Contract analysis

Section 1.1 — Defined Terms As used in this Agreement, the following terms shall have the meanings set forth below: "Agreement" means this Independent Environmental Monitor Agreement, including all Schedules attached hereto and incorporated herein by reference, as the same may be amended from time to time in accordance with Section 10.4. "Bonanza Creek Site" means the Bonanza Creek Gold Mine, located at County Road 4

Section 1.2 — Rules of Construction Terms defined in the Consent Decree and not otherwise defined in this Agreement shall have the meanings set forth in the Consent Decree. Section headings used in this Agreement are for convenience of reference only and shall not affect the interpretation or construction of any provision. The use of the word "including" or "includes" in this Agreement means "including but not limite

ARTICLE II — APPOINTMENT AND INDEPENDENCE OF MONITOR

Section 2.1 — Appointment The Government and TMC hereby jointly appoint Verdant Analytics, Inc. as the Independent Environmental Monitor under Section [__] of the Consent Decree, subject to approval by the Court. The Monitor shall commence the performance of its duties and responsibilities under this Agreement upon the Effective Date. Prior to the Effective Date, the Monitor may undertake preliminary administrative a

Section 2.2 — Independence The Monitor shall at all times act as an independent third party in the performance of its duties and responsibilities under this Agreement. The Monitor is not an agent, employee, or representative of the Government, TMC, or any State Co-Plaintiff, and nothing in this Agreement shall be construed to create any such relationship. The Monitor shall exercise its independent professional judgme

Section 2.3 — Conflicts of Interest Verdant Analytics, Inc. hereby represents and warrants that, as of the date of execution of this Agreement: (a) It has no direct or indirect financial interest in TMC, any of TMC's subsidiaries identified in Recital E, or any entity that has a material business relationship with TMC or its subsidiaries, including any ownership interest, partnership interest, joint venture interest,

Section 2.4 — No Conflicts with Government Technical Expert or TMC Consultant Verdant Analytics, Inc. confirms that it has no existing business, financial, employment, or consulting relationship with Cascade Geosciences, Inc. (the Government's technical expert) or Pinnacle Creek Environmental, LLC (TMC's environmental consultant), and that no principal, officer, or employee of Verdant who will be assigned to perform

ARTICLE III — SCOPE OF DUTIES AND RESPONSIBILITIES

Section 3.1 — General Scope The Monitor shall assess, evaluate, and report on TMC's compliance with all remedial obligations, performance standards, milestone schedules, operating requirements, and other commitments established in the Consent Decree at all four Sites. Without limiting the generality of the foregoing, the Monitor's general scope of duties shall encompass the following areas: (a) Remediation Compliance

Section 3.2 — Quarterly Compliance Audits The Monitor shall conduct quarterly compliance audits commencing within ninety (90) days of the Effective Date and continuing throughout the term of this Agreement. Each quarterly compliance audit shall be comprehensive in scope and shall include the following components: (a) On-Site Inspections. The Monitor shall conduct on-site inspections of each Site during each Quarter.

Section 3.3 — Annual Public Reports The Monitor shall prepare and publish an annual public report summarizing its findings from the quarterly compliance audits conducted during the preceding twelve (12) month reporting period. Each annual public report shall include the following components: (a) A site-by-site compliance status assessment for each of the four Sites, setting forth the Monitor's findings with respect t

Section 3.4 — Special Reports The Monitor may issue special reports at any time during the term of this Agreement upon discovery of any of the following circumstances: (a) A material violation of the Consent Decree by TMC that, in the Monitor's professional judgment, warrants immediate attention by EPA, DOJ, or the Court. (b) An imminent threat to human health or the environment arising from conditions at any of the

Section 3.5 — Site Access and Information Rights (a) Site Access. TMC shall provide the Monitor with unrestricted access to all Sites during normal business hours (8:00 a.m. to 5:00 p.m. local time, Monday through Friday, excluding federal holidays) and at other reasonable times upon forty-eight (48) hours' advance written notice to TMC's General Counsel or designated site contact. In the event of an emergency or a s

Section 3.6 — Monitor Personnel Dr. Kamal Osei shall serve as the Monitor Representative and primary point of contact for all matters arising under this Agreement. Dr. Osei shall be responsible for the overall direction and management of the Monitor's engagement and shall devote such time and resources as are reasonably necessary to fulfill the Monitor's obligations under this Agreement. Verdant may assign additional

Section 3.7 — Coordination with Regulators and TMC Counsel The Monitor shall coordinate with EPA project coordinators and other relevant agency personnel as necessary to fulfill its duties under this Agreement. Specifically, the Monitor shall maintain regular communication with Dr. Samuel Tesfaye (Ridgecrest Site, EPA Region 8), Jennifer Whitfield (Bonanza Creek Site, EPA Region 9), and such EPA Region 3 personnel as

ARTICLE IV — REPORTING PROCEDURES

Section 4.1 — Quarterly Audit Reports The Monitor shall prepare written quarterly audit reports for each Quarter of the engagement. Each quarterly audit report shall be due within forty-five (45) days after the close of the Quarter to which it relates. The quarterly audit report shall be formatted as a written narrative and shall include, at a minimum, the following components: data tables summarizing relevant monito

Section 4.2 — Annual Reports The Monitor shall prepare written annual reports for each twelve (12) month reporting period of the engagement. Each annual report shall be due within ninety (90) days after the close of the twelve-month reporting period to which it relates. Each annual report shall include, at a minimum, an executive summary; detailed site-by-site compliance analyses; compliance ratings for each Site (us

Section 4.3 — TMC Comment Period TMC shall have thirty (30) days from receipt of each draft quarterly or annual report to submit written factual comments, corrections, or supplemental information to the Monitor. TMC's comments shall be limited to factual matters and shall clearly identify the specific findings or statements to which TMC objects, together with the factual basis for any proposed correction. The Monitor

Section 4.4 — Government Comment Period EPA and DOJ shall have thirty (30) days from receipt of each draft quarterly or annual report to submit written comments, requests for additional information, or requests for clarification to the Monitor. The Monitor shall address Government comments in the final report, including by providing additional analyses, clarifications, or supplemental information as appropriate.

Section 4.5 — Record Retention The Monitor shall retain all work papers, sampling data, field notes, photographs, correspondence, invoices, sub-consultant reports, internal memoranda, and final reports generated in connection with the performance of its duties under this Agreement for a period of ten (10) years following the termination of this Agreement, or such longer period as may be required by order of the Court

ARTICLE V — COMPENSATION AND EXPENSES

Section 5.1 — Estimated Total Cost The estimated total cost of the Monitor's engagement over the initial five-year term is four million eight hundred thousand dollars ($4,800,000), or approximately nine hundred sixty thousand dollars ($960,000) per year. This estimate is based on the scope of duties described in Article III and reflects the anticipated level of effort, travel, and sub-consultant support required to f

Section 5.2 — Payment Responsibility TMC shall be solely responsible for the payment of all Monitor fees and expenses incurred in connection with the performance of the Monitor's duties under this Agreement. TMC's obligation to pay Monitor fees and expenses is separate from and in addition to TMC's obligations under the Consent Decree to pay remediation costs (estimated at $343.5 million in nominal terms), civil pena

Section 5.3 — Fee Schedule Verdant's hourly rates for key personnel categories are set forth in Schedule A attached hereto and incorporated herein by reference. The fee schedule includes rates for the Monitor Representative (Dr. Kamal Osei), senior environmental professionals, mid-level environmental professionals, staff analysts, and administrative support personnel. Hourly rates shall be subject to annual adjustmen

Section 5.4 — Invoicing and Payment The Monitor shall submit detailed monthly invoices to TMC, directed to the General Counsel's office at the address specified in Section 10.3, with a concurrent copy to EPA (OECA). Each invoice shall include an itemized description of the services performed during the billing period, the identity and billing rate of each Verdant professional who performed services, the number of hou

Section 5.5 — Budget Oversight The Monitor shall provide EPA and TMC with an annual budget estimate at the beginning of each year of the term, setting forth the anticipated costs for the upcoming year by major cost category (professional fees, travel, sub-consultants, laboratory analysis, administrative overhead, and other expenses). The first annual budget estimate shall be provided within thirty (30) days of the Ef

ARTICLE VI — TERM AND TERMINATION

Section 6.1 — Initial Term This Agreement shall become effective on the Effective Date of the Consent Decree (target: June 14, 2025) and shall continue for an initial term of five (5) years from the Effective Date (i.e., through approximately June 14, 2030), unless earlier terminated or extended as provided in this Article VI. During the initial term, the Monitor shall perform all duties and responsibilities describe

Section 6.2 — Extension The term of this Agreement may be extended beyond the initial five-year term by mutual written agreement of the Government and TMC, or by order of the Court upon motion of any Party. Extension of the term may be sought by the Government if remediation activities are not substantially completed at any Site upon expiration of the initial term, or if the Government determines that continued monit

Section 6.3 — Early Termination The Government or TMC may seek early termination of the Monitor's appointment by motion to the Court upon a showing that monitoring is no longer necessary. Grounds for early termination include, without limitation, a determination by EPA that all Sites have achieved the completion criteria specified in the Consent Decree and that EPA has issued a certification of completion for each Si

Section 6.4 — Survival The following obligations shall survive the termination or expiration of this Agreement: the record retention obligations set forth in Section 4.5; the confidentiality obligations set forth in Article VII; the indemnification obligations set forth in Article IX; and any other obligations that, by their nature, are intended to survive termination. Survival of these obligations shall continue for

ARTICLE VII — CONFIDENTIALITY AND PRIVILEGE

Section 7.1 — Confidential Business Information TMC may designate certain information provided to the Monitor as confidential business information ("CBI") in accordance with the procedures and standards set forth in EPA's CBI regulations at 40 C.F.R. Part 2, Subpart B. Any information so designated shall be clearly marked as "CONFIDENTIAL BUSINESS INFORMATION" at the time of its disclosure to the Monitor. The Monitor

Section 7.2 — No Attorney-Client Privilege Communications between the Monitor and TMC, TMC's counsel (including Calderwood & Harkness LLP, Holcroft, Dane & Weiss LLP, sagebrush Law Group, PLLC, and Baxter, Tully & Crane PLLC), or TMC's environmental consultant (Pinnacle Creek Environmental, LLC) are not protected by the attorney-client privilege, the work-product doctrine, or any other legal privilege. TMC is advised

Section 7.3 — Monitor's Work Product The Monitor's reports, work papers, analyses, data compilations, correspondence, and other materials generated in the course of performing its duties under this Agreement are the property of the Monitor and shall be made available to all Parties and the Court as provided in this Agreement. The Monitor's opinions, conclusions, and recommendations are the independent professional ju

ARTICLE VIII — DISPUTE RESOLUTION

Section 8.1 — Disputes Under This Agreement Any dispute arising under or relating to this Agreement shall be resolved through the three-tier dispute resolution mechanism established in the Consent Decree, as follows: (a) Informal Negotiation. The disputing Parties shall first attempt to resolve the dispute through informal negotiation conducted in good faith for a period of thirty (30) days following written notice o

Section 8.2 — Monitor's Role in Disputes The Monitor shall not be a party to disputes between the Government and TMC arising under the Consent Decree, and the Monitor shall not advocate for the position of any Party in any such dispute. However, if a dispute under this Agreement or the Consent Decree involves the Monitor's conduct, findings, or recommendations, the Monitor may participate in the informal negotiation

ARTICLE IX — INDEMNIFICATION AND LIABILITY

Section 9.1 — TMC Indemnification of Monitor TMC shall indemnify, defend, and hold harmless the Monitor, including Verdant Analytics, Inc. and its officers, directors, employees, agents, and approved sub-consultants, from and against any and all claims, demands, causes of action, liabilities, losses, damages, costs, and expenses (including reasonable attorneys' fees and litigation costs) arising out of or relating to

Section 9.2 — Limitation of Monitor's Liability The Monitor's aggregate liability under this Agreement for all claims, damages, losses, costs, and expenses of every kind and description, other than claims arising from the Monitor's gross negligence, willful misconduct, or fraud, shall not exceed the total fees actually paid to the Monitor under this Agreement as of the date on which the relevant claim accrues. This l

Section 9.3 — Insurance The Monitor shall maintain, at its own expense, professional liability (errors and omissions) insurance with a per-claim limit of not less than five million dollars ($5,000,000) and an aggregate limit of not less than ten million dollars ($10,000,000) throughout the term of this Agreement, including any extensions thereof. The insurance policy shall be issued by a carrier rated not less than "

ARTICLE X — GENERAL PROVISIONS

Section 10.1 — Governing Law This Agreement shall be governed by and construed in accordance with applicable federal law, including the Clean Water Act, 33 U.S.C. §§ 1251 et seq.; the Resource Conservation and Recovery Act, 42 U.S.C. §§ 6901 et seq.; the Comprehensive Environmental Response, Compensation, and Liability Act, 42 U.S.C. §§ 9601 et seq.; and the terms and provisions of the Consent Decree. To the extent t

Section 10.2 — Jurisdiction and Venue The Parties irrevocably consent to the exclusive jurisdiction of the United States District Court for the District of Montana, Missoula Division, Civil Action No. 9:24-cv-00087-DWM, for the resolution of any and all disputes arising under or relating to this Agreement. The Honorable Donald W. Molloy, Senior United States District Judge (by designation), shall retain jurisdiction