This document sets forth the template contract to be entered into between a consultant and a company for the provision of environmental consulting services. The draft form anticipates common issues such as the potential presence of hazardous materials, and contains numerous comments and optional language to ensure such issues are addressed.
This document sets forth a template contract to be entered into between a consultant and a company for the provision of environmental consulting services. The draft form anticipates common issues such as the potential presence of hazardous materials, and contains numerous comments and optional language to ensure such issues are addressed. The agreement specified that the consultant is an independent contractor and that the consultant will receive no employee benefits. ENVIRONMENTAL/GREEN CONSULTING AGREEMENT THIS CONSULTING AGREEMENT ("Agreement") is made and entered into as of the ___ day of _____, 20__, [Instruction: Insert date.] by and among _____ [Instruction: Insert company name.], a _____ [Instruction: Insert company formation information.] ("Company"), and _____ [Instruction: Insert consultant’s name.] ("Consultant"). WITNESSETH: WHEREAS, Consultant is recognized as _____ [Instruction: Insert area of expertise.]; and WHEREAS, the Company desires to retain Consultant to provide services related to and in support of efforts in which Consultant has expertise; and WHEREAS, Consultant is in the business of providing such consulting services and has agreed to provide the services in accordance with the terms and conditions set forth in this agreement; NOW, THEREFORE, in consideration of this Agreement and other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties agree as follows: 1. Consultant shall furnish the Company with his best advice, information, judgment and knowledge with respect to the services related to and in support of efforts in which Consultant has expertise which is to be provided in accordance with this Agreement. Specifically, Consultant shall _____ [Comment: Insert specific duties Consultant shall have under Agreement.] (“Project”). 2. Company shall retain Consultant as set forth in this Agreement with respect to _____ [Instruction: Insert what Consultant will do for Company.] of Company’s property located at _____. Company represents and warrants it is the sole and lawful owner of the Premises. [Instruction: Insert property location. If the property is not owned by Company, please revise the language to reflect correct owner and Company’s position with respect to the property] (“Premises”). 3. The Consultant will _____ [Instruction: Insert broad details of what consultant will do, e.g., perform and test sample borings and produce a findings report with respect to same.] Consultant, in its sole discretion, may retain the services of a qualified _____ [Instruction: Insert any additional services which Consultant may retain to perform services.] firm to assist with or to provide the required services. [Comment: Parties should state here who will pay for additional required services.] 4. The term of this Agreement shall begin on _____ [Instruction: Insert commencement date.] and shall, subject to the provisions for termination and/or permitted extensions set forth herein, continue until and terminate on _____ [Instruction: Insert termination date.]. © Copyright 2012 Docstoc Inc. 2 5. It is understood that the Project is based on the information provided by Company. If this information is incomplete or inaccurate, or if unexpected conditions are discovered, the Project may change, even as the work is in progress. In addition, Company may request additional services which will constitute a change in the Project. When a change in the Project is necessary, a written amendment to this Agreement shall be executed by Company and Consultant prior to Consultant commencing the change in the work or services. If Consultant believes an immediate change is necessary to protect human health or the environment, a written amendment incorporating the change shall be made as soon as is practicable, and Company’s consent to such amendments shall not be unreasonably withheld. In such instance, Consultant may prior to such written amendment, in its sole discretion, either continue work on the Project, incorporating such change as is necessary to protect human health or the environment or cease work on the Project until such amendment is executed. In the event Consultant continues to work on the Project, Company shall remain liable for payment for any such work. In the event Consultant ceases work on the Project until such amendment is executed, Consultant shall bear no liability for failure to diligently pursue work on the Project in such instance and such cessation shall not be deemed a breach of this Agreement or Consultant’s obligations hereunder. Further, the times set forth herein shall be tolled for each day Consultant ceases work on the Project until such amendment is executed. 6. Consultant [Comment: If Company is to obtain, please revise accordingly.] shall obtain and maintain all permits, licenses or other approvals necessary to perform the Project, and upon request shall furnish copies of the same to Company. 7. Company acknowledges that subsurface or other concealed conditions on, below, or about the work site may vary from those conditions encountered in specific borings, surveys or explorations performed by Consultant and that the information and recommendations developed by Consultant are based solely on the information available from such borings, surveys, and explorations. Consultant shall bear no liability for failure to discover any hazardous substances or conditions on the Premises. 8. Company shall notify Consultant of any known or suspected hazardous substances or conditions on the Premises upon which the Consultant’s Project is to be performed. Consultant shall have the right to rely on the accuracy of such Company-furnished information in its agreement to perform the Project. Such hazardous substances shall include but not be limited to any substance or condition which poses or may pose a present or potential hazard to human health or safety or an adverse impact upon the environment. Thereafter, Consultant shall take all reasonably necessary and appropriate measures to protect its employees, agents and subcontractors against possible hazards to health and safety and to prevent adverse impacts to the environment. At the time of the execution of this Agreement, the following known or suspected hazardous substances or conditions exist upon the Premises: _____ [Instruction: Insert applicable information.] © Copyright 2012 Docstoc Inc. 3 9. If the presence of an unanticipated hazardous substance or condition is discovered during the performance of the Project which could pose a hazard to Consultant’s employees, agents and subcontractors, Consultant shall cease work and determine the necessary health and safety precautions to continue the Scope of Work. The cost of these necessary health and safety precautions shall be a change and shall be managed as set forth herein. 10. If the services to be performed under the Project are to be performed on property controlled by Company, Company hereby grants Consultant and its subcontractors the right to enter from time to time in order for Consultant to fulfill the Project. Company understands that even though Consultant will take reasonable measures to return the property to the condition it was in before Consultant commenced its activities, the use of sampling and exploration equipment may cause some damage which cannot be fully corrected. Company also understands that the discovery of certain hazardous substances and conditions and/or the taking preventive measures relative to these substances and conditions may result in a reduction of the value of the property upon which the substance or condition is found to exist or the preventive measures are taken. Accordingly, Company waives any claim against Consultant and its subcontractors and agrees to defend, indemnify and hold Consultant and its subcontractors harmless from any claim based upon the diminished value of real property allegedly arising from the discovery of a hazardous substance or condition or the taking of a preventive measure, unless such claim is based upon the negligent performance of services under this Agreement. 11. If the Project is to be performed on property controlled by Company, Company shall notify Consultant of the existence of any subterranean structures (pipes, tanks, cables, or other utilities, etc.) and Consultant shall not be liable for damage or injury arising from damage to subterranean structures which are not called to Consultant’s attention. 12. If the Project is to be performed on property which is not controlled by Company, Company agrees to obtain permission from the party controlling the property to Consultant’s entry and the performance of the Project. Unless otherwise specified in this Agreement, it shall be assumed that Company does not know the location of any subterranean structures (pipes, tanks, cables, or other utilities, etc.) and it shall be Consultant’s obligation to ascertain such knowledge. [Comment: If any such structures are known, state here.] 13. Consultant agrees to schedule its activities to minimize interference with the on- going operations and activities of Company or any third party whose property may be the subject of the Project. Consultant shall, and shall cause its subcontractors, to abide by all of Company’s facility rules and regulations regarding the protection of health and safety of employees and third parties, but it shall be Company’s obligation to make such rules and regulations known to the Consultant prior to Consultant commencing work at the Premises. 14. For all services Consultant renders to the Company, the Company will pay Consultant $_____. [Instruction: Insert applicable payment agreement.] Late payments by Company shall be subject to late penalty fees of _____% © Copyright 2012 Docstoc Inc. 4 [Instruction: insert number] per month from the due date until the amount is paid. 15. [Optional: If expenses are to be paid, same should be carefully set forth in this paragraph, including any testing expenses.] Company shall reimburse Consultant for all travel expenses, including but not limited to hotels, meals, etc., in connection with servicing Company’s account. Such reimbursement shall not be limited to the above, and may include special services and charges originated on Company’s behalf by Consultant, incurred in servicing Company’s account. 16. Soil, rock, water and/or other samples obtained pursuant to the Project are the property of Company. Consultant shall preserve such samples for no longer than sixty (60) calendar days after the issuance of any document that includes the data obtained from them, unless other arrangements are mutually agreed upon in writing. Although Company shall be the owner of such samples, Consultant, acting as a bailee and agent of Company, shall arrange for the lawful disposal of all samples. Disposal of contaminated samples shall be at _____. [Instruction: Insert price.] Although Company shall be the owner of all exploration debris, cuttings, pumpings, and borings generated by Consultant during the performance of the Project, Consultant, acting as a bailee and agent of Company, shall arrange for the lawful disposal of all exploration debris, cuttings, pumpings and borings generated during Consultant’s activities. Disposal of contaminated exploration debris shall be at _____ [Instruction: Insert price.]. 17. Consultant shall furnish ________ (_) [Instruction: Insert number of copies.] copies of each report produced in connection with this Agreement (each, a “Report”, collectively, the “Reports”). If paid for, Consultant’s Reports and the documents normally included in such Reports (laboratory results, boring logs, plume maps, etc.) are the property of Company. Consultant may retain a copy for Consultant’s records. All backup documents (field notes, internal calculations and drafts, etc.) shall remain the property of Consultant. However, Consultant shall treat its performance hereunder and all information generated in the performance of this Agreement, whether the property of Company or Consultant, as confidential, and shall not release such information to any governmental agency or third party without the written consent of Company, unless the release of such information is necessary to prevent injury to individuals or the environment, or is required by a lawful court order. Consultant shall not publicize the performance of the Project for Company in any sales brochure, resume of work, or reference list without Company’s written consent. Unless otherwise required by law, Consultant does not assume any obligation to and shall not report the results of its sampling, investigation, or analysis to any governmental authority or third party. Determining the need to report and the report of any hazardous substance or condition discovered as a result of Consultant’s performance shall be the obligation of Company. 18. The Consultant shall obtain and maintain at all times during the term of this Agreement, the following insurance coverages: _____ [Instruction: Insert applicable required insurance coverages.]. © Copyright 2012 Docstoc Inc. 5 19. All of Consultant’s services as set forth in this Agreement shall be performed according to the times set forth, absent any delay by an act or neglect of Company, or by labor disputes, fire, unusual delays in deliveries, unavoidable casualties or other causes beyond the Contractor’s control (including but not limited to acts of God, total or substantial destruction of the Possessions through no fault of Contractor, acts of war, actual or threatened acts of terrorism, insurrection or hostilities, acts of a public enemy, epidemics or quarantines, discovery of known or suspected hazardous substances or conditions or other causes similar to those enumerated) or by delay authorized by Company’s pending mediation or arbitration or by other causes which the Contractor determines may justify delay, then the performance date shall be extended by change order for such reasonable time as Contractor may determine. 20. In the event of a breach hereunder and a failure to cure such breach within thirty (30) days of written notice of such breach, this Agreement may be terminated by either party upon written notice. 21. The provisions of this Agreement are severable, and if any one or more provisions may be determined to be illegal or otherwise unenforceable, in whole or in part, the remaining provisions, and any partially enforceable provision to the extent enforceable in any jurisdiction, shall nevertheless be binding and enforceable. 22. The rights and obligations of the Company under this Agreement shall inure to the benefit of and shall be binding upon the successors and assigns of the Company. The rights, obligations and duties of Consultant hereunder may not be assigned or delegated without the Company's prior written consent except that Consultant may assign its interest to a company formed by Consultant for the purpose of providing such services. 23. The Company and Consultant are independent contractors. Both parties acknowledge and agree that Consultant's engagement hereunder is not exclusive and that either party may provide to, or retain from others similar services to those provided hereunder by Consultant, provided that it does so in a manner that does not otherwise breach this Agreement. Neither party is, nor shall claim to be, a legal agent, representative, partner or employee of the other, and neither shall have the right or authority to contract in the name of the other nor shall it assume or create any obligations, debts, accounts or liabilities for the other. 24. The Consultant represents and warrants to the Company that he/she is under no contractual or other restrictions or obligations which are inconsistent with the execution of this Agreement, or which will interfere with the performance of his/her duties or provision of services hereunder. Consultant represents and warrants that the execution and performance of this Agreement will not violate any policies or procedures of any other person or entity for which he/she performs services concurrently with those performed herein. 25. In performing the services, Consultant shall comply, to the best of his/her knowledge, with all business conduct, regulatory and health and safety guidelines established by the Company for any governmental authority with respect to the Company’s business. © Copyright 2012 Docstoc Inc. 6 26. Consultant represents and warrants that it possesses the training, education, experience, skill, competence, and resources needed to properly perform the Work set forth in this Agreement. Consultant further represents and warrants that the work and services performed by Consultant under this Agreement will be conducted in a manner consistent with that level of care and skill ordinarily exercised by members of the Consultant’s profession currently practicing in the State of _________________. [Instruction: Insert state.] No other representation, warranty, or guarantee, express or implied, is intended. 27. Pursuant to this Agreement, Consultant shall have no right to receive any Company employee benefits including, but not limited to, health and accident insurance, life insurance, sick leave and/or vacation. 28. The Consultant acknowledges and agrees that it shall be solely responsible to pay any and all incomes taxes on any moneys earned from Company while performing services contemplated under this Agreement. The Consultant further acknowledges that the Company will not at any time withhold any taxes from the Company’s payments to the Consultant under this Agreement for the purposes of income tax or any other applicable taxes. 29. Any notices or other communications required or permitted under this Agreement shall be in writing and shall be deemed to have been duly given and delivered when delivered in person, two (2) days after being mailed postage prepaid by certified or registered mail with return receipt requested, or when delivered by overnight delivery service or by facsimile to the recipient at the following address or facsimile number, or to such other address or facsimile number as to which the other party subsequently shall have been notified in writing by such recipient: If to the Company: [Instruction: Insert Company notice information here.] If to the Consultant: [Instruction: Insert Consultant notice information here.] 30. Either party's failure to enforce any provision or provisions of this Agreement shall not in any way be construed as a waiver of any such provision or provisions as to prior or future violations thereof or of any other provision of this Agreement, nor prevent that party thereafter from enforcing each and every other provision of this Agreement. The rights granted the parties herein are cumulative and the waiver by a party of any single remedy shall not constitute a waiver of such party's right to assert all other legal remedies available to him or it under the circumstances. 31. This Agreement will be governed by and interpreted in accordance with the substantive laws of the State of _____ [Instruction: Insert state.] without reference to conflicts of law. [Comment: Parties may wish to consider including alternative dispute resolution provisions.] 32. The various captions and section headings contained in this Agreement are inserted only as a matter of convenience and in no way define, limit or extend the scope or intent of any of the provisions of this Agreement. © Copyright 2012 Docstoc Inc. 7 33. The pronouns used herein shall include, where appropriate, either gender or both, singular and plural. 34. With respect to its subject matter, this Agreement constitutes the entire understanding of the parties superseding all prior agreements, understandings, negotiations and discussions between them whether written or oral, and there are no other understandings, representations, warranties or commitments with respect thereto. 35. This Agreement may be signed in one or more counterparts, each of which when exchanged will be deemed to be an original, binding upon the parties as if a single document had been signed by all, and all of which when taken together will constitute the same agreement. Any true and correct copy of this Agreement made by customary, reliable means (e.g., photocopy or facsimile) shall be treated as an original. 36. No modification to this Agreement, nor any waiver of any rights, will be effective unless assented to in writing by the party to be charged. 37. The person(s) executing this agreement hereby represent and warrant that each respectively has the authority to execute this agreement on behalf of the party for which he is executing. IN WITNESS WHEREOF, the parties have executed this Agreement effective as of the date first written above. _________________________ Consultant _________________________ [Instruction: Insert Company signature block] [Comment: Be sure when executing the document the signature pages also have some portion of the text of the document.] © Copyright 2012 Docstoc Inc. 8
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