Terms & Conditons
The following General Terms and Conditions are applicable to Agreements between BlackRock Environmental, LLC. (hereinafter “Consultant”) and (hereinafter Client), when attached to and made part of such Agreement or Proposals by reference. These General Terms and Conditions along with the Proposal (as well as any supplemental Proposal(s)) shall together be sometimes referred to as the “Agreement”.
The Proposal is valid for sixty (60) days, unless an alternate time frame is requested by the Client prior to completion of the Proposal and is stipulated in the Proposal as such. If after sixty (60) days the Proposal is not executed, Consultant reserves the right to adjust the Proposal to reflect changes in regulatory requirements, industry standards, technological advancement, price, scope, workload, and schedule.
Acceptance of Agreement
This Agreement’s General Terms and Conditions, of which this provision is a part, have been established in large measure to allocate certain risks between Client and Consultant, and Consultant will not initiate service without formal agreement of the General Terms and Conditions set forth in this Agreement. For purposes of convenience, Client may choose to accept this Agreement orally or to orally authorize Consultant to initiate services. In that event, Client specifically agrees that, as a material element of the consideration Consultant requires to execute the services indicated herein, oral acceptance or authorization to initiate services shall be considered by both parties to constitute formal acceptance of all General Terms and Conditions of this Agreement. Unilateral modification of this Agreement subsequent to Consultant’s initiation of service is expressly prohibited. Furthermore, all preprinted terms and conditions on Client’s purchase order acknowledgement forms are inapplicable to this Agreement and Consultant’s involvement in Client’s project.
Invoices, Reimbursable Expenses, Escalation of Fees
Terms for payment are net thirty (30) days from the date of Consultant’s invoice. Invoices not paid within thirty (30) days will incur a monthly interest charge of one and one-half percent (1.5%) on the balance of the invoice at the discretion of Consultant. Consultant, after giving seven (7) days written notice, may suspend services under any Agreement until all past due accounts, including applicable interest, have been paid. Additional time spent by Consultant for the collection of delinquent invoices will be billed at Consultant’s standard rates in accordance with Consultant’s Prevailing Fee Schedule. All legal costs, which may be incurred by Consultant for the collection of delinquent invoices, including reasonable attorney fees, court filing charges, and time spent preparing for such legal action, will be the responsibility of the Client.
If method for Consultant’s services is billed on a time-and-material or cost reimbursable basis, there shall be charged a minimum of two (2) hours for all fieldwork and one-quarter (1/4) hour for all office work (which shall include phone consultations). Were applicable, charges will be imposed for equipment and vehicle rental, instrumentation or technical equipment. Consultant will use its best efforts to advise Client in advance when such charges are applicable.
Unless otherwise specified in the Proposal, expenses properly chargeable to the Project shall include: travel and living expenses of personnel when away from their home office; shipping and reproduction costs; computer and record processing time and software; professional and technical subcontractors, advisors, and counsel retained in connection with the Project; and supplies and materials. A twenty (20%) percent handling and administrative charge will be added to all the above Project expenses. If the services covered by any Consultant Proposal are subject to local or state taxes or fees, such additional costs will be charged to the Project and reimbursed by the Client. Client will be billed either monthly or upon the completion of each Task (as same is defined in the Proposal).
Maintenance of Professional Standards and Ethics
The Client recognizes that Consultant’s services in all cases must be rendered in accordance with prevailing professional standards and ethics. Services performed by Consultant under this Agreement will be conducted in a manner consistent with the level of care and skill standard to the industry under similar conditions. NO OTHER WARRANTY EXPRESSED OR IMPLIED IS MADE. If a situation emerges that causes Consultant to believe compliance with the Client’s wishes could result in Consultant violating an applicable provision or aspect of professional standards, or ethics, laws of regulations, Consultant shall so advise the Client. The Client and Consultant shall immediately enter into discussions to arrive at a mutually satisfactory solution. Failing achievement of a solution, either party may terminate this Agreement in accordance with the termination provisions stated herein.
Compliance with Codes and Standards
Consultant shall exercise due and reasonable care in observing those federal, state and local codes, standards, statutes, and regulations applicable at the time Consultant prepared the scope of services included in this Agreement. In the event that Consultant becomes aware of any changes in such standards, statutes, or regulations, and if Consultant believes such changes affect Consultant’s services, Consultant shall inform Client of such changes and the impact abiding by them may have on services already performed or to be performed, the fees and costs involved, and scheduling. If either Client or Consultant believes a change requires renegotiations of this Agreement both Client and Consultant shall bargain promptly and in good faith. If a renegotiated Agreement cannot be developed, Client shall give Consultant the right to terminate this Agreement without penalty. In any event, Client shall, to the fullest extent permitted by law, waive any claim against Consultant, and indemnify, defend, and hold Consultant harmless from any claim or liability for injury or loss arising from Consultant’s alleged failure to abide by federal, state or local codes, standards, statutes, or regulations that were not in effect or publicly announced at the time Consultant otherwise would have incorporated their intent into Consultant’s services. Client shall also compensate Consultant for any time spent and expenses incurred by Consultant in defense of any such claim. Such compensation shall be based upon Consultant’s prevailing fee schedule and expense reimbursement policy. The term "any claim" used in this provision means "any claim in contract, tort, or statute alleging negligence, errors, omissions, strict liability, statutory liability, breach of contract, breach of warranty, negligent misrepresentation, or other acts giving rise to liability."
Escalation of Fees
The Proposal includes Consultant’s estimate of the charges required to complete the Project, as defined in the Proposal. Projects such as those involving process development work, planning work, or environmental impact assessment, are activities often initially not fully definable. As the Project progresses, conditions may be discovered, which may alter the scope of the project. If during the course of performance of this Agreement, conditions are discovered, which were not contemplated by Consultant at the commencement of this agreement, Consultant shall notify the Client of the newly discovered conditions, and the Client and Consultant shall renegotiate, in good faith, the terms and conditions of this agreement. If amended terms and conditions cannot be agreed upon within thirty (30) days after notice, Consultant may terminate this agreement and be compensated as set forth herein.
Fees and schedule commitments are subject to renegotiations for unreasonable delay caused by Client’s failure to provide specified facilities or information, or for delays caused by unpredictable occurrences, or force majoure, such as fires, floods, strikes, riots, unavailability of labor or materials or services, acts of God or of public enemy, or acts or regulations of any governmental agency. Temporary work stoppage caused by any of the above may result in additional costs (reflecting a change in scope) beyond that outlined in the proposed Agreement.
Discovery of Unanticipated Hazardous Materials and Contaminated Substances
Hazardous materials or certain contaminated substances (including, but not limited to, petroleum products), may exist where there is no reason to believe they are present. Should Consultant discover such unanticipated hazardous materials or contaminated substances, or suspected hazardous materials or contaminated substances, Consultant shall notify Client as soon as practically possible. Client and Consultant agree that the discovery of unanticipated hazardous materials or contaminated substances constitutes a changed condition mandating a renegotiation or termination of this Agreement.
Client and Consultant agree that, upon discovery of unanticipated hazardous materials or contaminated substances, or suspected hazardous materials or contaminated substances, Consultant should take those measures that in Consultant’s opinion are necessary to preserve and protect public health, safety, and welfare and the environment. Client agrees to compensate for such services given that the hazardous materials or contaminated substances, or suspected hazardous materials or contaminated substances in question are Client’s responsibility at fees that are five percent over cost and overhead. In addition, Client shall, to the fullest extent permitted by law, indemnify, defend, and hold Consultant harmless from any claim or liability for injury or loss arising from Consultant’s discovery of hazardous materials or contaminated substances, or suspected hazardous materials or contaminated substances, or their presence. Client also shall compensate Consultant for any time spent or expenses incurred by Consultant in defense of any such claim (the term "any claim" means "any claim in contract, tort or statute alleging negligence, errors, omissions, strict liability, statuary liability, breach of contract, breach of warranty, negligent misrepresentation or other acts giving rise to liability"). Such compensation shall be based upon Consultant’s prevailing fee schedule and expense reimbursement policy.
Buried Utilities
Client will furnish to Consultant information identifying the type and location of utility lines and other man-made objects beneath the site’s surface. Consultant will take reasonable precautions to avoid damaging these man-made objects by preparing, prior to penetrating the site’s surface, a subsurface sketch indicating the locations intended for penetrations and, as per information provided to Consultant, the locations of buried utility lines and other buried man-made objects. Client will review the sketch and approve the intended penetration locations before penetrations are made. In addition, Client shall, to the fullest extent permitted by law, waive any claim against Consultant, and indemnify, defend, and hold Consultant harmless from any claim of liability for injury or loss arising from damage to or contact with buried utility lines of other buried man-made objects that were not called to Consultant’s attention or which were not properly located on drawings furnished to Consultant. Client shall also compensate Consultant for any time spent and expenses incurred by Consultant in defense of any such claim (the term "any claim" means "any claim in contract, tort, or statute alleging negligence, errors, omissions, strict liability, statutory liability, breach of contract, breach of warranty, negligent misrepresentation, or other acts giving rise to liability.") Such compensation shall be based upon Consultant’s prevailing fee schedule and expense reimbursement policy.
Disposal of Contaminated Substances (including samples)
All substances on, in, or under Client’s site, or obtained from Client’s site as samples or as byproducts of the sampling process, are Client’s property. Unless Client directs otherwise, Consultant shall dispose of all nonhazardous samples and sampling process byproducts in accordance with applicable law. Unless other arrangements are mutually agreed upon in writing, or unless otherwise required, Consultant shall preserve samples for no longer than fifteen (15) calendar days after Consultant’s issuance to the Client of the initial instrument of service that relates data obtained from them. If in Consultant’s opinion any of these samples are or may be affected by a regulated contaminant, Consultant shall package such samples in accordance with applicable law, and Client shall arrange for lawful disposal procedures, that is, procedures to remove the samples from Consultant’s custody and transport them to a disposal site. However, any samples or sampling process byproducts that are or are assumed to be affected by regulated contaminants shall be packaged by Consultant in accordance with applicable law, and they shall be turned over to Client. Consultant shall not under this Agreement arrange for or otherwise dispose of substances affected by regulated contaminants. Consultant will, at Client’s request, help Client identify appropriate alternatives for off-site treatment, storage, or disposal of such substances, but Consultant shall not make any independent determination about the selection of a treatment, storage or disposal facility, nor will Consultant subcontract such activities through transporters or others. Client shall sign all manifests for the disposal of substances affected by regulated contaminants. However, if Client directs Consultant, Consultant’s employees, or Consultant’s agent to sign such manifests and/or to hire for Client a contractor to transport, treat, or dispose of the contaminated substances (notwithstanding any other provision of this Agreement to the contrary) the Consultant shall not be considered a generator, transporter, or disposer of materials affected by regulated contaminants. Because involvement with Client’s contaminated samples can expose Consultant to sever risks, Client shall, to the fullest extent permitted by law, waive any claim against Consultant, and indemnify, defend, and hold Consultant harmless from any claim or liability for injury or loss allegedly arising from Consultant’s containing, labeling, transporting, testing, storing, or other handling of Client’s contaminated samples. Client also shall compensate Consultant for any time spent or expenses incurred by Consultant in defense of any such claim (the term "any claim" means "any claim in contract, tort or statute alleging negligence, errors, omissions, strict liability, statuary liability, breach of contract, breach of warranty, negligent misrepresentation or other acts giving rise to liability"). Such compensation shall be based upon Consultant’s prevailing fee schedule and expense reimbursement policy.
Aquifer Cross-Contamination
Sampling may result in unavoidable cross-contamination of certain subsurface areas, as when a probe or boring devise moves through a contaminated zone and links it to an aquifer, underground stream, or other hydrous body not previously contaminated. Because Consultant is powerless to totally eliminate the risk despite use of due care, and because sampling is an essential element of Consultant’s services indicated herein, Client shall, to the fullest extent permitted by law, waive any claim against Consultant, and indemnify, defend, and hold Consultant harmless from any claim or liability for injury or loss arising from cross-contamination allegedly caused by Consultants sampling. Client shall also compensate Consultant for any time spent and expenses incurred by Consultant in defense of any such claim (the term "any claim" means "any claim in contract, tort or statute alleging negligence, errors, omissions, strict liability, statuary liability, breach of contract, breach of warranty, negligent misrepresentation or other acts giving rise to liability"). Such compensation shall be based upon Consultant’s prevailing fee schedule and expense reimbursement policy.
Vapor Intrusion
Vapor intrusion is the migration of volatile chemicals from the subsurface into overlying buildings. Volatile chemicals in buried wastes, contaminated soils and/or contaminated groundwater can emit vapors that may migrate through subsurface solids and into air spaces of overlying buildings. In extreme cases, the vapors may accumulate in dwellings or occupied buildings to levels that may pose near-term safety hazards, acute and/or chronic health effects or aesthetic problems. Vapor intrusion is a rapidly developing field of science and policy. Client shall waive any claim against Consultant, and shall, to the fullest extent permitted by law, indemnify, defend, and hold Consultant harmless from any claim or liability for injury or loss arising from vapor intrusion. Client shall also compensate Consultant for any time spent and expenses incurred by Consultant in defense of any such claim (the term "any claim" means "any claim in contract, tort or statute alleging negligence, errors, omissions, strict liability, statuary liability, breach of contract, breach of warranty, negligent misrepresentation or other acts giving rise to liability"). Such compensation shall be based upon Consultant’s prevailing fee schedule and expense reimbursement policy.
Client’s Responsibilities
The Client shall provide all criteria and full information as to Client’s requirements for the project; designate any persons to act with authority of Client; examine and respond promptly to Consultant’s submissions; and give prompt written notice to Consultant whenever a defect in work has been noted. The Client will provide for the right of entry to allow Consultant to complete the work. While Consultant will take reasonable precautions to minimize any damage to the site, it is understood by Client that in the normal course of work some damage may occur, the correction of which is not part of this agreement. The Client shall be responsible for payment of all fees in connection with this project.
Alteration of Instruments of Service
Client agrees that designs, plans, specifications, reports, proposals and similar documents prepared by Consultant are instruments of professional service and, as such, no matter who owns or uses them, they may not under any circumstances be altered by any party except Consultant. Client warrants that Consultant’s instruments of service will be used only and exactly as submitted by Consultant. Accordingly, Client shall waive any claim against Consultant, and shall, to the fullest extent permitted by law, indemnify, defend, and hold Consultant harmless from any claim or liability for injury or loss arising from unauthorized alteration of Consultant’s instruments of service. Client also shall compensate Consultant for any time spent or expenses incurred by Consultant in defense of any such claim (the term "any claim" means "any claim in contract, tort or statute alleging negligence, errors, omissions, strict liability, statuary liability, breach of contract, breach of warranty, negligent misrepresentation or other acts giving rise to liability"). Such compensation shall be based upon Consultant’s prevailing fee schedule and expense reimbursement policy.
Insurance
Consultant represents and warrants that it now has in full effect and will maintain the following insurances for the duration of this project: Worker’s Compensation, General Liability, Automotive Liability, Professional Liability, and Pollution Liability. Consultant will furnish to the Client certificates of insurance upon request.
Indemnification and Limitation of Liability
Application of the joint and several liability concept could result in Consultant becoming wholly liable for damages created directly or indirectly by regulated contaminants. Client agrees that exposing Consultant to such a liability would be unfair, because Consultant had nothing whatsoever to do with creation of the hazardous conditions. Accordingly, Client shall, to the fullest extent permitted by law, indemnify, defend, and hold Consultant harmless from any claim or liability for injury or loss arising from Consultant being considered liable for creating a hazardous materials or contaminated substance condition, or permitting one to exist, as a consequence of application of a joint and several liability concept. Client also shall compensate Consultant for any time spent or expenses incurred by Consultant in defense of any such claim (the term "any claim" means "any claim in contract, tort or statute alleging negligence, errors, omissions, strict liability, statuary liability, breach of contract, breach of warranty, negligent misrepresentation or other acts giving rise to liability"). Such compensation shall be based upon Consultant’s prevailing fee schedule and expense reimbursement policy.
The Client agrees that Consultant’s total aggregate liability to the Client and to all other parties associated with the project or its use, due to Consultant professional negligent acts, errors omissions, shall not exceed Consultant’s total fee for services rendered on the project.
The Client shall make no claim for professional negligence, either directly or in a third-party claim against Consultant unless the Client has first provided Consultant with a written certification executed by an independent design professional currently practicing in the same discipline as Consultant. The certification shall: a) identify the name of the professional; b) specify each and every act or omission that the certifier contends is a violation of the standard of care identified in this Agreement; c) state in complete detail the basis for the certifier’s opinion that each such act or omission constitutes such a violation. This certificate shall be provided to Consultant not less than thirty (30) calendar days prior to the presentation of any claim or the institution of any arbitration or judicial proceeding.
Disputes
In the event that a dispute should arise relating to the performance of the services to be provided under this Agreement, and should that dispute result in litigation in which Consultant prevails, it is agreed that Consultant shall be entitled to recover all reasonable costs incurred as a result of the claim, including staff time, court costs, attorney’s fees and other claim-related expenses. Not withstanding the foregoing, Consultant shall have the right to submit any controversy or claim arising out of or relating to this Agreement, or the breach thereof, to binding arbitration administered by the American Arbitration Association in accordance with the Construction Industry Arbitration Rules, and judgment on the award rendered by the arbitrator(s) may be entered in any court having jurisdiction thereof.
Consequential Damages
Client shall not be liable to Consultant and Consultant shall not be liable to Client for any consequential damages incurred by either party due to the fault of the other, regardless of: the nature of this fault; or whether it was committed by Client or Consultant, their employees, agents, or subcontractors; or whether such liability arises in breach of contract or warranty, tort (including negligence), statute, or any other cause of action. Consequential damages include, but are not limited to, loss of use and loss of profit.
Confidentiality
Consultant agrees to keep confidential and to not disclose to any person or entity (other than Consultant’s employees and subcontractors), without the prior consent of Client, all data and information not previously known to and generated by Consultant, or furnished to Consultant and marked "Confidential" by Client; provided, however, that these provisions shall not apply to data that: are in the public domain; were previously known to Consultant; or were independently acquired by Consultant from third-parties under no obligation to Client to keep said data and information confidential. These provisions shall not apply to information in whatever form that comes into the public domain through no fault of Consultant, nor shall they be interpreted to in any way restrict Consultant from complying with a legally enforceable order to provide information or data. Client agrees the Consultant may use and publish Client’s name and a general description of Consultant’s services with respect to the project in describing Consultant’s experience and qualifications to others. Client also agrees that any patentable or copyrightable concepts developed by Consultant in the course of Consultant’s services hereunder are the sole and exclusive property of Consultant.
Failure to Follow Recommendations
Consultant disclaims any and all responsibility and liability for problems that may occur during implementation of Consultant’s plans, specifications, or recommendations when Consultant is not retained to observe such implementation.
Defects in Service
Client and Client’s personnel and contractors shall promptly inform Consultant of any actual or suspected defects in Consultant’s services, to help Consultant take those prompt and effective measures that in Consultant’s opinion will help minimize the consequences of any such defect. Client’s payment in full amount owed for services rendered shall be taken to mean that Client is satisfied with Consultant’s services and is unaware of any defect.
Ownership of Instruments of Service
Plans, specifications, reports, boring logs, calculations, field data, field notes, laboratory test data, estimates, electronic media files, magnetic tapes (drives), and similar paper and electronic media (other than samples) prepared by or for Consultant as instruments of service are Consultant’s property. Consultant shall retain these instruments of service for five years following submission of project deliverables, during which period Consultant’s instruments of service will be made available for Client’s review at any reasonable time.
Termination
This Agreement may be terminated by either party upon ten (10) calendar days written notice in the event of substantial failure by the other party to perform in accordance with the terms of this Agreement. Such termination shall not be effective if the substantial failure has been remedied before expiration of the period specified in the written notice. In the event of termination, Consultant shall be paid for services performed to the termination notice date plus reasonable termination expenses. The expenses shall include any fees incurred by Consultant from the laboratory prior to receipt of a termination notice date.
Governing Law
Unless otherwise provided, the substantive law of the Commonwealth of Pennsylvania, Northampton County, will govern the validity of this Agreement, its interpretation and performance, and remedies for contract breach or any other claims related to this Agreement.
Assigns
The Client may not delegate, assign, sublet or transfer his duties, obligations or interests in this Agreement without the written consent of Consultant.