement.
|
| 7.5 |
Indemnification of _____________:
Client shall indemnify, defend and hold harmless, ____________ and
its affiliates, directors, officers, shareholders, employees, agents and
subcontractors from and against any and all claims, causes of action,
penalties, suits, judgements, damages, losses, liabilities, expenses,
payments, fines and/or other costs (including but not limited to liability
to a third party, reasonable attorneys’ fees and court and arbitration
costs), [hereinafter referred to as “Claims”] which all or any one of
them incur or are found to be legally liable to the extent such Claims
arise from, or are caused by:
|
|
| (a) |
the failure of any warranty or representation of Client to be true,
accurate and complete;
|
| (b) |
the gross negligence or willful misconduct of Client or its
directors, officers, employees or agents in connection with the Services
provided by _________. |
|
8. MISCELLANEOUS
| 8.1 |
Delegation and Subcontracting: __________ may not, without the prior written consent of
Client, delegate or subcontract the performance of the work, or any portion
thereof, which is by this Agreement undertaken by ___________. Notwithstanding the
foregoing: (i) Client hereby consents to ___________ subcontracting the
transportation of Waste Material to ____________(EPA ID No. __________);
and (ii) Client hereby consents to ____________subcontracting any analysis
conducted to ______________.
|
| 8.2 |
Confidentiality: _____________
shall not disclose confidential information expressly identified by Client
as such to anyone other than Client or its agent or counsel, except as
required by subpoena, notice of deposition or other discovery request or
otherwise required by law or order of a court or regulatory agency.
If any legal proceedings including, but not limited to, any
subpoenas, notices of deposition or other discovery requests are
instituted against a party to this Agreement to obtain confidential
information, such party shall immediately notify the other party in
writing with respect thereto. ___________ shall have no obligation to oppose
any legal proceedings to obtain confidential information. In
the event Client opposes such legal proceedings, it shall do so at its own
expense and shall indemnify, defend and hold harmless ___________ from and
against any and all claims, fines, penalties, causes of action,
liabilities, losses, damages, costs and expenses (including, but not
limited to, reasonable fees and expenses of attorneys and court costs)
which __________ incurs or for which it is found to be legally liable in
connection with any such legal proceedings.
|
| 8.3 |
Entire Agreement: This
Agreement constitutes the entire Agreement between the parties with
respect to the Services and supersedes all prior negotiations,
representations or agreements relating thereto, written or oral, except to
the extent that they are expressly incorporated herein.
Unless otherwise provided for herein, no amendments, changes,
alterations or modifications of this Agreement shall be effective unless
in writing signed by each of the parties.
Each of the parties has been involved in determining the provisions
of this Agreement and no ambiguity or interpretation of this Agreement or
any of its provisions shall be resolved or determined in favor of or
against a party based, in whole or in part, on whether or not such party
has prepared this Agreement or any provision hereof.
Any additional or inconsistent provisions, terms or conditions
contained in any purchase order, requisition, notice of authorization to
proceed or other communication from Client or _________ which is in
addition to or inconsistent with any of the provisions, terms or
conditions of this Agreement are hereby rejected and shall not become a
part of this Agreement or deemed to have been accepted by ____________
reason of ___________’s performance of the Services or Client’s
acceptance thereof.
|
| 8.4 |
Severability: The various terms, provisions and covenants and portions thereof herein
contained shall be deemed to be separable and severable, and the
invalidity or unenforceability of any of them shall in no manner affect or
impair the validity or enforceability of the remainder hereof.
|
| 8.5 |
___________ Status: ___________, in performing the Services, shall be deemed to be an
independent contractor and not an agent, employee, partner or joint venturer of Client.
|
| 8.6 |
Waiver: No waiver of the terms, conditions and/or covenants of this Agreement shall be
binding and effective unless the same shall be in writing signed by the parties.
No waiver by either party of any provision or condition of this
Agreement shall be construed or deemed to be a waiver of any other
provision or condition of this Agreement, or a waiver of a subsequent
breach of the same provision or condition, unless such waiver be so
expressed in writing signed by the parties.
|
| 8.7 |
Assignment: Client may not assign this Agreement or any provision hereof without the
prior written consent of ____________, which consent may be withheld.
|
| 8.8 |
Notices: Any notice required or permitted to be given under this Agreement shall be
in writing, shall be deemed duly given if delivered in person, telecopies or
deposited in the United States mail, first class, certified or registered
mail, postage prepaid, return receipt requested, to the address first
above stated (or to such other address as either party may specify from
time to time by written notice). Any notice shall be deemed given when received by the
party to whom it was so delivered, transmitted or mailed. Both parties shall
acknowledge in writing the receipt of any notice delivered in person.
|
| 8.9 |
Section Headings: Headings on particular sections are inserted only for convenience
and are in no way to be construed as a part of this Agreement or as a limitation of the
scope of the section to which they refer.
|
| 8.10 |
Governing Law: The
validity, interpretation and performance of this Agreement, and the legal
relations of the parties, shall be governed by and construed in accordance
with the laws of the State of Ohio and the parties hereby stipulate that
the County of Summit, Ohio shall be the venue of any legal action.
|
IN WITNESS WHEREOF,
the parties have caused this Agreement to be executed by their duly
authorized representatives as of the day and year first above written.
SUMMIT/AKRON SOLID WASTE
MANAGEMENT AUTHORITY
______________________________
By ______________________________
By ___________________________
_________________________________
______________________________
(Title)
(Title)
Dated ____________________________
Dated_________________________
Agreement
EXHIBITS
A-1. Request for Proposal dated ___________(approx.)
A-2. Qualifications and Proposal dated _____________
A-3. Cost Proposal
B. Household Hazardous Waste; Conforming Waste
C. Insurance Coverage Maintained by _________________
|
