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)	Clients 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 Clients 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 _________________

Clifford L. Schrader, Ph.D.