ROCKLAND COUNTY SOLID WASTE MANAGEMENT AUTHORITY · Operation Maintenance and Marketing of the...

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ROCKLAND COUNTY SOLID WASTE MANAGEMENT AUTHORITY 172 Main Street Nanuet, NY 10954 tel 845 753-2200 fax 845-753-2281

RFP 2020-02

REQUEST FOR PROPOSALS

FOR

THE OPERATION, MAINTENANCE AND MARKETING

OF THE ROCKLAND COUNTY SOLID WASTE MANAGEMENT AUTHORITY’S

CONCRETE AND ASPHALT CRUSHING OPERATION

AND

THE BULK PURCHASE OF PRODUCT

DATED FEBRUARY 28, 2020

TO: RECIPIENTS OF THE REQUEST FOR PROPOSALS

FROM: ROCKLAND COUNTY SOLID WASTE MANAGEMENT AUTHORITY

DATE: MARCH 25, 2020

SUBJECT: ADDENDUM NUMBER 1

This Addendum Number 1 shall be part of the Request for Proposals No. 2020-02 for

Operation Maintenance and Marketing of the Rockland County Solid Waste Management Authority’s

(the “Authority”) Concrete and Asphalt Crushing Operation and the Bulk Purchase of Product dated

February 28, 2020 (the “RFP”). This Addendum Number 1 provides (1) modifications to the RFP,

and (2) Appendices I and K to the RFP.

I. MODIFICATIONS TO THE RFP

The RFP shall be hereby modified as follows. (Deleted provisions are reflected as stricken text and

added provisions are reflected as bold, double-underscored text.)

1. Quantities of RCA Product to Be Purchased by the Bulk Purchase Contractor.

During the term of the Bulk Purchase Contract, the Authority shall have the right to modify the tonnage

of RCA Product to be purchased by the Bulk Purchase Contractor. The Authority will exercise its

option to increase (or decrease) the quantity of RCA Product to be purchased by the Bulk Purchase

Contractor in any Contract Year upon 30 days’ prior written notice to the Bulk Purchase Contractor.

As such, the Authority may increase the quantity of RCA Product to be purchased by the Bulk Purchase

Contractor from 10,000 Tons in a Contract Year to up to 30,000 Tons in a Contract Year. Regardless

of any such election by the Authority, the Bulk Purchase Price will remain the per Ton pricing proposed

by the Bulk Purchase Contractor on Price Proposal Form 2.

Howard T. Phillips, Jr. Chairman

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In accordance with this modification, the following provisions of the RFP are hereby amended:

Definitions Section, page 3

“Bulk Purchase Agreement” means the agreement between the

Authority and the Bulk Purchase Contractor, together with all appendices

and amendments thereto, if any, for the purchase by the Bulk Purchase

Contractor of up to ten thousand (10,000) Tons of RCA Product (or such

other amount, up to 30,000 Tons, designated by the Authority) produced pursuant to the Agreement, and under which the Bulk Purchase

Contractor guarantees that such Product shall be put to Beneficial Use.

…

“Bulk Purchase Price” means the price per Ton that the Bulk Purchase

Contractor will pay to the Authority for up to ten thousand (10,000) each

Tons of RCA Product purchased under the Bulk Purchase Agreement.

Section 1. INTRODUCTION/BACKGROUND AND GENERAL INFORMATION, Item 2,

page 13

(2) A separate contract (the “Bulk Purchase Agreement”) for the

annual purchase of up to ten thousand (10,000) Tons of RCA Product (or

such other amount designated by the Authority up to 30,000 Tons), by

a Bulk Purchase Contractor.

Section 1.2. Objective of Procurement, 1st paragraph and 3rd paragraph, pages 14 and 15

1st paragraph

The main objective of this RFP is to secure proposals from qualified

contractors and enter into (1) an Operation and Maintenance Agreement

to operate and maintain the Operation, and Market Product (less Product

purchased by the Bulk Purchase Contractor), and (2) a Bulk Purchase

Agreement for the purchase by the Bulk Purchase Contractor of up to ten

thousand (10,000) Tons of RCA Product (or such other amount, up to

30,000 Tons, so designated by the Authority) on an annual basis, with a

guarantee that such Product shall be put to Beneficial Use.

…

3rd paragraph

The Authority is also seeking a Bulk Purchase Contractor who is

committed to purchasing up to ten thousand (10,000) Tons of RCA

Product (or such other amount, up to 30,000 Tons, so designated by

the Authority) on an annual basis and guaranteeing that such Product will

be put to Beneficial Use.

Section 2. SCOPE OF SERVICES AND RESPONSIBILITIES, paragraph immediately

following item 5, pages 25 to 26

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The comprehensive scope of services to be undertaken through this

procurement includes all services related to operation and maintenance of

the Operation, including acceptance and storage of Acceptable Materials,

Crushing and Screening, production of marketable Product, Product

storage, marketing of Product (less the RCA Product purchased by the

Bulk Purchase Contractor) and loading, and shipment of Product to

markets; as well as the purchase by the Bulk Purchase Contractor of up to

ten thousand (10,000) Tons of RCA Product (or such other amount, up

to 30,000 Tons, so designated by the Authority) on an annual basis.

Section 2.1. Contractor’s Responsibilities, Item 1 under the subheading Bulk Purchase

Contractor, page 29

Bulk Purchase Contractor. The Bulk Purchase Contractor’s

responsibilities shall include, but are not limited to, those responsibilities

listed below.

1. Notifying the Authority when the Bulk Purchase

Contractor seeks to purchase RCA Product from the Authority, as

well as the type(s) of RCA Product and quantities it seeks to

purchase at that time. The Authority will thereafter notify the

Bulk Purchase Contractor when such RCA Product is available for

purchase. Within fifteen (15) days following confirmation from

the Authority that such RCA is available for purchase by the Bulk

Purchase Contractor, the Bulk Purchase Contractor shall purchase

and remove such RCA Product from the Operation; provided,

however, that the Bulk Purchase Contractor shall purchase and

remove the RCA Product from the Operation sooner if required

for the Authority to comply with the Permit limits and

requirements. The above notwithstanding, the Bulk Purchase

Contractor shall purchase up to ten thousand (10,000) Tons of

RCA Product (or such other amount so designated by the

Authority, up to 30,000 Tons) in any Contract Year.

Section 7.4. Bulk Purchase Price, page 56

The Proposer shall propose a Bulk Purchase Price for the bulk purchase

of up to ten thousand (10,000) Tons of Recycled Concrete Aggregate

Product (10,000 Tons annually, or such other amount so designated by

the Authority up to 30,000 Tons annually). The Bulk Purchase Price

shall be the price accepted by the Authority for the bulk purchase of up to

ten thousand (10,000) Tons of Recycled Concrete Aggregate Product

purchased by the Bulk Purchase Contractor and shall be paid on a dollar

per Ton basis.

2. Definition of “Cost Substantiation” or “Cost Substantiated”. The definition of “Cost

Substantiation” or “Cost Substantiated” is hereby modified to eliminate allowances for profit and

overhead.

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Definitions, page 5

“Cost Substantiation” or “Cost Substantiated” means, with respect to

any cost proposed or reasonably incurred or to be incurred by the

Contractor which is authorized and is directly or indirectly chargeable in

whole or in part to the Authority, delivery to the Authority of a certificate

signed by an authorized officer of the Contractor, stating that such cost is

a fair market price for the service or materials supplied or to be supplied

and that such services and materials are reasonably required, or, if there is

no market (including costs related to emergency actions and other

additional work necessitated or additional costs to be borne on account of

Uncontrollable Circumstances, Authority Fault or Authority direction)

shall be a commercially reasonable price and accompanied by copies of

such documentation, as shall be necessary, to reasonably demonstrate that

the cost as to which Cost Substantiation is required has been or will be

paid or incurred. Such documentation shall include reasonably detailed

information concerning (1) all Subcontracts, (2) the amount and character

of materials furnished, the persons from whom purchased, the amounts

payable therefore and related delivery and transportation costs, and any

sales or personal property taxes, (3) a statement of the equipment used and

any rental payable therefore, (4) Contractor and Subcontractor worker

hours, duties, wages, salaries, benefits, assessments, taxes, and premiums,

and (5) Contractor and Subcontractor profit and overhead (as applicable),

administration, bonds, insurance, and other expenses.

3. Security for Performance Under the Bulk Purchase Agreement. The RFP is amended to reflect that the Bulk Purchase Contractor will be required to provide a

Performance Bond as security for performance under the Bulk Purchase Agreement. Under Section

8.3 the Bulk Purchase Contractor will be required to provide a Performance Bond in an amount equal

to the then current Bulk Purchase Price times the number of Tons to be purchased by the Bulk Purchase

Contractor during the current Contract Year.

I. APPENDICES I AND K – DRAFT AGREEMENTS

The draft Concrete and Asphalt Crushing Operation Operating and Maintenance Agreement (the

“Operation and Maintenance Agreement”) and the draft Bulk Purchase Agreement (the “Bulk Purchase

Agreement”) are each included herein as part of this Addendum 1. The Operation and Maintenance

Agreement will be the definitive statement of mutual responsibilities and liabilities of the Authority and the

Contractor in connection with the operation, maintenance and marketing services for the Operation. The

Bulk Purchase Agreement will be the definitive statement of mutual responsibilities and liabilities of the

Authority and the Bulk Purchase Contractor in connection with the bulk purchase of RCA Product sold

thereunder.

Each agreement is being provided in draft form, and as such, the Authority reserves the right in its

sole discretion to make any and all changes thereto. In the event of a conflict between either agreement

and other sections of the RFP, the provision most favorable to the Authority will govern.

In its Proposal, each Proposer must review and provide a markup of the two agreements. To the

extent that any Proposer wishes to modify (or amplify) any provision of either agreement, the specific text

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of the proposed modification must either be clearly marked on the applicable document or appended to the

applicable document in clearly typed riders. Each Proposer shall include in its proposal all comments to

the draft Operation and Maintenance Agreement and the draft Bulk Purchase Agreement, as applicable, as

well as the related transaction forms, as subsequent comments will NOT be considered by the Authority.

Although modifications to each of the draft agreements (and related transaction forms) are acceptable, the

extent of a Proposer’s deviation from such terms shall be considered as an evaluation criterion as set forth

in the RFP.

The draft Operation and Maintenance Agreement for inclusion in Appendix I of the RFP is provided

herein as Attachment 1.

The draft Bulk Purchase Agreement for inclusion in Appendix K of the RFP is provided herein as

Attachment 2.

Proposers are hereby advised that the draft agreements are independent of one another and that the

pricing proposed relative to each agreement must be independent and unrelated to the pricing proposed for

the other agreement.

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ATTACHMENT 1

DRAFT CONCRETE AND ASPHALT CRUSHING OPERATION

OPERATING AND MAINTENANCE AGREEMENT

Request for Proposals 2020-02, Addendum 1

Operation, Maintenance and Marketing of the Rockland County Solid Waste Management Authority’s

Concrete and Asphalt Crushing Operation and the Bulk Purchase of Product

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1

CONCRETE AND ASPHALT CRUSHING OPERATION

OPERATING AND MAINTENANCE AGREEMENT

Between

ROCKLAND COUNTY SOLID WASTE MANAGEMENT AUTHORITY

and

[ ]

Dated as of [ ] [_], 2020




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TABLE OF CONTENTS

Page

ARTICLE I. DEFINITIONS, INTERPRETATION AND TRANSITION PERIOD .............2 SECTION 1.1 DEFINITIONS ..........................................................................................2 SECTION 1.2 INTERPRETATION ..............................................................................12

A. REFERENCES HERETO. .....................................................................12 B. GENDER AND PLURALITY. ...............................................................12 C. PERSONS. ................................................................................................12 D. HEADINGS. .............................................................................................12 E. ENTIRE AGREEMENT. ........................................................................12 F. CONFLICTS IN OBLIGATIONS AND STANDARDS. .....................12

G. REFERENCES TO DAYS. .....................................................................13 H. COUNTERPARTS. .................................................................................13

I. APPLICABLE LAW. ..............................................................................13 J. SEVERABILITY. ....................................................................................13 K. NO THIRD PARTY RIGHTS ................................................................13

L. REFERENCES TO INCLUDING..........................................................13 M. REFERENCES TO KNOWLEDGE. .....................................................13 N. DEFINED TERMS ..................................................................................13

O. DRAFTING RESPONSIBILITY ...........................................................13 P. LIQUIDATED DAMAGES ....................................................................13

SECTION 1.3 TRANSITION PERIOD. ........................................................................14 A. INSPECTION ...........................................................................................14 B. EXISTING EQUIPMENT TO BE RETURNED TO

WORKING ORDER ...............................................................................14

C. PROVISION OF PLANS AND PROTOCOLS ....................................14 D. GOVERNMENTAL APPROVALS .......................................................15

SECTION 1.4 REPRESENTATIONS AND WARRANTIES OF THE

AUTHORITY. ......................................................................................................15 A. EXISTENCE AND POWERS ................................................................15 B. DUE AUTHORIZATION AND BINDING OBLIGATION ................15

C. NO CONFLICT .......................................................................................15 D. NO LITIGATION ....................................................................................15 E. NO LEGAL PROHIBITION ..................................................................16


CONTRACTOR. ..................................................................................................16

A. EXISTENCE AND POWERS ................................................................16 B. DUE AUTHORIZATION AND BINDING OBLIGATION ................16 C. NO CONFLICT .......................................................................................16 D. NO APPROVALS REQUIRED..............................................................16

E. NO LITIGATION ....................................................................................16 F. NO LEGAL PROHIBITION ..................................................................17 G. APPLICABLE LAW COMPLIANCE ..................................................17




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H. INFORMATION SUPPLIED BY THE CONTRACTOR AND

THE GUARANTOR ................................................................................17

ARTICLE II. OPERATION AND MAINTENANCE ..............................................................17 SECTION 2.1 OWNERSHIP AND USE OF OPERATION AND SITE ....................17

A. AUTHORITY OWNERSHIP .................................................................17 B. FAMILIARITY WITH OPERATION/NO CONTRACTOR

RESPONSIBILITY FOR DESIGN OF OPERATION ........................17

C. LIENS AND ENCUMBRANCES ...........................................................18 D. CONTRACTOR PROPERTY ................................................................18

SECTION 2.2 GENERAL CONTRACTOR OPERATION

RESPONSIBILITIES ..........................................................................................18

A. CONTRACTOR’S OPERATION RESPONSIBILITIES ...................18 B. USE OF THE OPERATION ..................................................................19

SECTION 2.3 EQUIPMENT. .........................................................................................19 A. EXISTING EQUIPMENT ......................................................................19 B. REPLACEMENT OF EXISTING EQUIPMENT ................................19

C. REPLACEMENT EQUIPMENT AT REQUEST OF

CONTRACTOR .......................................................................................19 SECTION 2.4 MAINTENANCE AND REPAIR ..........................................................19

A. MAINTENANCE AND REPAIR OF THE OPERATION ..................19 B. MAINTENANCE AND REPAIR OF THE EQUIPMENT. ................20

SECTION 2.5 STORAGE OF ACCEPTABLE M ATERIALS AT THE SITE ........21 SECTION 2.6 OPERATIONS AND MAINTENANCE PLAN ...................................21 SECTION 2.7 STAFFING AND TRAINING/KEY PERSONNEL ............................21

A. STAFFING AND TRAINING ................................................................21 B. KEY PERSONNEL .................................................................................21

SECTION 2.8 SAFETY AND SECURITY ...................................................................22 A. SAFETY ....................................................................................................22

B. FIRE PREVENTION AND PROTECTION .........................................22 C. SECURITY ...............................................................................................22

SECTION 2.9 COMPLIANCE WITH APPLICABLE LAW .....................................22

SECTION 2.10 OPERATING LEGAL ENTITLEMENTS ........................................23 SECTION 2.11 ACCESS AND RIGHT TO INSPECT OPERATION ......................23

A. NO ACCESS FROM ROUTE 59 ...........................................................23 B. AUTHORITY RIGHT TO ACCESS AND INSPECT

OPERATION ...........................................................................................23

SECTION 2.12 AUTHORITY CORRECTIVE ACTION ...........................................24

ARTICLE III. OPERATION PERFORMANCE .....................................................................24 SECTION 3.1 RECEIPT AND PROCESSING OF ACCEPTABLE

MATERIALS .......................................................................................................24

A. DELIVERY AND PROCESSING ..........................................................24 B. VISUAL INSPECTIONS ........................................................................24 C. TREATMENT OF REJECTS ................................................................25




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D. HAZARDOUS WASTE...........................................................................25 E. SCHEDULE OF CRUSHING OPERATIONS .....................................25

F. MATERIALS SURCHARGE .................................................................25 G. NO CONTRACTOR TIPPING CHARGES .........................................26 H. NO AUTHORITY RESPONSIBILITY OR LIABILITY FOR

FAILURE TO DELIVER ACCEPTABLE MATERIALS ..................26 I. WEIGHING AT AUTHORITY SCALES AND

DETERMINATION OF TONNAGE PROCESSED ............................26 J. ESTIMATES DURING INCAPACITATION ......................................26

SECTION 3.2 RECEIVING HOURS AND OPERATING HOURS ..........................26 A. RECEIVING HOURS .............................................................................26 B. ADDITIONAL RECEIVING HOURS ..................................................26

C. HOLIDAYS ..............................................................................................27

SECTION 3.3 OPERATION PERFORMANCE GUARANTEES .............................27 A. PROCESSING GUARANTEES .............................................................27 B. PRODUCT AND METAL MARKETABILITY GUARANTEE ........27

C. ENVIRONMENTAL GUARANTEES ..................................................27 SECTION 3.4 FAILURE TO MEET PERFORMANCE GUARANTEES. ...............28

A. ACCEPTABLE MATERIALS ACCEPTANCE AND

PROCESSING GUARANTEE ...............................................................28 B. PRODUCT AND METAL MARKETABILITY GUARANTEE ........28

C. ENVIRONMENTAL GUARANTEES ..................................................28 SECTION 3.5 DEVELOPMENT OF NEW PRODUCT STREAM. ..........................28 SECTION 3.6 UNCONTROLLABLE CIRCUMSTANCES GENERALLY ............29

A. PERFORMANCE EXCUSED ................................................................29 B. NOTICE, MITIGATION ........................................................................29

C. CONDITIONS TO OPERATION AND MAINTENANCE FEE

AND SCHEDULE RELIEF ....................................................................29

D. ACCEPTANCE OF RELIEF CONSTITUTES RELEASE ................30

ARTICLE IV. PRODUCT, METAL AND MARKETING .....................................................31 SECTION 4.1 MARKETING PLAN .............................................................................31

SECTION 4.2 MARKETING RESPONSIBILITIES ..................................................31 A. CONTRACTOR RESPONSIBILITIES, GENERALLY .....................31 B. NEW MATERIALS .................................................................................31 C. WEIGHING PROCEDURES FOR MARKETED

MATERIALS ...........................................................................................31

D. MINIMIZATION OF REJECTIONS....................................................32 E. LIMITATIONS ON CERTAIN MARKETING ACTIVITIES. .........32

SECTION 4.3 SALES REVENUES ...............................................................................32 A. PRODUCT AND METAL SALES REVENUES ..................................32

B. BULK RATE SALES REVENUES ........................................................32 SECTION 4.4 SAMPLING, TESTING, AND TRACKING........................................32 SECTION 4.5 BENEFICIAL USE .................................................................................33

SECTION 4.6 CHANGE IN LAW AFFECTING PRODUCT ....................................33




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SECTION 4.7 PRODUCT AND METAL MARKETABILITY

GUARANTEE ......................................................................................................34

SECTION 4.8 LANDFILL DISPOSAL OF ACCEPTABLE MATERIALS .............34

ARTICLE V. OPERATIONS AND MAINTENANCE FEE ...................................................34 SECTION 5.1 COST OF OPERATIONS ......................................................................34

A. FORMULA ...............................................................................................35 B. OPERATION CHARGE .........................................................................35

C. PERFORMANCE GUARANTEE CHARGE .......................................35 D. PRODUCT MARKETING CHARGE ...................................................36 E. AUTHORITY OFFSET CREDITS........................................................36 F. UNCONTROLLABLE CIRCUMSTANCES CREDIT OR

CHARGE ..................................................................................................36 G. ALL OTHER OPERATIONS AND MAINTENANCE FEE

ADJUSTMENTS ......................................................................................36

ARTICLE VI. BILLING OF THE OPERATION AND MAINTENANCE FEE .................36 SECTION 6.1 BILLING OF THE OPERATION AND MAINTENANCE

FEE ....................................................................................................................36 A. BILLING STATEMENTS AND PAYMENT .......................................36 B. BILLING ESTIMATES AND ADJUSTMENTS ..................................37

C. ANNUAL ESTIMATES ..........................................................................37 SECTION 6.2 ANNUAL SETTLEMENT .....................................................................37

A. ANNUAL SETTLEMENT ......................................................................37

ARTICLE VII. BREACH, DEFAULT, TERMINATION .......................................................37

SECTION 7.1 REMEDIES FOR BREACH ..................................................................37 SECTION 7.2 EVENTS OF DEFAULT BY THE CONTRACTOR. .........................37

A. EVENTS OF DEFAULT NOT REQUIRING NOTICE OR

CURE OPPORTUNITY FOR TERMINATION ..................................38 B. EVENTS OF DEFAULT REQUIRING NOTICE OR CURE

OPPORTUNITY FOR TERMINATION ..............................................39 C. NOTICE AND CURE PROVISIONS ....................................................39

SECTION 7.3 ENFORCEMENT COSTS .....................................................................39

SECTION 7.4 EVENTS OF DEFAULT BY THE AUTHORITY. .............................40 A. EVENTS OF DEFAULT FOR WHICH CONTRACTOR

MAY TERMINATE ................................................................................40

B. NOTICE AND CURE PROVISIONS. ...................................................40 C. NO OTHER AUTHORITY FAILURES SHALL

CONSTITUTE AN EVENT OF DEFAULT .........................................40 SECTION 7.5 TERMINATION FOR CONVENIENCE.............................................40 SECTION 7.6 RIGHT TO TERMINATE FOR VIOLATION OF

APPLICABLE LAW ...........................................................................................41

ARTICLE VIII. TERM, EXIT TEST, AND SURVIVAL OF CERTAIN PROVISIONS ...41 SECTION 8.1 TERM OF AGREEMENT .....................................................................41




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SECTION 8.2 EXIT TEST..............................................................................................41 SECTION 8.3 SURVIVAL OF CERTAIN PROVISIONS ..........................................41

ARTICLE IX. SECURITY FOR PERFORMANCE ...............................................................42 SECTION 9.1 PERFORMANCE BOND ......................................................................42

A. PERFORMANCE BOND .......................................................................42 B. MONITORING SURETIES ...................................................................42

SECTION 9.2 GUARANTOR. .......................................................................................42

A. GUARANTY AGREEMENT .................................................................42 B. MATERIAL ADVERSE CHANGE TO FINANCIAL

CONDITION OF THE GUARANTOR .................................................42 C. CREDIT ENHANCEMENT ...................................................................43

D. GUARANTOR FINANCIAL REPORTS ..............................................43

ARTICLE X. GENERAL ............................................................................................................44

SECTION 10.1 BOOKS AND RECORDS ....................................................................44 SECTION 10.2 MONTHLY AND ANNUAL REPORTS ............................................44 SECTION 10.3 NOTICE OF DEFAULT UNDER LEGAL

ENTITLEMENTS................................................................................................44 SECTION 10.4 NO WAIVERS ......................................................................................44 SECTION 10.5 APPLICABLE LAW, FORUM FOR DISPUTE

RESOLUTION AND WAIVER OF JURY TRIAL .........................................45 SECTION 10.6 CONTRACTOR INSURANCE ...........................................................45

SECTION 10.7 NO CONSEQUENTIAL OR PUNITIVE DAMAGES .....................45 SECTION 10.8 INDEMNIFICATION ..........................................................................45

SECTION 10.9 NO DISCRIMINATION ......................................................................46 SECTION 10.10 ACTIONS OF THE AUTHORITY IN ITS

GOVERNMENTAL CAPACITY ......................................................................46

SECTION 10.11 ASSIGNMENT AND TRANSFER. ..................................................47 SECTION 10.12 CHANGE IN OWNERSHIP OF CONTRACTOR OR

PARENT COMPANY. ........................................................................................47 SECTION 10.13 AMENDMENTS .................................................................................47 SECTION 10.14 NOTICES ............................................................................................47

A. OPERATING NOTICES ........................................................................47 B. NOTICES OTHER THAN OPERATING NOTICES .........................48

SECTION 10.15 REDIRECTION OF EAGLE CRUSHER ........................................49 SECTION 10.16 FURTHER ASSURANCES ...............................................................49 SECTION 10.17 BINDING EFFECT ............................................................................49 SECTION 10.19 ADMINISTRATIVE COMMUNICATIONS. .................................49

A. ADMINISTRATION OF AGREEMENT .............................................49 B. CONTRACT ADMINISTRATION MEMORANDA ..........................49

SECTION 10.20 RELATIONSHIP OF THE PARTIES..............................................50

SECTION 10.21 REPAIR OF AUTHORITY, COUNTY AND PRIVATE

PROPERTY..........................................................................................................50 SECTION 10.22 AUTHORITY APPROVAL OF SUBCONTRACTORS. ...............50




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A. SUBCONTRACTOR APPROVAL ........................................................50 B. CONTRACTOR OBLIGATIONS .........................................................51

C. SUBCONTRACT TERMS AND SUBCONTRACTOR

ACTIONS .................................................................................................51 D. INDEMNITY FOR SUBCONTRACTOR CLAIMS ............................51 E. AUTHORITY RIGHT TO ASSUME CONTRACTOR’S

EXISTING CONTRACTUAL OBLIGATIONS ..................................51

SECTION 10.23 INTERPRETATION IN ACCORDANCE WITH IRS

REVENUE PROCEDURE 2017-13. ..................................................................51

APPENDICES

1. Operations and Maintenance Plan (including Acceptance and Unloading Procedures and

Marketing Plan) [To be developed based on RFP requirements]

2. Contractor Insurance

3. Sample Monthly Report and Annual Report

4. List of Equipment

5. Operation Charge - Amounts

6. Staffing/Key Personnel

7. Sales Procedure

8. Settlement Statement

9. Site Map

10. Approved Subcontractor and Subcontractor Approval Process

11. Liquidated Damages

TRANSACTION AGREEMENT FORMS

A. Form of Guaranty Agreement

B. Form of Performance Bond

This CONCRETE AND ASPHALT CRUSHING OPERATIONS OPERATING AND

MAINTENANCE AGREEMENT is made and dated as of the [__] day of [________], 2020

(the “Agreement”), by and between ROCKLAND COUNTY SOLID WASTE

MANAGEMENT AUTHORITY, a body politic and corporate constituting a public benefit

corporation of the State of New York, and having an office and place of business at 172 Main

Street, Nanuet, New York 10954 (hereafter the “Authority”) and [ ], a [

] organized and existing under the laws of the State of [ ], having an office and principal

place of business at [ ] (hereafter the “Contractor”).

RECITALS

WHEREAS, the Authority was authorized to issue a Request for Proposals (“RFP”) and,

pursuant thereto, to award a contract to a company with expertise in the handling, treatment and

processing of Acceptable Materials to operate and maintain the Authority’s Concrete and

Asphalt Crushing Operations (the “Operation”) located in West Nyack, New York; and

WHEREAS, the Authority conducted such a procurement and received [__] proposals in

response to its RFP, including the proposal from the Contractor; and

WHEREAS, at a duly held meeting of the Authority Board on [_________] [__], 2020, the

Authority Board, by Resolution No. [__] of 2020, accepted the proposal submitted by the

Contractor, and authorized the negotiation and execution of an agreement with the Contractor to

provide the Contract Services; and

WHEREAS, the Parties hereto wish to enter their contractual relationship pursuant to which

Contractor will operate and maintain the Operation and properly manage any Acceptable

Materials received and accepted at the Operation and market the resulting Product; and

WHEREAS, the execution and delivery of this Agreement by Contractor has been duly

authorized by all necessary corporate action.

NOW THEREFORE, in consideration of the mutual promises and covenants set forth herein, the

parties agree as follows:




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ARTICLE I.

DEFINITIONS, INTERPRETATION AND TRANSITION PERIOD

SECTION 1.1 DEFINITIONS

“Acceptable Materials” means separate loads of (i) Uncontaminated Concrete, (ii)

Uncontaminated Asphalt, and (iii) other items as designated by the Authority, meeting the

acceptance criteria stated herein.

“Acceptable Materials Acceptance and Processing Guarantee” has the meaning set forth in

Section 3.3 of this Agreement.

“Agreement” means this Agreement for the Operation and Maintenance of the Rockland County

Solid Waste Management Authority’s Concrete and Asphalt Crushing Operation, together with

all appendices and amendments thereto.

“Annual Settlement Statement” means an annual settlement of payments and accounts as further

defined in Section 6.2 hereof.

“Appendix” means any appendix to this Agreement.

“Applicable Law” means any law, rule, code, standard, regulation, requirement (including

County licensing for trades), consent decree, consent order, consent agreement, permit, guideline

(including the Authority’s procurement policy), action, determination or order of, or Legal

Entitlement issued by or deemed to be issued by, any Governmental Body having jurisdiction,

applicable from time to time, to the design, equipping, financing, ownership, possession,

operation or maintenance of the Operation and Site; to the transfer, handling, hauling, and

transportation of Acceptable Materials, and the marketing of Product, and/or Metal, or to any

other transaction or matter contemplated hereby (including any of the foregoing which concern

procurement, contracting, health, safety, fire, environmental protection, processing, quality and

use, labor relations, mitigation monitoring plans, building codes, nondiscrimination and the

payment of minimum or prevailing wages).

“Asphalt” means a mixture of bituminous pitch with sand or gravel, used for surfacing roads,

including debris consisting of waste asphalt, pavement, curbing and Millings.

“Authority” means the Rockland County Solid Waste Management Authority.

“Authority Engineer” means (1) any engineer employed by the Authority and designated by the

Authority to the Contractor in writing or (2) a nationally recognized consulting engineer or firm

of consulting engineers licensed in the State of New York, having experience with respect to the

design, construction, testing, operation and maintenance of concrete and asphalt crushing

facilities, which is designated as the Authority Engineer for the purposes of this Agreement from

time to time in writing by the Authority to the Contractor.




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“Authority Fault” means the untruth of any material representation made by the Authority

hereunder or any breach, failure, non-performance or non-compliance by the Authority with

respect to its obligations and responsibilities hereunder not attributable to Uncontrollable

Circumstances or Contractor Fault caused by any willful or negligent act, error or omission by

the Authority, its officials, agents, employees, representatives, independent contractors or

subcontractors of any tier and which materially and adversely affects the Contractor’s

performance or rights or obligations under this Agreement.

“Authority Offset Credits” has the meaning stated in subsection 5.1(E) hereof.

“Beneficial Use” means any application of Product, including any lawful construction, paving,

landscaping or land reclamation use, or for application as daily or final landfill cover, other than

disposal in a landfill in accordance with Part 363-6.21(c) provided such use is in compliance

with Applicable Law, including Part 360.12(c) (3)(viii), (ix) and (x).

“Billing Period” means each calendar month in each Contract Year.

“Change in Law” means any of the following events or conditions which has a material and

adverse effect on the performance by the Parties of their respective obligations under this

Agreement (except for payment obligations), or on the operation or maintenance of the

Operation or the marketing of Product:

(A) Inclusions: A “Change in Law” shall include:

(1) the enactment, adoption, promulgation, issuance, modification or written change in

administrative or judicial interpretation on or after the Contract Date of any federal, State or local

law (except as set forth in the exclusions in (B) below), regulation, rule, requirement, guideline,

ruling or ordinance, unless such law, regulation, rule, requirement, guideline, ruling or ordinance

was, on or prior to the Contract Date, proposed and published in the Federal or New York

Register or was duly adopted, promulgated, issued or otherwise officially modified or changed in

interpretation;

(2) the order or judgment of any federal, state or local court, administrative agency or

Governmental Body, on or after the Contract Date, to the extent such order or judgment is not

the result of willful or negligent action, error or omission or lack of reasonable diligence of the

Contractor or of the Authority, whichever is asserting the occurrence of a Change in Law;

provided, however, that the contesting in good faith or the failure in good faith to contest any

such order or judgment shall not constitute or be construed as such a willful or negligent action,

error or omission or lack of reasonable diligence; or

(3) the denial of an application for, delay in the review, issuance or renewal of, or

suspension, termination, interruption, imposition of a term, condition or requirement which is

more stringent or burdensome in connection with the issuance, renewal or failure of issuance or

renewal on or after the Contract Date of any Legal Entitlement to the extent that such denial,

delay, suspension, termination, interruption or imposition materially and adversely affects the

performance of this Agreement, if and to the extent that such denial, delay, suspension,




4 4848-7048-9779, v. 3

termination, interruption or imposition is not the result of willful or negligent action, error or

omission or a lack of reasonable diligence of the Contractor or of the Authority, whichever is

asserting the occurrence of a Change in Law; provided, however, that the contesting in good

faith or the failure in good faith to contest any such denial, delay, suspension, termination,

interruption or imposition shall not be construed as such a willful or negligent action, error or

omission or lack of reasonable diligence.

(B) Exclusions: A “Change in Law” shall not include:

(1) a change in Applicable Law pertaining to Taxes;

(2) a change in the law of any foreign country;

(3) any Change in Law (including the issuance of any Legal Entitlement, the enactment of

any statute, or the promulgation of any regulation) the terms and conditions of which do not

impose more stringent, costly or burdensome requirements on the Operation or the Contractor

than those set forth in the Performance Guarantees, including the Environmental Guarantees, or

other obligations contained herein;

(4) any change in interpretation, however stringent, by a Government Body of the meaning

of the terms and conditions of the Legal Entitlements in force as of the Contract Date;

(5) any change in Applicable Law pertaining to prevailing wages with respect to the

Contractor’s or its Subcontractors’ costs relating to wages and benefits, including prevailing

wages; or

(6) the applicability of a provision or requirement of the Part 360 Regulations in effect

(including provisions passed but not necessarily implemented) as of the Contract Date to the

Operation following the Service Commencement Date whether due to changed condition or

otherwise. The occurrence of any Change in Law affecting the use of Product shall not entitle

Contractor to any additional compensation on account of Product loss or loss of Product and

Metals.

“Clarkstown Solid Waste Facilities” means the Operation, as well as the contiguous Wood

Mulching Facility, Yard Waste Composting Facility, Transfer Station, and scalehouse, all

located in Clarkstown, New York and acquired from the Town in 2009.

“Concrete” means material typically made from a combination of stone, cement, sand, gravel

and water generated through demolition of foundations, decking, road slabs, block and precast

structures.

“Contract Date” means [ ], the date this Agreement has been executed and

delivered by the parties.

“Contract Services” means everything required to be furnished and done for and relating to the

Operation, including the operation and maintenance of the Operation, receipt and processing of

Acceptable Materials delivered to the Operation, the production and marketing of Product and/or




5 4848-7048-9779, v. 3

Metal, and the transport of Product and Metal to markets pursuant to the terms of this Agreement

during the Term. A reference to “Contract Services” shall mean “any part and all of the Contract

Services” unless the context otherwise requires.

“Contract Standards” means the standards, terms, conditions, methods, techniques and practices

imposed or required by: (1) Applicable Law, (2) Good Industry Practices, (3) the Operations and

Maintenance Plan, (4) applicable equipment manufacturers’ specifications, including

specifications for recommended inspections and maintenance intervals, (5) applicable Insurance

Requirements, and (6) any other standard, term, condition or requirement specifically provided

in this Agreement to be observed by the Contractor. Subsection 1.2(F) shall govern issues of

interpretation related to the applicability and stringency of the Contract Standards.

“Contract Year” means the period commencing on January 1 in any calendar year and ending on

December 31 of the same calendar year. Any computation made on the basis of a Contract Year

shall be adjusted on a pro rata basis to take into account any Contract Year of less than three

hundred sixty-five/three hundred sixty-six (365/366) days, such as the time period in 2020

following the Service Commencement Date of the Agreement.

“Contractor” means [ ], a [ ] organized and

existing under the laws of the State of New York, having an office and principal place of

business at [ ].

“Contractor Equipment” means machinery, apparatus, articles, materials, spare parts, and

functional apparatus of any kind, which are provided by the Contractor for use at the Operation.

“Contractor Fault” means the untruth of any material representation made by the Contractor

hereunder, or any breach, failure, non-performance or non-compliance by the Contractor under

this Agreement with respect to its obligations and responsibilities hereunder not attributable to

Uncontrollable Circumstances, or any willful or negligent act, error or omission by the

Contractor, its officials, agents, employees, representatives or independent contractors or

Subcontractors of any tier and which materially and adversely affects the Authority’s

performance or rights or obligations under this Agreement.

“Contractor Insurance” means the insurance required to be maintained by the Contractor as set

forth in Appendix 2.

“Cost Substantiation” or “Cost Substantiated” means, with respect to any cost reasonably

incurred or to be incurred by the Contractor which is authorized and is directly or indirectly

chargeable in whole or in part to the Authority, delivery to the Authority of a certificate signed

by an authorized officer of the Contractor, stating that such cost is a fair market price for the

service or materials supplied or to be supplied and that such services and materials are

reasonably required, and accompanied by copies of such documentation, as shall be necessary, to

reasonably demonstrate that the cost as to which Cost Substantiation is required has been or will

be paid or incurred. Such documentation shall include reasonably detailed information

concerning (1) all Subcontracts, (2) the amount and character of materials furnished, the persons

from whom purchased, the amounts payable therefor and related delivery and transportation




6 4848-7048-9779, v. 3

costs, and any sales or personal property taxes, (3) a statement of the equipment used and any

rental payable therefor, (4) Contractor and Subcontractor worker hours, duties, wages, salaries,

benefits, assessments, taxes, and premiums, and (5) administration, bonds, insurance, and other

expenses. Cost Substantiation shall not include profit or mark-up.

“County” means Rockland County, New York.

“Crushing” means the crushing of received Concrete and Asphalt sections using the Eagle

Ultramax Crusher, or such other Crusher as designated by the Authority.

“Encumbrances” means any Lien, lease, mortgage, security interest, charge, judgment, judicial

award, attachment or encumbrance of any kind with respect to the Operation or the Site.

“Environmental Guarantee” has the meaning stated in Section 3.3 hereof.

“Equipment” means all Existing Equipment and Contractor Equipment used in the performance

of the Contract Services.

“Existing Equipment” means machinery (fixed and moveable) apparatus, articles, materials,

spare parts, and functional apparatus of any kind, owned by the Authority which will be provided

by the Authority for use at the Operation.

“Fees-And-Costs” means reasonable fees and expenses of attorneys, expert witnesses,

consultants and other persons, and costs of transcripts, printing of briefs and records on appeal,

copying and other reimbursed expenses, and expenses reasonably incurred in connection with

any Legal Proceeding.

“Flow Control Law” means Chapter 350 of the Laws of Rockland County, State of New York

(County Flow Control Law Regulating the County-Wide Collection and Disposal of Solid Waste

Generated in Rockland County, including Garbage, Recyclables, Construction and Demolition

Debris and Yard Waste, and for the Prohibition of the Disposal of any Waste Materials in any

Manner Except as Set Forth in This Law.)

“Good Industry Practices” means those methods, techniques, standards and practices which, at

the time they are to be employed and in light of the circumstances known or reasonably believed

to exist at such time, are generally accepted as good in the recycled aggregate industry.

“Governmental Body” means any federal, state, County, authority or regional legislative,

executive, judicial or other governmental board, agency, authority, commission, administration,

court or other body.

“Guarantor” means the parent guarantor that would guarantee the performance and

payment obligations of the Contractor throughout the term of this Agreement, to the extent

required by the Authority.

“Guaranty Agreement” means an agreement by the Guarantor guaranteeing the performance and

payment obligations of the Contractor under this Agreement.




7 4848-7048-9779, v. 3

“Hauler” means any person that delivers Acceptable Materials to the Operation.

“Hazardous Waste” means any waste, substance, object or material deemed hazardous under

Applicable Law, including without limitation, 6 NYCRR Part 371 and “hazardous material” as

defined in the Resource Conservation and Recovery Act.

“High Strength Concrete” means Concrete with a strength of 3,500 psi or greater (as further

described in the Operation and Maintenance Plan.)

“Initial Term” has the meaning set forth in Section 8.1 hereof.

“Insurance Requirement” means any rule, regulation, code, or requirement issued by any fire

insurance rating bureau or issued by any body having similar functions, including, but not

limited to, requirements regarding pollution liability, or by any insurance carrier that has issued a

policy of required insurance, compliance with which is a condition to the effectiveness of such

insurance policy.

“Legal Entitlement” means all permits, licenses, registrations, approvals, authorizations, consents

and entitlements of whatever kind and however described which are required under Applicable

Law to be obtained or maintained by any person with respect to the Contract Services.

“Legal Proceeding” means every action, suit, litigation, administrative proceeding, and other

legal or equitable proceeding arising out of the obligations of the Parties under this Agreement.

“Lien” means any and every lien against the Operation or the Site or against any monies due or

to become due from the Authority to the Contractor under this Agreement, for or on account of

the Contract Services including, without limitation, mechanics’, materialmen’s, laborers’ and

lenders’ liens.

“Loss-And-Expense” means any and all loss, liability, forfeiture, obligation, damage, delay,

penalty, judgment, cost, or expense, including all Fees-And-Costs, except as expressly excluded

or limited by this Agreement.

“Market” means the sale or exchange for value of Product to buyers or their agents.

“Marketing Plan” means the document prepared by the Contractor as part of the Operations and

Maintenance Plan and consistent with the requirements set forth in Article IV of this Agreement.

“Materials Recovery Facility” means the materials recovery facility owned by the Authority and

located in Hillburn, New York.

“Materials Surcharge” means the surcharge imposed by the Contractor as set forth in subsection

3.1(F).

“Metal” means rebar and other metal materials removed from Acceptable Materials through

processing. (“Metal” as defined herein shall not consist of RCP.)




8 4848-7048-9779, v. 3

“Milling” means the recycled asphalt pavement resulting from the controlled removal of an

existing asphalt pavement layer.

“Monthly Report” means the operations and financial reconciliation report prepared each Billing

Period by the Contractor which includes a summary of all relevant data and records related to the

Operation (such as the marketing plan) and other specific information required hereby. A

sample form of the Monthly Report is included as Appendix 3.

“NYSDEC” means the Department of Environmental Conservation of the State of New York.

“Operating Day” means the days the Operation is operating (i.e. Monday through Saturday,

excluding Authority Holidays identified in subsection 3.2(C)).

“Operation” means the Concrete and Asphalt Crushing Operation located at the Site, including

all equipment utilized on and off the Operation Site for the purpose of Crushing Concrete and

Asphalt delivered to the Operation.

“Operation Charge” has the meaning set forth in subsection 5.1(B) hereof.

“Operation Receiving Hours” shall have the meaning stated in subsection 3.2(A) hereof.

“Operations and Maintenance Fee” means the fee set forth in Article V.

“Operations and Maintenance Plan” means the document submitted by the Contractor which

describes the plan for the Contractor’s operations and maintenance of the Operation, and

includes the Marketing Plan responsibilities of the Contractor and establishes procedures to

fulfill those responsibilities throughout the term of this Agreement.

“Oversized Materials” means pieces of Acceptable Materials with dimensions that exceed 24

inches by 24 inches by 8 inches that cannot be processed by the Eagle Ultramax Crusher, or

other crusher as allowed by the Authority, without further size reduction.

“Party” or “Parties” means the Authority and/or the Contractor executing this Agreement.

“Performance Guarantees” means the performance obligations set forth in Article III.

“Performance Guarantee Charge” has the meaning set forth in subsection 5.1(C) hereof.

“Permit” means the permit issued by the DEC for Concrete and Asphalt construction and

demolition debris processing for the Operation.

“Process,” “Processed,” or “Processing” means an operation or series of operations, whether

involving Authority or Contractor Equipment or manual labor that enhances, upgrades,

concentrates, decontaminates, packages or otherwise prepares Acceptable Materials for sale, or

exchange to Market as a Product and extracts Rejects, if any, for disposal.




9 4848-7048-9779, v. 3

“Product” means the material produced through the processing of the Acceptable Materials to its

best and highest use, including Recycled Concrete Aggregate and Recycled Asphalt, meeting

industry standards for use as fill and excluding Rejects. [Additional product identified by

selected Proposer to be included here, if applicable.]

“Product Marketing Charge” means the charge payable by the Authority to the Contractor for the

successful marketing of Product and Metal.

“Product and Metal Marketability Guarantee” has the meaning set forth in subsection 3.3(B)

hereof.

“Product and Metal Sales Revenues” means the gross amount of monies, payable to the

Authority, and the value of all goods received for the sale and delivery of Recycled Concrete

Aggregate, Recycled Asphalt, Product and Metal, F.O.B..

“Product Guarantee” has the meaning set forth in item 2 of subsection 3.3(A) of this Agreement.

“RCA” means Recycled Concrete Aggregate.

“RCP” means reinforced concrete pipe with wire mesh infrastructure.

“Recycled Asphalt” means Asphalt that has been ground to uniformly sized particles according

to the specifications of the Market.

“Recycled Concrete Aggregate” or “RCA” means concrete that has been ground and Screened

according to the specifications of the Market and end users.

“Rejects” means Unacceptable Materials mixed with Acceptable Materials as delivered to the

Operation.

“Remediation,” “Remedy,” or “Remedies” means all Contract Services and the costs (including

the Authority’s administrative, legal, and engineering costs), associated therewith that the

Contractor must implement in order to restore compliance with all Performance Guarantees

and/or other requirements of this Agreement.

“Renewal Term” has the meaning set forth in Section 8.1.

“Required Operating Period Insurance Coverage” has the meaning set forth in Appendix 2

hereof.

“Screening” means the process of separating and sizing Product so as to remove Unacceptable

Materials and/or produce a desired Product.

“Service Commencement Date” means the date the Contractor will commence performing the

Contract Services hereunder. (The anticipated Service Commencement Date is June 1, 2020.)

“Shipped Product” means Product shipped from the Operation.




10 4848-7048-9779, v. 3

“Site” means the property located in West Nyack, New York at the intersection of Route 303 and

Route 59, upon which the Operation is located as further identified in Appendix 9.

“Solid Waste” means all materials or substances discarded or rejected as being spent, useless,

worthless, or in excess to the owners at the time of such discard or rejection, including, but not

limited to, garbage, refuse, industrial and commercial waste, rubbish, ash, contained gaseous

material, demolition and construction debris, and excluding Acceptable Materials.

“State” means the State of New York.

“Subcontract” means an agreement between the Contractor and a Subcontractor or between two

(2) Subcontractors, as applicable.

“Subcontractor” means every person (other than employees of the Contractor) employed or

engaged by the Contractor or any person directly or indirectly in privity with the Contractor

(including every subcontractor of whatever tier) for any portion of the Contract Services,

whether for the furnishing of labor, materials, Equipment, supplies, services, or otherwise in

connection with the Operation or the Contract Services.

“Tax” means any tax, fee, levy, duty, charge, surcharge, assessment or withholding, or any

payment in lieu thereof and any related interest, penalties, or additions to tax.

“Term” has the meaning set forth in Section 8.1.

“Ton” means a short Ton of two thousand (2,000) United States pounds.

“Town” means the Town of Clarkstown, New York.

“Transfer Station” means the Clarkstown transfer station located on Route 303 in West Nyack,

New York.

“Transition Period” has the meaning set forth in Section 1.3.

“Unacceptable Material” means all materials that may impair the processing or marketability of

the Product other than Acceptable Materials. Unacceptable Materials includes but is not limited

to RCP, brick, rocks and soil.

“Uncontaminated” means not commingled with, and not containing: (i) other waste; (ii)

petroleum and petroleum products, except those present solely as a result of normal use of

vehicles on roadways or parking areas; (iii) pesticides except those present solely as a result of

the property application in normal agricultural or horticultural practices; and (iv) hazardous

waste, as set forth in 6 NYCRR Sec. 360.2(b)(286).

“Uncontrollable Circumstances” means any act, event or condition that is beyond the

reasonable control of the Party relying thereon as justification for not performing an obligation or

complying with any condition required of such Party under this Agreement, and that materially

interferes with or materially increases the cost or time required for performing its obligations




11 4848-7048-9779, v. 3

hereunder (other than payment obligations), to the extent that such act, event or condition is not

the result of the willful or negligent act, error or omission, failure to exercise reasonable

diligence, or breach of this Agreement on the part of such Party:

(A) Inclusions: Subject to the foregoing, Uncontrollable Circumstances may include

the following:

(1) a Change in Law;

(2) naturally occurring events (except weather conditions normal for the northeast

region of the United States) such as landslides, underground movement, earthquakes, fires,

tornadoes, floods, epidemics, lightning, and other acts of God;

(3) explosion, sabotage or similar occurrence, acts of a declared public enemy,

extortion, war, terrorism, blockade or insurrection, riot or civil disturbance;

(4) labor disputes, except labor disputes involving employees of the Contractor,

Subcontractors, or affiliates of the Contractor or Subcontractors which affect the performance of

the Contract Services;

(5) the failure of any appropriate federal, State, Authority or local public agency or

private utility having operational jurisdiction in the area in which the Site is located to provide

and maintain utilities, services, water and sewer lines and power transmission lines to the Site

(but not including reasonably anticipated power outages) which are required for the performance

of the Contract Services;

(6) the discovery of a Hazardous Substance or Hazardous Waste on or at the Site;

(7) acts of terror of a public enemy; and

(8) any enforcement of any lien, charge or encumbrance on the Operation or Site not

consented to in writing by, or arising out of any action or agreement entered into by either Party.

(B) Exclusions: It is specifically understood that none of the following acts, events or

circumstances shall constitute Uncontrollable Circumstances:

(1) general economic conditions, interest or inflation rates, or currency fluctuation;

(2) changes in the financial condition of the Contractor, or any of Contractor’s

Affiliates or Subcontractors, affecting their ability to perform their respective obligations;

(3) the consequences or the result of the neglect, act, error or omission, or the failure

to exercise reasonable diligence, by the Contractor or any of its employees, agents, suppliers or

Affiliates, Subcontractors or any other person in the performance of the Contract Services;

(4) the failure of the Contractor to secure patents or licenses or similar authorizations

in connection with the technology necessary to perform its obligations hereunder;

(5) the failure of any Subcontractor at any time for any reason to furnish labor,

services, materials, supplies or equipment on the dates agreed to;

(6) strikes, work stoppages or other labor disputes or disturbances;

(7) union or labor work rules, requirements or demands which have the effect of

increasing the number of employees employed at the Operation or the Site or otherwise

increasing the cost or burden to the Contractor, or any Subcontractor, of performing the Contract

Services;

(8) any increase for any reason in premiums charged by the Contractor’s insurers or

the insurance markets generally for the Contractor Insurance;

(9) any impact of prevailing wages, laws or rates on the Contractor’s, or a

Subcontractor’s, costs with respect to wages and benefits;




12 4848-7048-9779, v. 3

(10) the failure or delay of any Governmental Body to issue any Legal Entitlements

which are required for the performance of the Contract Services;

(11) any act, event or circumstance occurring outside the United States; and

(12) the availability of markets for the sale or Beneficial Use of Product.

“Useful Life” means beyond the economical repair of a piece of equipment or rolling stock, machinery or a vehicle.

“Wood Mulching Facility” means the wood mulching facility adjacent to the Operation and located in West Nyack, NY.

“Yard Waste Composting Facility” means the yard waste composting facility located on Route 303 in West Nyack, New York.

SECTION 1.2 INTERPRETATION. In this Agreement, unless the context otherwise

requires:

A. References Hereto. The terms “hereby,” “hereof,” “herein,” “hereunder”

and any similar terms refer to this Agreement.

B. Gender and Plurality. Words of the masculine gender mean and include

correlative words of the feminine and neuter genders and words importing the singular number

mean and include the plural number and vice versa.

C. Persons. Words importing persons include firms, companies, associations,

general partnerships, limited partnerships, trusts, business trusts, corporations and other legal

entities, including public bodies, as well as individuals.

D. Headings. The table of contents and any headings preceding the text of

the Articles, Sections and subsections of this Agreement shall be solely for convenience of

reference and shall not constitute a part of this Agreement, nor shall they affect its meaning,

construction or effect.

E. Entire Agreement. This Agreement contains the entire agreement between

the Parties hereto with respect to the transactions contemplated by this Agreement and nothing in

this Agreement is intended to confer on any person other than the Parties hereto and their

respective permitted successors and assigns hereunder any rights or remedies under or by reason

of this Agreement.

F. Conflicts in Obligations and Standards. In the event of a conflict between

any provisions of this Agreement (including the Appendices hereto) imposing any requirement,

obligation, standard or guarantee on the Contractor, the higher or more stringent requirement,

obligation, standard or guarantee shall apply. As used herein, the “most stringent” shall mean

the applicable Contract Standard that is most beneficial to the Authority. The Parties shall

resolve all issues of interpretation not related to stringency according to dispute resolution as set

forth in Section 10.5.




13 4848-7048-9779, v. 3

G. References to Days. All references to days herein are to calendar days,

including Saturdays, Sundays and holidays, except as otherwise specifically provided.

H. Counterparts. This Agreement may be executed in any number of original

counterparts. All such counterparts shall constitute but one and the same Agreement.

I. Applicable Law. This Agreement shall be governed by and construed in

accordance with the applicable laws of the State of New York.

J. Severability. If any clause, provision, subsection, Section or Article of

this Agreement shall be ruled invalid by any court of competent jurisdiction, then the Parties

shall: (1) promptly meet and negotiate a substitute for such clause, provision, subsection, Section

or Article which shall, to the greatest extent legally permissible, effect the intent of the Parties

therein; (2) if necessary or desirable to accomplish item (1) above, apply to the court having

declared such invalidity for a judicial construction of the invalidated portion of this Agreement;

and (3) negotiate such changes in, substitutions for or additions to the remaining provisions of

this Agreement as may be necessary in addition to and in conjunction with items (1) and (2)

above to effect the intent of the parties in the invalid provision. The invalidity of such clause,

provision, subsection, Section or Article shall not affect any of the remaining provisions hereof,

and this Agreement shall be construed and enforced as if such invalid portion did not exist.

K. No Third Party Rights. This Agreement is exclusively for the benefit of

the Authority and the Contractor and shall not provide any third parties with any remedy, claim,

liability, reimbursement, cause of action, or other rights.

L. References to Including. All references to “including” or “includes”

herein shall be interpreted as meaning “including without limitation” or “includes without

limitation”, respectively.

M. References to Knowledge. All references to “knowledge,” “knowing,”

“know,” and “knew” shall be interpreted as referenced to a Party having actual knowledge.

N. Defined Terms. The definitions set forth in Section 1.1 hereof control in

the event of any conflict with the definitions used in the recitals hereto.

O. Drafting Responsibility. Neither of the Parties shall be held to a higher

standard than any other Party in the interpretation or enforcement of this Agreement as a whole

or any portion hereof based on drafting responsibility.

P. Liquidated Damages. This Agreement provides for the payment of

liquidated damages set forth in Appendix 11 in certain circumstances of non-performance,

breach and default. Each Party agrees that the damaged Party’s actual damages in each such

circumstance would be difficult or impossible to ascertain (particularly with respect to the public

harm that would occur as a result of such non-performance, breach or default of the Contractor)

and that the liquidated damages provided for herein with respect to each such circumstance are

intended to place the Authority in the same economic position as it would have been in had the




14 4848-7048-9779, v. 3

circumstance not occurred. In those cases where additional remedies are provided for, the

Parties acknowledge and agree that such remedies are intended to address harms and damages

that are separate and distinct from those which the liquidated damages are meant to remedy. The

amounts of the liquidated damages have been determined taking into account, among other

things, cost savings which a Party might realize as a result of the circumstances resulting in the

requirements to pay liquidated damages and any such savings shall not mitigate or off-set the

requirement of a Party to pay the full amount of such liquidated damages. Except to the extent

the Contractor is excused for Uncontrollable Circumstances or Authority Breach, the Authority

shall have the right to deduct from the Operations and Maintenance Fee and/or the Product

Marketing Charge amounts due from the Contractor to the Authority for the liquidated damages

set forth in Appendix 11. In the event that an action of occurrence gives rise to more than one

event of default listed in Appendix 11, the Authority shall only impose one liquidated damage on

the Contractor.

SECTION 1.3 TRANSITION PERIOD. The period between the Contract Date and

Service Commencement Date shall be known as the “Transition Period.” During the Transition

Period, the Parties shall comply with the conditions below and the following shall apply:

A. Inspection. The Authority shall require a manufacturer’s representative to

conduct an inspection of each piece of Existing Equipment. Copies of the resulting inspection

reports shall be set forth in Appendix 4 hereto. Notwithstanding the Contractor obligations set

forth in item (3) of subsection 2.4(B), prior to such inspection, the Authority shall be responsible

for Existing Equipment repairs so long as such repairs were not caused due to Contractor Fault.

On or before the week of [_________, 2020] (and prior to the Service Commencement Date), at

a time mutually agreeable to the Parties, the Parties shall conduct a final walk-through of the

Site. At such walk-through, the Contractor shall raise any issues related to the condition of the

Site and any piece of Existing Equipment that would interfere with the Contractor’s ability to

comply with the Performance Guarantees. Immediately following such Site visit, the Contractor

shall provide the Authority for its review and reasonable approval a written description of any

condition identified at the Site visit. Included in such description shall be a detailed explanation

outlining the issues related to such condition and how such condition would interfere with the

Contractor’s ability to meet the Performance Guarantees. Any issues not raised by the

Contractor and approved by the Authority shall thereafter become the responsibility of the

Contractor.

B. Existing Equipment to be Returned to Working Order. The Authority

shall ensure that all Existing Equipment is in working order in accordance with the

recommendations made pursuant to the inspection set forth in subsection (A) above.

C. Provision of Plans and Protocols. As set forth in Section 2.6 of this

Agreement, the Contractor shall provide the Operations and Maintenance Plan to the Authority at

least fifteen (15) days prior to the Service Commencement Date. The Contractor must include,

as part of the Operations and Maintenance Plan, its plan for the handling, storage and disposal of

Hazardous Waste. In addition, within fifteen (15) days prior to the Service Commencement

Date, the Contractor shall provide the Marketing Plan to the Authority in accordance with the

provisions set forth in Section 4.1 of this Agreement. The Authority shall provide any comments




15 4848-7048-9779, v. 3

to the Contractor within twenty (20) days of its receipt of each of the Operations and

Maintenance Plan and the Marketing Plan. The Contractor shall then finalize the Operations and

Maintenance Plan and Marketing Plan no later than seven (7) days thereafter. Neither the review

of nor the failure of the Authority to comment upon the Operations and Maintenance Plan or the

Marketing Plan shall: (1) relieve the Contractor of any of its responsibilities under this

Agreement; (2) be deemed to constitute a representation by the Authority that operating the

Operation or Marketing Product and Metal pursuant to such plans will cause the Operation to be

in compliance with this Agreement or the Contract Standards; or (3) impose any liability upon

the Authority.

D. Governmental Approvals. The Contractor shall assist the Authority, if

applicable, in completing applications and take all other steps that are necessary under

Applicable Law to obtain any Legal Entitlements required to be obtained by the Contractor prior

to the Service Commencement Date for the performance of the Contract Services, and certify to

the Authority that no other Legal Entitlements are required.


AUTHORITY.

The Authority represents and warrants that:

A. Existence and Powers. The Authority is a body politic and corporate

constituting a public benefit corporation validly existing under the Constitution and laws of the

State, with full legal right, power and authority to enter into and perform its obligations under

this Agreement.

B. Due Authorization and Binding Obligation. The Authority has duly

authorized the execution and delivery of this Agreement. This Agreement has been duly

executed and delivered by the Authority and constitutes a legal, valid and binding obligation of

the Authority, enforceable against the Authority in accordance with its terms except insofar as

such enforcement may be affected by bankruptcy, insolvency, moratorium and other laws

affecting creditors’ rights generally.

C. No Conflict. Neither the execution nor the delivery by the Authority of

this Agreement nor the performance by the Authority of its obligations hereunder nor the

consummation by the Authority of the transactions contemplated hereby (1) conflicts with,

violates or results in a breach of any law or governmental regulation applicable to the Authority

or (2) conflicts with, violates or results in a breach of any term or condition of any judgment,

decree, agreement or instrument to which the Authority is a party or by which the Authority or

any of its properties or assets are bound, or constitutes a default under any such judgment,

decree, agreement or instrument.

D. No Litigation. There is no action, suit or other proceeding as of the

Contract Date, at law or in equity, before or by any court or governmental authority, pending or,

to the Authority’s best knowledge, threatened against the Authority which is likely to result in an

unfavorable decision, ruling or finding which would materially and adversely affect the




16 4848-7048-9779, v. 3

execution or delivery of this Agreement or the validity or enforceability of this Agreement or any

other agreement or instrument to be entered into by the Authority in connection with the

transactions contemplated hereby, or which would materially and adversely affect the

performance by the Authority of its obligations hereunder or under any such other agreement or

instrument.

E. No Legal Prohibition. The Authority has no knowledge of any Applicable

Law in effect on the date as of which this representation is being made, exclusive of permitting

requirements, which would prohibit the performance by the Authority of this Agreement and the

transactions contemplated hereby, other than the need to obtain all Legal Entitlements necessary

for operation and maintenance of the Operation.


CONTRACTOR.

The Contractor hereby represents and warrants that:

A. Existence and Powers. The Contractor is a duly organized [list type of

business entity] in good standing organized under the laws of the State of [insert name of state]

and authorized to do business in the State of New York, with full legal right, power and authority

to enter into and perform its obligations under this Agreement.

B. Due Authorization and Binding Obligation. The Contractor has duly

authorized the execution and delivery of this Agreement. This Agreement has been duly

executed and delivered by the Contractor and constitutes the legal, valid and binding obligation

of the Contractor, enforceable against the Contractor in accordance with its terms except insofar

as such enforcement may be affected by bankruptcy, insolvency, moratorium and other laws

affecting creditors' rights generally.

C. No Conflict. Neither the execution nor the delivery by the Contractor of

this Agreement nor the performance by the Contractor of its obligations hereunder (1) conflicts

with, violates or results in a breach of any law or governmental regulation applicable to the

Contractor, (2) conflicts with, violates or results in a breach of any term or condition of any

judgment, decree, agreement or instrument to which the Contractor is a party or by which the

Contractor or any of its properties or assets are bound, or constitutes a default under any such

judgment, decree, agreement or instrument, or (3) will result in the creation or imposition of any

Encumbrance of any nature whatsoever upon any of the properties or assets of the Contractor.

D. No Approvals Required. No approval, authorization, order or consent of

or declaration, registration or filing with any Governmental Body is required for the valid

execution and delivery of this Agreement by the Contractor or the performance of its payment or

other obligations hereunder except such as have been duly obtained or made.

E. No Litigation. There is no action, suit or other proceeding as of the

Contract Date, at law or in equity, before or by any court or governmental authority, pending or,

to the Contractor’s best knowledge, threatened against the Contractor which is likely to result in




17 4848-7048-9779, v. 3

an unfavorable decision, ruling or finding which would materially and adversely affect the

execution or delivery of this Agreement or the validity or enforceability of this Agreement or any

other agreement or instrument entered into by the Contractor in connection with the transactions

contemplated hereby, or which would materially and adversely affect the performance by the

Contractor of its obligations hereunder or by the Contractor under any such other agreement or

instrument.

F. No Legal Prohibition. The Contractor has no knowledge of any

Applicable Law in effect on the date as of which this representation is being made which would

prohibit the performance by the Contractor of this Agreement and the transactions contemplated

hereby, other than the need to obtain all Legal Entitlements necessary for the operation and

maintenance of the Operation.

G. Applicable Law Compliance. Neither the Contractor nor the Guarantor is

in material violation of any law, order, rule or regulation applicable to any Contract Services

provided by the Contractor.

H. Information Supplied by the Contractor and the Guarantor. The

information supplied and representations and warranties made by the Contractor and the

Guarantor in all the submittals made in response to the RFP and in all post-proposal submittals

with respect to the Contractor and the Guarantor (and to the best of its knowledge all information

supplied in such submittals with respect to any Subcontractor) are true, correct and complete in

all material respects.

ARTICLE II.

OPERATION AND MAINTENANCE

SECTION 2.1 OWNERSHIP AND USE OF OPERATION AND SITE

A. Authority Ownership. The Operation and the Site are located in the Town

of Clarkstown (the “Town”), adjacent to a closed landfill that is accessed from Route 303

approximately 0.75 miles from the intersection of Route 303 and Route 59. The Operation and

Site shall be owned by the Authority throughout the Term, and the Contractor shall have no

ownership interest therein. The Contractor shall perform the Contract Services as an

independent contractor and shall not have any legal, equitable, tax beneficial or other ownership

or leasehold interest in the Site or the Operation.

B. Familiarity with Operation/No Contractor Responsibility for Design of

Operation. The Contractor acknowledges that: (1) the Contractor’s agents and representatives

have visited, inspected, observed and are familiar with the Operation, its design, and physical

condition relevant to the obligations of the Contractor pursuant to this Agreement, including

structural and operating conditions, roads, utilities, topographical conditions and historical data

on inbound and outbound tonnages; (2) the Contractor is familiar with all current local

conditions which may be material to the Contractor’s performance of its obligations under this

Agreement (including, but not limited to, transportation, seasons, climate and ambient air;

access, availability, handling, storage and disposal of materials, supplies and equipment; and




18 4848-7048-9779, v. 3

availability and quality of labor and utilities); (3) the Contractor has received, reviewed and

independently verified records and information pertaining to the Operation that it has deemed

necessary to receive, review and verify for the purposes of entering into and performing this

Agreement; and (4) based on the foregoing, the Contractor can manage, operate, maintain, repair

and replace the Operation so as to comply with the Contract Standards, the Performance

Guarantees and the other terms and conditions hereof.

C. Liens and Encumbrances. At all times during the Term, the Contractor

shall keep the Operation free from any and all Liens and Encumbrances arising out of or in

connection with (1) the Contract Services, or (2) any acts, omissions or debts of the Contractor,

its affiliates and Subcontractors, other than Liens arising by operation of law, which shall be

promptly bonded or discharged. If a Lien or Encumbrance is filed against the Operation because

of the Contractor’s relationship with the Operation, the Contractor shall take such action as shall

cause such Lien or Encumbrance to be discharged within thirty (30) days after the validity of

such Lien or Encumbrance shall have been established by a court of competent jurisdiction. If

the Lien or Encumbrance shall be of such nature that the same cannot be completely cured,

remedied or removed of record within said thirty (30) day period, Contractor must diligently

commence the cure, Remediation or removal within said thirty (30) day period and the

Contractor must continue with said cure, Remediation or removal diligently and in good faith.

D. Contractor Property. The Contractor shall have the right to deliver to,

station at, and remove from the Operation personal property of the Contractor for use in

connection with the performance of the Contract Services.

SECTION 2.2 GENERAL CONTRACTOR OPERATION RESPONSIBILITIES

A. Contractor’s Operation Responsibilities. Commencing on the Contract

Date, the Contractor shall, at the Contractor’s own expense, operate and maintain the Operation

and the Equipment in accordance with sound operating practices, the Contract Standards and the

terms and provisions of this Agreement and the Permit. (In connection therewith, and as

outlined in the RFP, the Permit was scheduled to expire in March of 2020. The Authority has

timely applied for a Permit renewal but the NYSDEC has not yet taken action. Accordingly, the

Contractor acknowledges and agrees that it is required to comply with the Authority’s current

Permit until such time as a renewal of same has been obtained.) The Contractor shall receive and

process Acceptable Materials delivered to the Operation, and shall produce and market Product

and/or Metal from such Acceptable Materials, and transport or cause to be transported Product

and/or segregate Metal for markets in accordance with the Performance Guarantees set forth

herein. With the exception of the items provided by the Authority and set forth in Appendix 4,

the Contractor shall furnish, at the Contractor’s own expense, all labor, materials and supplies

necessary for the handling and production of Product from Acceptable Materials. It is

recognized, however, that the Wood Mulching Facility adjacent to the Operation are situated in

close proximity such that site utilization between the Operation and the adjacent Wood Mulching

Facility may overlap. The Contractor shall be responsible for managing its operations on the Site

so as not to interfere with the adjacent Wood Mulching Facility operation and shall coordinate, to

the extent necessary, with the Wood Mulching Facility operator with respect to any overlapping

site utilization. The Contractor shall not use or permit the use of the Operation or Equipment for




19 4848-7048-9779, v. 3

any purposes other than those contemplated by this Agreement. The Contractor shall fully

cooperate with the Authority in connection with the administration of this Agreement and the

performance of the Contract Services.

B. Use of the Operation. During the Term hereof, the Contractor shall not

use or permit the use of the Operation or any activities on the Site for any purpose other than

those contemplated by this Agreement.

SECTION 2.3 EQUIPMENT.

A. Existing Equipment. The Contractor will use Existing Equipment and

dedicated Contractor Equipment at the Operation as identified in Appendix 4. The Contractor

will be required to operate and maintain such Existing Equipment and dedicated Contractor

Equipment in accordance with the Contract Standards, and the provisions hereof.

B. Replacement of Existing Equipment. The Contractor will be entitled to

use the Existing Equipment at the Operation for the remainder of its Useful Life, which shall be

determined by both parties. After such time and upon mutual agreement of the parties, the

Authority will replace the Existing Equipment to the extent such Existing Equipment has reached

the end of its Useful Life, provided the following criteria are met: (i) the Contractor has

maintained such piece of Existing Equipment in accordance with the Contract Standards; and (ii)

the cost of the rebuilding, repairing or replacing an item or component would exceed 50% of the

cost of a new replacement of such piece of Existing Equipment. (In such event, the Contractor

will be required to obtain quotes for replacement equipment from three (3) qualified vendors.)

C. Replacement Equipment at Request of Contractor. The above

notwithstanding, the Contractor may propose in writing to the Authority the Contractor’s

replacement of Equipment for the Operation. No Equipment shall be replaced, however, without

the Authority’s prior written approval, which approval may be withheld in the Authority’s sole

discretion. In the event that any such replacement is reasonably expected to result in a net cost

savings to the Contractor, the parties shall negotiate in good faith the extent to which the cost of

such replacement may be shared with the Authority. The Authority shall have the express right

to reject or condition its approval of any Equipment replacement upon the sharing of net cost

savings expected to result therefrom. For any Equipment purchased or paid for by the Authority,

the Authority shall receive an Authority Offset Credit or a proportionate reduction in the

Operation Charge to offset such additional cost to the Authority.

SECTION 2.4 MAINTENANCE AND REPAIR

A. Maintenance and Repair of the Operation. The Contractor shall, at the

Contractor’s sole cost and expense, use its best efforts to maintain the Operation in the same

working order, condition and repair as of the Service Commencement Date (reasonable wear and

tear, as determined by the Authority, excepted), and in a neat and orderly condition, including

the identifying and undertaking of any repair which is necessary to maintain the Operation in the

same condition as the Operation was in as of the Service Commencement Date (reasonable wear

and tear, as determined by the Authority, excepted), including repairs due to any damage caused




20 4848-7048-9779, v. 3

by the Contractor. The Contractor shall also provide all seasonal maintenance for the Site, which

shall include winter maintenance (snow and ice removal) and summer maintenance (grass cutting

and weed abatement).

1. Required Periodic/Preventive Maintenance. The Contractor shall, at its

sole cost and expense, conduct all required periodic and preventive maintenance of the

Operation consistent with the Operations and Maintenance Plan.

2. Maintenance Logs. The Contractor shall, in accordance with the

Operations and Maintenance Plan, maintain maintenance logs for the Operation.

3. Maintenance not Capital Improvement. Except if due to the occurrence of

an Uncontrollable Circumstance or Authority Fault, no such maintenance or repair shall

constitute a Capital Improvement for which the Authority shall be financially responsible

hereunder.

B. Maintenance and Repair of the Equipment.

1. Periodic/Preventive Maintenance. The Contractor shall, at its sole cost

and expense, conduct all required periodic maintenance and preventive maintenance of all

Equipment consistent with the Operations and Maintenance Plan and the manufacturer’s

recommended preventative maintenance schedule. The Contractor shall notify the

Authority prior to conducting any preventive maintenance to permit visual inspection by

Authority personnel. Preventive maintenance shall be performed by the Contractor in

accordance with the requirements set forth in Section XIV of Appendix 1. The Contractor

shall verify any preventive maintenance that was performed in any given month in the

Monthly Report as further described in Appendix 3.

2. Maintenance Logs. The Contractor shall, in accordance with the

Operations and Maintenance Plan, maintain maintenance logs for all Equipment.

3. Repairs To Equipment.

(a) The Contractor shall be responsible for paying at its sole cost and expense

for all Equipment repairs and replacements; provided, however, the Contractor will not

be responsible for paying for engine internal components, internal transmission

components and torque converters, and non-propulsion hydraulic pumps and motors to

the extent the Contractor has performed preventative maintenance for such items in

accordance with the Manufacturer’s suggested preventative maintenance schedule.

(b) Equipment Tires and Tracks. The Contractor shall be responsible for

maintaining and replacing all Equipment tires and tracks in accordance with the Contract

Standards. The Contractor shall be responsible for repairing Equipment tires and tracks,

and shall replace any damaged tires and tracks. All tire and track inspection,

maintenance, repair and replacement activities undertaken by the Contractor during any

given month shall be included as part of the Monthly Report as further described in

Appendix 3.




21 4848-7048-9779, v. 3

(c) Cleaning of Equipment. All Equipment must be pressure washed with hot

water at a minimum of once per month and all Equipment will be pressure washed and

degreased with hot water at every service interval.

SECTION 2.5 STORAGE OF ACCEPTABLE M ATERIALS AT THE SITE

The Contractor shall not store at the Site amounts of Acceptable Materials that exceed the

allotted amounts allowable for storage on Site pursuant to the Permit and Applicable Law.

SECTION 2.6 OPERATIONS AND MAINTENANCE PLAN

At least fifteen (15) days prior to the Service Commencement Date, the Contractor shall provide

the Authority with an Operations and Maintenance Plan including the minimum requirements set

forth in Appendix 1, and, throughout the Term, shall provide the Authority with any updates,

supplements or revisions as they are made. The Operations and Maintenance Plan shall detail

the procedure for receiving Acceptable Materials, processing and shipment of Product and/or

Metal to markets. The Operations and Maintenance Plan shall include a description of

processing techniques to be employed, odor control techniques to be employed, loading,

unloading and transport of materials for Screening, manpower requirements, handling of

screened materials, and all other aspects of the operation and maintenance of the Operation.

Neither the review of nor the failure of the Authority to comment upon the Operations and

Maintenance Plan shall (1) relieve the Contractor of any of its responsibilities under this

Agreement; (2) be deemed to constitute a representation by the Authority that operating the

Operation pursuant to the Operations and Maintenance Plan will cause the Operation to be in

compliance with this Agreement or the Contract Standards; or (3) impose any liability upon the

Authority. The Contractor shall adhere to the Operations and Maintenance Plan and shall not

make any material changes to the current operations or Operations and Maintenance Plan

without written approval of the Authority.

SECTION 2.7 STAFFING AND TRAINING/KEY PERSONNEL

A. Staffing and Training. The Contractor shall, at its sole cost and expense,

staff the Operation during the Term with the appropriate number of dedicated hourly and salaried

employees consistent with the minimum staffing levels set forth in Appendix 6. The Contractor,

at the request of the Authority, shall discipline or replace, as appropriate, any employee of the

Contractor or any Subcontractor engaging in unlawful, unruly or objectionable conduct on the

Site. The Contractor shall not make any material change in staffing levels and full or part-time

positions from that set forth in Appendix 6, without the prior written approval of the Authority.

B. Key Personnel. The Contractor acknowledges that the employment of

certain key management and supervisory personnel is essential for the Contractor to perform the

Contract Services. Such personnel are set forth in Appendix 6. The Contractor shall utilize such

personnel to perform such services unless such personnel are unavailable for good cause shown.

“Good cause shown” shall not include performing services on other projects but shall include

termination for cause, employee resignation, long-term illness, and death. In the event of any

such permissible unavailability, the Contractor shall, (within seven (7) days), utilize or employ




22 4848-7048-9779, v. 3

qualified temporary personnel of equivalent skill, experience and reputation to perform the

Contract Services and shall employ a permanent replacement employee within a commercially

reasonable time. Any on-site personnel change shall be proposed to the Authority for its review,

consideration and determination of compliance with this subsection with reasonable advance

notice.

SECTION 2.8 SAFETY AND SECURITY

A. Safety. The Contractor shall maintain the safety of the Operation at a

level that is consistent with Applicable Law, the Insurance Requirements, and the Contract

Standards. Without limiting the foregoing, the Contractor shall at its cost and expense: (1) take

all reasonable precautions for the safety of, and provide all reasonable protection to prevent

damage, injury or loss by reason of or related to the operation of the Operation, to (a) all

employees working at the Operation and all other persons who may be involved with the

operation or maintenance of the Operation, (b) all visitors to the Operation, and (c) all

machinery, materials and equipment under the care, custody or control of the Contractor for

performing the Contract Services; (2) establish and enforce all reasonable safeguards for safety

and protection, including posting of danger signs and other warnings against hazards and

promulgating safety regulations; and (3) operate all equipment in a manner consistent with the

manufacturer’s safety recommendations.

B. Fire Prevention and Protection. The Contractor shall take all measures to

reduce the possibility of fires. In the event of a fire at the Operation, the Contractor shall

immediately call 911/Rockland County’s “44 control,” then communicate with the Authority’s

offices to obtain police, fire, or ambulance support. The Operations and Maintenance Plan shall

include a description of measures to be taken to reduce the possibility of fires.

C. Security. The Contractor shall take all reasonable precautions to ensure

that the Operation is secured from unauthorized entry and/or vandalism during and after normal

working hours. All entry gates shall be locked at the end of each working day. The Contractor

shall immediately notify the Authority, verbally or in writing, of any unauthorized entry,

vandalism or criminal activity occurring at the Operation which occurs during or after normal

working hours. The Authority shall have the right in its sole discretion to install a security

camera at an appropriate location at the Operation.

SECTION 2.9 COMPLIANCE WITH APPLICABLE LAW

The Contractor shall perform the Contract Services (including operating and maintaining the

Operation, Site and Equipment) in accordance with this Agreement, the Contract Standards and

Applicable Law, including any content, distribution, licensing, registration, labeling, and other

requirements which may be applicable to the production, packaging, distribution, and marketing

and sale of Product and Metal, and shall cause all Subcontractors to comply with Applicable

Law. The Contractor shall comply with the terms of all registrations or permits, as applicable,

governing the Operation, including the Operation registration issued by the NYSDEC. With

respect thereto, in 2017, the NYSDEC issued revised Part 360 Regulations. As set forth in the

RFP, the NYSDEC has advised the Authority, however, that the revised Part 360 Series




23 4848-7048-9779, v. 3

Regulations will not apply to the Operation until the earlier of (i) May 3, 2021, or (ii) the

issuance of additional rules by the NYSDEC. As such, the Contractor acknowledges and agrees

that (i) it shall comply with the revised Part 360 Regulations as they affect the Operation, and (ii)

the revised Part 360 Regulations shall not be considered a Change in Law, regardless of when

any provision contained in the Part 360 Regulations in effect as of the Contract Date is

implemented and/or ultimately impacts the Operation, including all administrative and reporting

requirements. The Contractor shall provide the Authority (1) immediately upon receipt thereof, a

true, correct and complete copy of any written notice of non-compliance with Applicable Law,

and true and accurate transcripts of any oral notice of non-compliance with Applicable Law,

issued or given by any Governmental Body, and (2) immediate written notice describing the

occurrence of any event or the existence of any circumstance which may result in any such non-

compliance, or of any Legal Proceeding alleging such non-compliance. Except to the extent

excused by Uncontrollable Circumstances or Authority Fault, if the Contractor fails at any time

to comply with Applicable Law with respect to the Contract Services, the Contractor, without

limiting any other remedy available to the Authority upon such an occurrence, and

notwithstanding any other provision of this Agreement, shall (1) immediately, at its sole cost and

expense, correct such failure and resume compliance with Applicable Law; (2) bear all “Loss-

and-Expense” of Contractor and the Authority resulting therefrom; (3) pay or reimburse the

Authority for any resulting damages, fines (including liquidated damages), assessments, levies,

impositions, penalties and other charges; (4) make all changes in operating and management

practices which are necessary to assure that the failure of compliance with Applicable Law will

not recur; and (5) comply with any corrective action plan filed with or mandated by any

Governmental Body in order to remedy the Contractor's failure to comply with Applicable Law.

SECTION 2.10 OPERATING LEGAL ENTITLEMENTS

The Contractor, at its own expense, shall supply all data and information to the Authority in a

timely manner, and such data and information shall be correct and complete in all material

respects, which may be required by Applicable Law or to obtain a Legal Entitlement. The

Authority, at its sole cost and expense, shall make all filings, applications and reports necessary

to obtain and maintain the registration for the Operation, and any permits that may be required to

be made, obtained or maintained under Applicable Law in order to operate or expand the

Operation. The Contractor shall record and report all information required by regulatory

agencies and timely pay any fines imposed upon the Contractor and/or the Authority resulting

from the Contractor’s non-compliance. Any notices of violation and/or penalty assessments for

non-compliance by the Contractor will be reported to the Authority either on the same day as the

event or on or before the next business day following the event.

SECTION 2.11 ACCESS AND RIGHT TO INSPECT OPERATION

A. No Access from Route 59. The Contractor shall not access or permit

others to access the Operation from Route 59.

B. Authority Right to Access and Inspect Operation . The Authority, its

representatives, employees, agents and consultants, and representatives of the Town of

Clarkstown, Rockland County, and the state and federal government shall have at any time




24 4848-7048-9779, v. 3

during the Term, the right of access to the Operation and Site to inspect, monitor or review the

operations and maintenance activities.

SECTION 2.12 AUTHORITY CORRECTIVE ACTION

The Authority shall have the right, but not the obligation, to perform any operating obligation of

the Contractor that the Contractor fails to immediately perform after receipt of reasonable notice

by the Authority. If the Authority exercises this right, the Authority shall be entitled to recover

from the Contractor all costs and expenses related to the performance of such corrective action.

Notwithstanding anything to the contrary set forth in Section 10.14 of this Agreement, the

Authority shall be entitled to provide notice by electronic mail (e-mail) to the Contractor

regarding any operational or maintenance issues as set forth in this Agreement including, but not

limited to, any items further described in Appendix 1 (Operation Plan), and the Contractor agrees

to accept such notice and to take any and all action necessary as requested or required in such

notice.

ARTICLE III.

OPERATION PERFORMANCE

SECTION 3.1 RECEIPT AND PROCESSING OF ACCEPTABLE MATERIALS

A. Delivery and Processing. The Contractor shall receive and process at the

Operation all Acceptable Materials delivered to the Operation by or on behalf of the Authority,

up to the permitted daily capacity and permitted annual capacity at the Operation. (As of the

Contract Date, the daily permitted capacity at the Operation is three hundred and fifty (350) Tons

per day, and the annual permitted capacity is one hundred thousand (100,000) Tons; however, it

is anticipated that the NYDEC will increase the daily permitted capacity upon its issuance of the

pending Permit renewal requested by the Authority.) The Contractor may, only in the event it

has received the prior approval of the Authority, refuse delivery of (i) any Acceptable Materials

which would cause the Operation to exceed its permitted capacity as of the date of such delivery,

(ii) any Acceptable Materials which are not delivered by Haulers, (iii) any Acceptable Materials

delivered at hours outside the Operation Receiving Hours and mutually agreed upon times of

delivery, (iv) any Acceptable Materials delivered by Haulers that contain Hazardous Waste in

any quantities, (v) any load of noncompliant Acceptable Materials delivered by Haulers (i.e.,

loads that contain more than fifteen percent (15%) of any combination of Unacceptable

Materials, brick, rock and soil; provided, however, that the amount of allowable soil does not

exceed one percent (1%) of such fifteen percent (15%) amount), (vi) any load of Acceptable

Materials that contains more than ten percent (10%) Oversized Materials, and (vii) any

Acceptable Materials which cannot be processed at the Operation due to a partial or complete

shutdown caused by Uncontrollable Circumstances or Authority Fault.

B. Visual Inspections. The Contractor shall visually inspect all Acceptable

Materials delivered to the Operation and shall identify and remove, to the extent reasonably

practicable, obvious items of Unacceptable Material that have been mixed with the Acceptable

Materials. The Contractor shall not include Unacceptable Material in the Acceptable Materials

storage piles.




25 4848-7048-9779, v. 3

C. Treatment of Rejects. The Contractor shall transport Rejects from the

Operation to the Transfer Station. The Contractor shall be responsible for all costs associated

with the loading, transportation and disposal of all materials identified as Rejects, including the

payment of all tipping fees. The Contractor may dispose of Rejects constituting up to fifteen

percent (15%) of the total Tons of Acceptable Materials delivered at the Operation per Billing

Period at no charge at the Transfer Station. For Rejects over fifteen percent (15%) of the Tons

delivered at the Operation per Billing Period, the Contractor shall pay or cause to be paid to the

Authority the cost of disposal of such Rejects. To the extent Rejects cannot be accepted at the

Transfer Station, the Contractor shall be responsible for their lawful disposal elsewhere, subject

to the Authority’s approval.

D. Hazardous Waste. The Contractor shall not allow or knowingly permit the

delivery of or the storage of Hazardous Waste at the Site (including any contaminated soil

delivered to the Site). The Authority and the Contractor shall use all reasonable efforts to

identify any person responsible for delivery to, or abandonment at, the Operation of any

Hazardous Waste and shall require such person to bear all costs and liabilities associated with the

removal, transportation, and disposal thereof. The Authority and the Contractor will take all

reasonable steps necessary to seek enforcement of all Applicable Law regarding deliveries of

materials for processing. If the Contractor discovers that Hazardous Waste has been delivered to

the Operation, it will isolate such waste from the feedstock and give immediate notice of such

discovery to the Authority, the DEC and all other appropriate Governmental Bodies, as required

by Applicable Law. The Contractor will, in the most expeditious manner possible under the

circumstances, cause such Hazardous Waste to be removed from the Operation and transported

to and disposed of at a disposal site selected by the Contractor and approved by the Authority,

and lawfully permitted to receive and dispose of such Hazardous Waste.

E. Schedule of Crushing Operations. The Contractor shall conduct Crushing,

Screening and selling operations Monday through Saturday. Acceptable Materials shall be

crushed within three (3) days of receipt (in accordance with scalehouse records), and crushed

materials shall be screened so as to avoid the creation of large stockpiles of either Acceptable

Materials or crushed materials.

F. Materials Surcharge. The Contractor shall immediately notify the

Authority operations staff via telephone, promptly followed by email confirmation if the

Contractor receives a load from a Hauler of Acceptable Materials that contains Oversized

Materials in amounts in excess of ten percent (10%) by load. The Authority may inspect such

load to determine whether it contains Acceptable Materials that contain Oversized Materials in

amounts in excess of ten percent (10%) by weight of the incoming load. If the Authority agrees

that the load contains Oversized Materials in amounts in excess of ten percent (10%) by volume

of the incoming load or if the Authority fails to inspect such load, the Contractor may reject the

load or charge a surcharge to the Authority. The surcharge amount shall be agreed to by the

Parties during the preparation of the annual Authority budget to reimburse the Contractor for the

Contractor’s additional costs of processing such materials (the “Materials Surcharge”). If such

processing costs are greater than the Materials Surcharge, the Contractor shall pay such

additional costs. The Contractor must note on the applicable weigh ticket that a surcharge should

be imposed at the Authority scale house upon weighing out.




26 4848-7048-9779, v. 3

G. No Contractor Tipping Charges. The Contractor shall not impose any

tipping fee for its own account.

H. No Authority Responsibility or Liability for Failure to Deliver Acceptable

Materials. The Authority shall not be required to deliver or cause the delivery of any amounts of

Acceptable Materials to the Operation and shall not be liable in damages for any failure to so

deliver or cause the delivery of Acceptable Materials.

I. Weighing at Authority Scales and Determination of Tonnage Processed.

The Authority shall operate and maintain the Authority scales and weigh all vehicles containing

Acceptable Materials or Product entering and exiting the Operation. The Contractor and its

agents shall have the right to monitor weighing activities and to check and verify the proper

calibration of the Authority scales. The number of Tons of Acceptable Materials delivered to the

Operation, processed, Product marketed, Metal marketed, and Rejects disposed of shall be

determined by the Authority’s weigh records.

J. Estimates During Incapacitation. The Operation shall not receive

Acceptable Materials or transport Product during times when the Authority scales are not being

operated, except as approved by the Authority in its sole discretion. If so approved, the

Authority and the Contractor shall estimate the quantity of Acceptable Materials delivered on the

basis of truck volumes and estimated data obtained through historical information.

SECTION 3.2 RECEIVING HOURS AND OPERATING HOURS

A. Receiving Hours. On and after the Contract Date, the Contractor shall

keep the Operation open for receiving and processing Acceptable Materials, and Marketing of

Product and Metal (1) from 7:00 A.M. until 4:00 P.M. Monday through Friday, and 7:00 A.M. to

12:00 P.M. Saturday (“Operation Receiving Hours”), as agreed upon by the Parties and (2)

during such additional hours (“Extraordinary Delivery Hours”) as may be required on account of

a natural disaster, or an emergency condition or as required by Applicable Law. If requested by

the Authority, the Contractor shall operate the Operation during such additional hours and shall

be compensated in accordance with Appendix 5 plus two hundred dollars ($200) per day.

B. Additional Receiving Hours. Either the Authority or the Contractor may

request that the Operation be available for receipt of Acceptable Materials in excess of the

Operation Receiving Hours. Upon the mutual approval of both Parties (such approval which

shall not be unreasonably withheld), and independent of the Party that requested such additional

hours, the Authority shall compensate the Contractor in accordance with Appendix 5 plus two

hundred dollars ($200) per day so long as (i) such additional receiving hours comply with

Applicable Law (including receipt of NYSDEC approval, if required) and, (ii) if the additional

Operation Receiving Hours are requested by the Contractor, the Contractor agrees to pay

overtime hourly rates (plus any applicable fringe benefits) to the Authority scale house

employees.




27 4848-7048-9779, v. 3

C. Holidays. The Authority shall observe only the following six (6) holidays

each year: New Year’s Day, Memorial Day, Independence Day, Labor Day, Thanksgiving Day,

and Christmas Day. The Authority scales shall be closed on the above Authority holidays.

SECTION 3.3 OPERATION PERFORMANCE GUARANTEES

A. Processing Guarantees. The Contractor makes the following processing

guarantees:

1. Acceptable Materials Acceptance and Processing Guarantee. The

Contractor guarantees (i) that it will process all incoming Acceptable Materials within

three (3) operating days from its receipt at the operation, and (ii) that it will process all

Acceptable Materials delivered to the Operation up to one hundred thousand(100,000)

Tons of Acceptable Materials in any Contract Year (the annual permitted capacity).

2. Product Guarantee. The Product Guarantee is the Contractor’s guaranteed

quantity of screened Product produced in Tons per one hundred Tons of Acceptable

Materials Processed. The Contractor guarantees that it shall produce one hundred percent

(100%) screened Product (not including Rejects) during any Contract Year. Compliance

with such guarantee shall determined based on an annual average basis.

B. Product and Metal Marketability Guarantee. The Contractor shall

guarantee to market one hundred percent (100%) of the Product produced (less product sold by

the Authority directly under a bulk purchase agreement) and one hundred percent (100%) of

Metal in any Contract Year, and that such marketed Product and Metal shall be put to Beneficial

Use. The Contractor shall market such Product to ensure that no Product remains on Site for a

duration or in a manner that violates the Permit requirements. Failure to successfully comply

with such Guarantee will result in the payment of liquidated damages to the Authority as set

forth in Appendix 11.

C. Environmental Guarantees. The Contractor makes the following

environmental guarantees:

1. No Nuisance Covenant. The Contractor shall operate and maintain the

Site so as not to create a public nuisance. The Contractor shall operate the Site in a

manner so as to minimize the generation of fugitive dust (including the supply and

utilization of water misting apparatus) and associated odors with no obvious and

persistent fugitive dust or associated odors emanating from the Operation. The

Contractor shall comply with all Applicable Law, including any requirements of

NYSDEC, OSHA, PESH, the Rockland County Health Department and/or the Authority

directive relating to nuisance dust and/or odor. The Contractor shall expeditiously

Remedy any nuisance condition that occurs, including the modification of any Contractor

operating and maintenance procedures, as necessary.

2. Litter Control. The Contractor shall maintain the Operation in a neat and

orderly condition at all times, consistent with the Contract Standards. The Contractor




28 4848-7048-9779, v. 3

shall take adequate measures to minimize the migration of litter off-site; notwithstanding

the foregoing, the Contractor shall not be responsible for litter originating in the

Authority’s recycling drop-off area.

3. Lawful and Proper Handling Storage and Disposal of Hazardous

Substances. The Contractor shall screen all incoming materials for Hazardous Waste,

hazardous substances and petroleum or petroleum by-products. All materials discovered to

contain Hazardous Waste or hazardous substances or are contaminated by petroleum or

petroleum by-products shall be lawfully and properly handled, stored and disposed of by

the Contractor in accordance with the Operations and Maintenance Plan, the Contract

Standards and Applicable Law

4. Material Contamination. The Contractor shall segregate each of

Acceptable Materials, Product and Metal during storage and handling so as to prevent

contamination of other materials in storage or being processed at the Site and the

contamination of wood processing and mulch at the adjacent Wood Mulching Facility.

SECTION 3.4 FAILURE TO MEET PERFORMANCE GUARANTEES.

A. Acceptable Materials Acceptance and Processing Guarantee. Except to

the extent caused by an Uncontrollable Circumstance, in the event the Contractor fails to comply

with the Acceptable Materials Acceptance and Processing Guarantee, the Contractor shall be

assessed liquidated damages in an amount equal to the number of Tons of Acceptable Materials

received but not processed during the previous day times the Operation Charge.

B. Product and Metal Marketability Guarantee. In the event the Contractor

fails to Market one hundred percent (100%) of Product and/or Metal and such Product remains

on site for a duration or in a manner that violates the Permit requirements, the Contractor shall

pay the Authority liquidated Damages in the amount of $1,000 per day for each day that any

such Product is stored on-site in excess of the Permit conditions or requirements as set forth in

Appendix 11 in addition to any other rights or remedies of the Authority set forth in this

Agreement.

C. Environmental Guarantees. In the event the Contractor fails to comply

with the Environmental Guarantee, the Contractor shall indemnify, hold harmless, defend and

release the Authority and provide full reimbursement to the Authority for all costs, fines,

penalties and fees incurred by the Authority and/or the Contractor.

SECTION 3.5 DEVELOPMENT OF NEW PRODUCT STREAM.

The Contractor shall work to develop a new Product stream at the Operation. Any new

marketable material developed by the Contractor shall be subject to the Authority’s approval, in

its sole discretion. Upon such approval, the Parties shall mutually establish any additional

operational requirements, performance guarantee(s) and related contractual provisions associated

with the development of such new material to be marketed by the Contractor, including

responsibility for the provision of equipment required for the production of such new material.




29 4848-7048-9779, v. 3

The creation of a new Product stream at the Operation; however, shall not entitle the Contractor

to an increase in the Operation Charge payable by the Authority.

SECTION 3.6 UNCONTROLLABLE CIRCUMSTANCES GENERALLY

A. Performance Excused. Except as otherwise specifically provided in this

Agreement, neither the Authority nor the Contractor shall be liable to the other for any failure or

delay in performance of any obligation under this Agreement if such failure is solely due to the

occurrence of an Uncontrollable Circumstance.

B. Notice, Mitigation. The Party experiencing an Uncontrollable

Circumstance shall notify the other Party by telephone and in writing, on or promptly after the

date the Party experiencing such Uncontrollable Circumstance first knew of the commencement

thereof, followed within fifteen (15) days by a written description of (1) the Uncontrollable

Circumstance and the cause thereof (to the extent known), (2) the date the Uncontrollable

Circumstance began, its estimated duration, the estimated time during which the performance of

such Party’s obligations hereunder will be delayed, and the impact, if any, on the Service

Commencement Date, (3) the estimated amount, if any, by which the Operation and Maintenance

Fee may need to be adjusted as a result of such Uncontrollable Circumstance, (4) its estimated

impact on the other obligations of such Party under this Agreement and (5) potential mitigating

actions which might be taken by the Contractor or Authority and any areas where costs might be

reduced and the approximate amount of such cost reductions. Each Party shall provide prompt

written notice of the cessation of such Uncontrollable Circumstance. Whenever such act, event

or condition shall occur, the claiming to be adversely affected thereby shall, as promptly as

reasonably possible, use all reasonable efforts to eliminate the cause therefore, reduce costs and

resume performance under this Agreement. While the delay continues, the Contractor or

Authority shall give notice to the other Party, before the first day of each succeeding month,

updating the information previously submitted. The affected Party shall furnish promptly (if and

to the extent available) any additional documents or other information relating to the

Uncontrollable Circumstance reasonably requested by the other Party.

C. Conditions to Operation and Maintenance Fee and Schedule Relief. If and

to the extent that Uncontrollable Circumstances interfere with, delay or increase the cost of the

Contractor’s performance of the Contract Services, and the Contractor has given timely notice as

required by subsection 3.6(B), the Contractor may be entitled to an increase in the Operation and

Maintenance Fee or an extension of any schedule for performance equal to the amount of the

increased cost or the time lost as a result thereof. In the event that the Contractor is entitled to

any Operation and Maintenance Fee increase or schedule relief on account of any Uncontrollable

Circumstance, the Contractor shall furnish the Authority written notice of the specific relief

requested and detailing the event giving rise to the claim within thirty (30) days after the giving

of notice delivered pursuant to subsection 3.6(B). Within thirty (30) days after receipt of such a

timely submission from the Contractor, the Authority shall issue a written concurrence or denial

of the Contractor's claim for Operation and Maintenance Fee increase or schedule relief, and the

reasons therefore.




30 4848-7048-9779, v. 3

D. Acceptance of Relief Constitutes Release. The Contractor’s acceptance of

any Operation and Maintenance Fee increase or schedule relief under this Section shall be

construed as a release of the Authority by the Contractor (and all persons claiming by, through or

under the Contractor) for any and all Loss-And-Expense resulting from, or otherwise attributable

to, the event giving rise to the relief claimed.




31 4848-7048-9779, v. 3

E.

ARTICLE IV.

PRODUCT, METAL AND MARKETING

SECTION 4.1 MARKETING PLAN

The Contractor shall submit a final Marketing Plan, as part of the Operations and Maintenance

Plan, substantially in the form required in Appendix 1, fifteen (15) days prior to the Service

Commencement Date, for review and comment by the Authority. The Contractor shall submit to

the Authority a revised Marketing Plan not later than twenty (20) days after receiving Authority

comments. The Authority shall approve any major change in the Contractor’s marketing

practices.

SECTION 4.2 MARKETING RESPONSIBILITIES

A. Contractor Responsibilities, Generally. It is the Contractor’s

responsibility to produce Product and to successfully market all of the Product and Metal

produced at the Operation (less RCA Product purchased by the Bulk Purchase Contractor) (i) in

accordance with the approved Marketing Plan to maximize revenues, and (ii) in compliance with

the Permit requirements regarding the storage and stockpiling of material. In the event the

Contractor fails to successfully market Product and Metal, and such materials remain on the Site

in violation of the Permit requirements, the Contractor shall pay liquidated damages to the

Authority in the amount of one thousand dollars ($1,000) per day for each day that any Product

or Metal is stored on site longer than the allowable time specified in the Permit. The Contractor

shall ensure that the Product meets all applicable NYSDEC regulatory criteria under NYCRR

Part 360 as well as NYSDOT specifications where applicable. The Contractor shall bear the

entire risk and expense of, and have sole and absolute responsibility for the marketing,

distribution, conveyance, transfer, transportation, handling, storage, use, sale, and disposal of

Product and Metal including all costs, charges, taxes and associated liabilities. The Contractor

shall perform its obligations and enforce its right to receive payments due under applicable

Product and/or Metal purchase agreements, copies of which shall be furnished to the Authority.

The Contractor shall promptly notify the Authority of any material dispute with or claim made

by a Product and/or Metal purchaser against the Contractor arising out of any Product or Metal

sales or disposition which could have a material and adverse effect on the Authority.

B. New Materials. The Contractor shall use all reasonable efforts to

investigate, research, develop, and maintain new markets for Product and Metal produced by the

Operation. If necessary, in connection with the Product and Metal Marketability Guarantee, the

Contractor shall make any payments, provide all indemnities, and assume any liabilities, without

limitation, as to amount, which may be required from time to time to induce Product and/or

Metal users to reasonably receive and assume possession and ownership of the Product and/or

Metal, including all transportation and other related costs.

C. Weighing Procedures for Marketed Materials. The Contractor shall ensure

that all Product and Metal are weighed at the Authority’s scales. The Contractor shall, at its sole




32 4848-7048-9779, v. 3

cost and expense, transport or cause to be transported Product and/or Metal from the Operation

to Product and/or Metal purchasers, as applicable. The risk of damage or injury from, and

liability for Product and/or Metal shall pass from the Authority to the purchaser upon leaving the

Site. The Contractor shall maintain complete and accurate records of all sales and transportation

accounts. Upon the Authority’s request, the Contractor shall furnish to the Authority for review

or copying all documentation maintained by the Contractor as to Product and Metal weighing,

sampling, testing, mixing, additives, batching, marketing, distribution, conveyance, transfer,

transportation, handling, storage, use, sales, and disposal.

D. Minimization of Rejections. The Contractor shall take all necessary steps

to minimize rejections of Product and/or Metal by Product and/or Metal purchasers. If the

Authority or the Contractor is required by any contract or any Legal Proceeding arising out of the

marketing or disposal of Product and/or Metal to recover or remove any Product and/or Metal

from its disposal location and treat and re-market or re-dispose of such Product and/or Metal for

any reason, the Contractor shall perform such services and activities at no cost to the Authority.

E. Limitations on Certain Marketing Activities.. The Contractor shall: (i)

follow the sales procedure set forth in Appendix 7 and (ii) not Market, sell, or dispose of Product

and/or Metal from the Operation on terms or conditions that produce a benefit to the Contractor

to the Authority’s detriment either in its sales, or pricing arrangements. The Contractor shall not

ship any Product and/or Metal that do not meet the specifications and requirements of Applicable

Law. At the end of the Term of this Agreement, the Contractor shall promptly furnish the

Authority with copies of all current Product and/or Metal purchase agreements and assign such

agreements to the Authority.

SECTION 4.3 SALES REVENUES

A. Product and Metal Sales Revenues. The Authority shall receive one

hundred percent (100%) of all Product Sales Revenues and all Metal Sales Revenues.

B. Bulk Rate Sales Revenues. The Authority shall have the right to sell RCA

Product directly at its discretion, and shall notify the Contractor when it requires such Product

for sale. Upon such notice, the Contractor shall make the requested Product available as soon as

practicable. To the extent such RCA Product is not readily available, the Contractor shall

provide such RCA Product, following the Authority’s request, at a minimum rate of 2,600 Tons

per 7-day period.

SECTION 4.4 SAMPLING, TESTING, AND TRACKING

The Contractor shall sample, perform at a minimum sieve and size gradation analyses on a

quarterly basis, and track the distribution of Acceptable Materials, all Product and Metals, at its

sole cost and expense, to the extent required by Applicable Law, the Contract Standards and the

Product and Metal Marketability Guarantee as set forth in the Operations and Maintenance Plan.

Such sampling and testing shall cover the best and highest use of Product and Metals, the results

of which shall be included in the Contractor’s Monthly Report to the Authority. The results of




33 4848-7048-9779, v. 3

the tracking requirements set forth herein shall also be included in the Contractor’s Monthly

Report to the Authority.

SECTION 4.5 BENEFICIAL USE

The Contractor shall submit to the Authority in its Monthly Reports, a certification that all

Product and/or Metal shipped from the Operation during the month has been used in compliance

with the Product and Metal Marketability Guarantee and the requirements of the Part 360

Regulations. The Contractor shall furnish summary reports as to the general categories and

locations of Beneficial Use to which such Product and Metal have been put and its major

purchasers and users. Upon its request, the Contractor will furnish the Authority for review or

copying all documentation maintained by the Contractor as to Product weighing, sampling,

testing, mixing, additives, batching, marketing, conveyance, transfer, transportation, handling,

storage, use, sales, and disposal. The Contractor shall be responsible for ensuring that all

Product is put to Beneficial Use and shall assume all liability in the event that such Product is not

Beneficially Used and/or not used in compliance with Applicable Law.

SECTION 4.6 CHANGE IN LAW AFFECTING PRODUCT

The Contractor agrees to consult with the Authority regarding the nature and effect of any

Change in Law that affects the Contractor’s obligations with respect to the Product and Metal

Marketability Guarantee. The Parties agree to consider any possible mitigation of the impact,

including reprocessing Product, batch blending, or making alternative Beneficial Uses of Product

and/or Metal, as applicable. The Contractor shall be relieved of its obligation to comply with the

Product and Metal Marketability Guarantee, to the extent of and for any period during which

such Change in Law prevents, adversely affects, or makes more costly the Contractor’s ability to

comply with the Product and Metal Marketability Guarantee, except when:

1. compliance can reasonably be achieved without incurring additional cost,

expense, or liability (unless the Authority agrees to bear any such additional cost,

expense, or liability), or

2. the Change in Law requires that the Product and/or Metal meet a regulatory

stringency threshold that is no more stringent than the Product and/or Metal

regulatory stringency threshold previously established pursuant to this

Agreement.

In the event of and during any period which the Contractor is relieved of its obligation to comply

with the Product and Metal Marketability Guarantee:

1. the Authority shall have the right to approve, on a timely basis, the alternative

uses to which Product and Metal are put, and

2. if disposal is required or if the Authority does not timely approve alternate uses,

the Contractor shall arrange for and the Authority shall pay for transportation and




34 4848-7048-9779, v. 3

disposal of Product and Metal that the Contractor is not required to Beneficially

Use.

The Contractor shall not be entitled to any additional compensation due to lost Product Sales

Revenues and/or lost Metal Sales Revenues by reason of any Change in Law affecting the use of

Product and/or Metal. The above notwithstanding, and as noted in Section 2.9 hereof, the Part

360 Regulations revised in 2017 and their application shall not be considered a Change in Law,

regardless of when any provision contained therein ultimately impacts the Operation, the

Contractor or the Authority.

SECTION 4.7 PRODUCT AND METAL MARKETABILITY GUARANTEE

The Product and Metal Marketability Guarantee shall apply regardless of:

1. the existence or non-existence of profitable or unprofitable markets for Product

and/or Metal,

2. the distance from the Operation of any potential Product and/or Metal purchaser

or user,

3. the occurrence of any Uncontrollable Circumstance or of any Change in Law,

except, as provided herein; or

4 whether any Hazardous Waste or Unacceptable Material has been delivered to

and accepted at the Operation.

SECTION 4.8 LANDFILL DISPOSAL OF ACCEPTABLE MATERIALS

The Contractor shall pay, without any reimbursement from the Authority, all transportation,

transfer and disposal fees, costs, and expenses incurred in connection with any Product produced

by processing and/or Metal that is disposed of in a landfill without Authority approval, in

violation of the Product and Metal Marketability Guarantee or Applicable Law. In addition to

any other rights or remedies of the Authority set forth in this Agreement, the Contractor shall

also pay liquidated damages to the Authority in the amount of five thousand dollars ($5,000) for

each load (or partial load) of Product and/or Metal that is disposed of in a landfill without

Authority approval, in violation of the Product and Metal Marketability Guarantee or Applicable

Law.

ARTICLE V.

OPERATIONS AND MAINTENANCE FEE

SECTION 5.1 COST OF OPERATIONS

The Operations and Maintenance Fee and the Product Marketing Charge shall be the sole

compensation to the Contractor for the Contract Services.




35 4848-7048-9779, v. 3

A. Formula. Commencing with the first Billing Period after the Service

Commencement Date and for each Billing Period thereafter, the Authority shall pay the

Contractor an Operations and Maintenance Fee for the Contractor’s performance of the Contract

Services in accordance with the following formula:

OF = OC + PMC - PGC - AOC ± UCC ± OFA

Where

OF = Operations and Maintenance Fee

OC = Operation Charge (per Ton)

PMC = Product Marketing Charge

PGC = Performance Guarantee Charge

AOC = Authority Offset Credits

UCC = Uncontrollable Circumstance Credit or Charge

OFA = All Other Operations and Maintenance Fee Adjustments

± = plus or minus

B. Operation Charge. The Authority shall pay the Contractor the Operation

Charge (“OC”) amounts per Ton set forth in Appendix 5 as full compensation for processing

Acceptable Materials. The OC shall be paid for each Billing Period for the tonnage of

Acceptable Materials received in that Billing Period, up to one hundred thousand (100,000) Tons

per Contract Year or until the NYSDEC Permit amounts have been received in the Contract

Year. When such amount of Acceptable Materials have been received in a Contract Year, and it

has been determined by the Authority that receiving such Acceptable Materials shall cease for

the Contract Year, the OC payments to the Contractor for that Contract Year shall cease.

C. Performance Guarantee Charge. The Performance Guarantee Charge

(“PGC”) shall be a credit to the Authority based on the Contractor’s failure to meet the

Acceptable Materials Acceptance and Processing Guarantee within any Contract Year. The PGC

shall be calculated by subtracting the actual Acceptable Materials Tonnage processed in a

Contract Year from the Contractor’s Acceptable Materials Acceptance and Processing Guarantee

and if the result is greater than 250 Tons, multiplying the result by $50.00 per Ton. The PGC

shall be calculated at the end of each month and applied as an adjustment in the first Billing

Period of the subsequent month.

In any Contract Year in which the Authority delivers a quantity of Acceptable Materials that is

less than the Contractor’s Acceptable Materials Acceptance and Processing Guarantee, the PGC

shall be calculated based on the actual quantity of Acceptable Materials delivered rather than on

the Contractor’s Acceptable Materials Acceptance and Processing Guarantee. In any Contract

Year in which the Authority delivers a quantity of Acceptable Materials that is less than the

Contractor’s Acceptable Materials Acceptance and Processing Guarantee, the PGC shall be

calculated by subtracting the actual Tons of Acceptable Materials processed in such Contract

Year from the actual Tons of Acceptable Materials delivered.




36 4848-7048-9779, v. 3

D. Product Marketing Charge. The Authority shall receive all revenues from

the sale of Product and Metal. The Product Marketing Charge payable by the Authority to the

Contractor shall serve as compensation to the Contractor for the successful marketing of Product

and Metal. The Product Marketing Charge in each Billing Period shall be an amount equal to the

applicable per Ton amount times the number of Tons of Product successfully marketed by the

Contractor during such Billing Period (this number shall not include the number of Tons of

Product sold by the Authority under a bulk purchase agreement).

E. Authority Offset Credits. The Authority Offset Credit (“AOC”) shall be

an amount equal to the cost to the Authority of any fines or for performing any work arising from

a failure by the Contractor or any Subcontractor to comply with the Performance Guarantees,

including the Environmental Guarantees, or to timely perform its obligations under this

Agreement.

F. Uncontrollable Circumstances Credit or Charge. The Uncontrollable

Circumstance Credit or Charge (“UCC”) in each Contract Year shall be the net amount of any

(1) amounts payable by the Authority for increased operation and maintenance costs incurred

during such Billing Period on account of Uncontrollable Circumstances (but not any costs due to

delays caused by Uncontrollable Circumstances) which are chargeable to the Authority, and (2)

the net aggregate operation and maintenance cost savings achieved by the Contractor in

mitigating the effects of the occurrence of an Uncontrollable Circumstance.

The Contractor’s share in the costs resulting from an Uncontrollable Circumstance shall be the

first five (5) percent of the Uncontrollable Circumstances costs up to an aggregate of ten

thousand dollars ($10,000) per Contract Year for each occurrence of an Uncontrollable

Circumstance. The cost of insurance deductibles shall not be included in the Contractor’s share

of Uncontrollable Circumstances within such limits.

G. All Other Operations and Maintenance Fee Adjustments. All other

Operations and Maintenance Fee Adjustments (“OFA”) shall be the amount of any other

adjustments to the Operations and Maintenance Fee required hereby, including any mutually

agreed-upon fees for the Materials Surcharge. The Contractor shall not be paid such agreed-

upon fees for the Materials Surcharge unless a surcharge is noted on the applicable weigh ticket

in accordance with subsection 3.1 (F) of this Agreement.

ARTICLE VI.

BILLING OF THE OPERATION AND MAINTENANCE FEE

SECTION 6.1 BILLING OF THE OPERATION AND MAINTENANCE FEE

A. Billing Statements and Payment. For each Billing Period the Contractor

shall render a statement (a “Billing Statement”) to the Authority within fifteen (15) days of the

end of the previous Billing Period, which shall set forth each component of the Operation and

Maintenance Fee. Each Billing Statement shall also include, for such Billing Period, (1) all other

amounts payable by the Authority to the Contractor hereunder, (2) all amounts payable by the

Contractor to the Authority hereunder, and (3) with respect to items (1) and (2) above the




37 4848-7048-9779, v. 3

balance due to or from the Authority (the “Other Payments Balance”). The Contractor shall

provide all information required pursuant to Section 10.1 with each Billing Statement. The

Authority shall pay the Operations and Maintenance Fee and any Other Payments Balance due to

the Contractor within sixty (60) days of receipt of the Billing Statement. Any Other Payments

Balance due to the Authority by the Contractor shall also be paid to the Authority within forty-

five (45) days of receipt of the Billing Statement showing such balance due.

B. Billing Estimates and Adjustments. To the extent that the actual value of

any item in any Billing Statement cannot be accurately determined at the Billing Statement date,

such amount shall be billed on an estimated basis and an adjustment shall be made to reflect the

difference between the estimated amount and the actual amount of such item on the Billing

Statement following the date on which the Contractor learns the exact amount of the item,

including backup documentation sufficient for the Authority to confirm/validate the claimed

cost.

C. Annual Estimates. Ninety (90) days prior to the end of each Contract

Year, the Contractor shall provide to the Authority a written statement setting forth the

Contractor’s reasonable estimate of the aggregate Operations and Maintenance Fee for the next

Contract Year.

SECTION 6.2 ANNUAL SETTLEMENT

A. Annual Settlement. Except as set forth in (B) below, within thirty (30)

days after the end of each Contract Year, the Contractor shall provide the Authority with an

annual settlement statement which sets forth the actual aggregate Operations and Maintenance

Fee payable during the immediately preceding Contract Year, along with a reconciliation of that

amount with the amounts actually paid by the Authority in the Billing Statements during the

immediately preceding Contract Year, including all adjustments to the Operations and

Maintenance Fee and a reconciliation of sales records to sales Tonnages pursuant to the

Authority’s scale records and reconciliation of sales records to sales Tons over the Authority

scale (the “Annual Settlement Statement”).

ARTICLE VII.

BREACH, DEFAULT, TERMINATION

SECTION 7.1 REMEDIES FOR BREACH

The Parties agree that, except as otherwise provided herein with respect to termination rights, in

the event that either Party breaches this Agreement, the other Party may exercise any legal rights

it has under this Agreement and under Applicable Law to recover damages or to secure specific

performance, and that such rights to recover damages and to secure specific performance shall

ordinarily constitute adequate Remedies for any such breach. Neither Party shall have the right

to terminate this Agreement for cause except upon the occurrence of an Event of Default as set

forth in this Article.

SECTION 7.2 EVENTS OF DEFAULT BY THE CONTRACTOR.




38 4848-7048-9779, v. 3

A. Events of Default Not Requiring Notice or Cure Opportunity for

Termination. Each of the following shall constitute an Event of Default on the part of the

Contractor for which the Authority may terminate this Agreement without any requirement of

notice or cure opportunity:

1. Failure to Receive. The failure of the Contractor to receive Acceptable

Materials up to the Acceptable Materials Acceptance and Processing Guarantee at the

Operation during the Contract Year;

2. Failure to Comply with the Performance Guarantees. The failure of the

Contractor to comply with the Performance Guarantees, including the Environmental

Guarantees;

3. Failure to Comply with Applicable Law. The Failure of the Contractor to

comply with Applicable law;

4. Voluntary Bankruptcy. The written admission by the Contractor that it is

bankrupt, or the filing by the Contractor of a voluntary petition under the Federal

Bankruptcy Code, or the consent by the Contractor to the appointment by a court of a

receiver or trustee for all or a substantial portion of its property or business, or the making

by the Contractor of any arrangement with or for the benefit of its creditors involving an

assignment to a trustee, receiver or similar fiduciary, regardless of how designated, of all or

a substantial portion of the Contractor’s property or business;

5. Involuntary Bankruptcy. The final adjudication of the Contractor as

bankrupt after the filing of an involuntary petition under the Bankruptcy Act, but no such

adjudication shall be regarded as final unless and until the same is no longer being

contested by the Contractor nor until the order of the adjudication shall be regarded as final

unless and until the same is no longer being contested by the Contractor nor until the order

of the adjudication is no longer subject to appeal;

6. Failure to Provide or Renew Performance Bond and Required Insurance.

The failure of the Contractor to obtain or maintain in full force and effect, or renew within

thirty (30) days prior to expiration, or otherwise comply with the requirements related to

the provision and maintenance of the Performance Bond, or the Required Insurance, as

security for performance of this Agreement;

7. Unauthorized Assignment or Change in Ownership. Failure to comply

with the requirements set forth in Section 10.11 or Section 10.12 hereof.

8. Violation of the New York Labor Law. A violation of the New York

Labor Law;

9. Loss of Legal Entitlement. The loss of a Legal Entitlement required for

the performance of the Contractor’s obligations under this Agreement; and




39 4848-7048-9779, v. 3

10. Default of Guarantor. The failure of the Guarantor to make any payment

or perform any other obligation under the Guaranty Agreement in a timely manner, or the

failure of the Guarantor to comply with the terms and conditions thereof.

B. Events of Default Requiring Notice or Cure Opportunity for Termination.

The following shall constitute an Event of Default on the part of the Contractor for which the

Authority may terminate this Agreement pursuant to the notice and cure requirements set forth in

(C) below.

1. Material Obligation. The failure or refusal by the Contractor to

substantially perform any other material obligation under this Agreement (other than those

obligations contained in 7.2(A) above);

2. Undisputed Amounts Due and Owing. The failure of the Contractor to

pay or credit undisputed amounts owed to the Authority under this Agreement within thirty

(30) days following the due date for such payment or credit; and

3. Other Performance Failures. Except as otherwise noted in subsection (A)

of this Section, the failure or refusal by the Contractor substantially to comply with a

Performance Guarantee.

C. Notice and Cure Provisions. The Authority shall have the right to

terminate this Agreement for an Event of Default set forth in (B) above if:

1. The Authority has given prior written notice to the Contractor stating that a specified

failure or refusal to perform exists which will, unless corrected, constitute a material breach of

this Agreement on the part of the Contractor and which will, in its opinion, give the Authority a

right to terminate this Agreement for cause under this Section unless such default is corrected

within a reasonable period of time, and

2. The Contractor has neither challenged in an appropriate forum the Authority’s conclusion

that such failure or refusal to perform has occurred or constitutes a material breach of this

Agreement nor corrected or diligently taken steps to correct such default within a reasonable

period of time, but not more than sixty (60) days, from receipt of the notice given pursuant to

clause (1) of this subsection (but if the Contractor shall have diligently taken steps to correct

such default within a reasonable period of time, the same shall not constitute an Event of Default

for as long as the Contractor is continuing to take such steps to correct such default; provided,

however, that if such breach remains uncured for 90 days regardless of the Contractor’s efforts to

cure such breach, the Authority may terminate this Agreement upon written notice to the

Contractor).

SECTION 7.3 ENFORCEMENT COSTS

The Contractor agrees to pay the Authority all reasonable fees and costs incurred by or on behalf

of the Authority in enforcing payment or performance of the Contractor’s obligations hereunder

if such non-performance results in a judicially determined Event of Default by the Contractor. It




40 4848-7048-9779, v. 3

is specifically understood that upon the occurrence of an Event of Default by the Contractor, the

Authority shall have the right to terminate this Agreement and to receive damages as and to the

extent provided in this Article. There shall be no consequential damages permitted.

SECTION 7.4 EVENTS OF DEFAULT BY THE AUTHORITY.

Each of the following shall constitute an Event of Default on the part of the Authority for which

the Contractor may terminate this Agreement pursuant to the notice and cure opportunity

requirements set forth in (B) below.

A. Events of Default for which Contractor May Terminate. The failure or

refusal by the Authority to make payments of any undisputed amounts owed by the Authority to

the Contractor under this Agreement, unless such failure or refusal is excused by an

Uncontrollable Circumstance or Contractor Fault.

B. Notice and Cure Provisions. No event of default set forth in (A) above

shall constitute an Event of Default for which the Contractor may terminate this Agreement

unless:

1. The Contractor has provided the Authority with written notice advising the

Authority that the specified failure or refusal to perform exists which will, unless corrected,

constitute a material breach of this Agreement on the part of the Authority; and

2. The Authority has neither challenged in an appropriate forum the

Contractor’s conclusion that such failure or refusal to perform has occurred or constitutes a

material breach of this Agreement nor corrected or taken steps to correct such default

within a reasonable period of time, but not more than sixty (60) days from the date of the

notice given pursuant to clause (1) of this subsection. If the Authority shall have, however,

diligently taken steps to correct such default within a reasonable period of time, the same

shall not constitute an Event of Default for as long as the Authority is continuing to take

such steps to correct such default.

C. No Other Authority Failures Shall Constitute an Event of Default. No

other failure on the part of the Authority shall constitute an event of default for which the

Contractor may terminate this Agreement.

SECTION 7.5 TERMINATION FOR CONVENIENCE.

The Authority shall have the right at any time during the Term to terminate this Agreement for

the Authority’s convenience and without cause upon ninety (90) days’ prior notice to the

Contractor. In the event this Agreement is terminated by the Authority for convenience pursuant

to this provision, the Contractor shall only be entitled to payment of amounts owed to the

Contractor for the services performed up until the date of such termination, and such amounts

shall constitute the Contractor’s sole and exclusive remedy for such termination for convenience.




41 4848-7048-9779, v. 3

SECTION 7.6 RIGHT TO TERMINATE FOR VIOLATION OF APPLICABLE

LAW

Both parties shall have the right to terminate this Agreement, with no payment or penalty, in the

event that the NYSDEC makes a determination that the Operation cannot operate as

contemplated herein.

ARTICLE VIII.

TERM, EXIT TEST, AND SURVIVAL OF CERTAIN PROVISIONS

SECTION 8.1 TERM OF AGREEMENT

This Agreement shall become effective on the Contract Date, and shall continue in effect until

the fifth (5th) anniversary of the Service Commencement Date (the “Initial Term”), unless earlier

terminated in accordance with the terms of this Agreement, in which event the Term shall be

deemed to have expired as of the date of such termination. (The Service Commencement Date

shall occur immediately following the Transition Period.) This Agreement may be renewed by

the Authority in its sole discretion for up to five (5) additional terms of one year each (each a

“Renewal Term” and, together with the Initial Term, the “Term”) upon written notice to the

Contractor a minimum of thirty (30) days prior to the expiration of the Initial Term or the

Renewal Term, as applicable. Each Renewal Term shall be on the same terms and conditions as

the preceding term or terms more favorable to the Authority.

SECTION 8.2 EXIT TEST

Ninety (90) days prior to the end of the Renewal Term, the Contractor shall deliver a report to

the Authority evidencing that all necessary Operation, Equipment and Site maintenance, repairs

and replacements have been undertaken as required pursuant to this Agreement, and that the

Operation and Equipment is in the same condition and repair (reasonable wear and tear, as

determined by the Authority, excepted) as when the Contractor commenced providing the

Contract Services. The Contractor, however, shall not be responsible for repairing any latent

defects in the Site, which are not due to Contractor Fault. The Contractor shall demonstrate to

the Authority on a walk-through tour of the Operation that all of the requirements contained

herein have been satisfied.

SECTION 8.3 SURVIVAL OF CERTAIN PROVISIONS

The rights and obligations of the Parties hereto shall survive the termination or expiration of this

Agreement, and no such termination or expiration of this Agreement shall limit or otherwise

affect the respective rights and obligations of the Parties hereto accrued prior to the date of such

termination or expiration. At the end of the Term, all other obligations of the Parties hereunder

shall terminate unless extended.




42 4848-7048-9779, v. 3

ARTICLE IX.

SECURITY FOR PERFORMANCE

SECTION 9.1 PERFORMANCE BOND.

The Contractor shall provide and maintain a performance bond as security for providing the

Contract Services. The cost and expense of obtaining and maintaining the performance bond

shall be included in the Operations and Maintenance Fee.

A. Performance Bond. The Contractor shall provide, at least thirty (30) days

prior to the Service Commencement Date, financial security for the performance of its

obligations and prompt payment of moneys that are due to all persons furnishing labor and

materials hereunder through the Performance Bond (substantially in the form attached hereto and

agreed to by the Authority) issued by a surety: (1) approved by the Authority having a rating of

“A” in the latest revision of the A.M. Best Contractor's Insurance Report; (2) listed in the United

States Treasury Department's Circular 570, “Companies Holding Certificates of Authority as

Acceptable Sureties on Federal Bonds and as Acceptable Reinsurance Companies”; and (3)

properly registered and licensed to conduct business in the State. The Performance Bond shall

be issued in the amount equal to the lesser of the annual service fee or $500,000. A copy of the

Performance Bond shall be kept by the Authority and shall be open to public inspection.

B. Monitoring Sureties. The Contractor shall be responsible throughout the

Term of this Agreement for monitoring the financial condition of any surety company issuing

bonds under this Agreement. In the event the rating of any issuing surety company falls below

such minimum level, the Contractor shall promptly notify the Authority of such event and shall

promptly furnish or arrange for the furnishing of a substitute or an additional bond of a surety

company whose rating and other qualifications satisfy all above requirements, unless the

Authority agrees to accept the surety company or agrees to an alternative method of assurance.

SECTION 9.2 GUARANTOR.

A. Guaranty Agreement. The Contractor shall cause the Guaranty Agreement

to be provided and maintained by the Guarantor during the Term hereof in the form attached

hereto as a Transaction Agreement Form. [Provision to apply if the Authority requires a

Guarantor.]

B. Material Adverse Change to Financial Condition of the Guarantor. For

purposes of this Section a “Material Adverse Change” shall mean any change to the financial

condition of the Guarantor that actually has, or is reasonably likely to have, a significant adverse

effect on the Guarantor’s ability to perform its obligations under the Guaranty Agreement, and

shall be deemed to include a twenty percent (20%) year-over-year decline in the Guarantor’s net

worth. For purposes of this Section, “net worth” shall mean stockholder or shareholder equity,

as reported on the Guarantor’s balance sheet. Notwithstanding any of the foregoing, no Material

Adverse Change to the financial condition of the Guarantor shall be deemed to have occurred

under this Section to the extent that the Contractor or the Guarantor, at its sole cost and expense,

is able to obtain and maintain either a shadow or actual investment grade credit rating for the




43 4848-7048-9779, v. 3

Guarantor on its senior debt from one or more of the Rating Services. For purposes of this

subsection “investment grade” means a rating of at least BBB- from S&P or Fitch and a rating of

at least Baa3 from Moody’s. The Contractor shall immediately notify the Authority of any

Material Adverse Change to the financial condition of the Guarantor.

C. Credit Enhancement. If at any time during the Term of this Agreement, a

Material Adverse Change in the Guarantor’s financial condition occurs, the Contractor shall

notify the Authority of such Material Adverse Change not later than ten (10) days following the

occurrence of such Material Adverse Change, and, at its sole cost and expense and subject to

subsection (D) of this Section, cause to be provided credit enhancement of its obligations

hereunder within forty (40) days of such occurrence. Such credit enhancement shall be in the

form of either (1) an unconditional guarantee of all of the Contractor’s obligations hereunder

provided by a corporation or financial institution meeting the minimum financial requirements

set forth in Item (1) of subsection (B) of this Section and otherwise acceptable to the Authority,

or (2) subject to the approval of the Authority in its sole and absolute discretion, a substitute

instrument providing security for the performance of the Contractor’s obligations hereunder in a

form acceptable to the Authority, (which may include a letter of credit on terms and conditions

acceptable to the Authority in its sole and absolute discretion). In the event that the Contractor

provides credit enhancement in the form of a replacement guarantor pursuant to Item (1) of this

subsection, the replacement guarantor shall become the Guarantor for purposes of this

Agreement and the provisions of this Section shall apply equally to such replacement Guarantor.

The Authority shall have the right but not the obligation, exercisable in its sole discretion to

waive, modify, alter or replace the foregoing requirement from time to time as and to the extent

the Authority deems necessary to protect the public interest and secure the performance by the

Contractor of its obligations hereunder and by the Guarantor of its obligations under the

Guaranty Agreement in light of the nature, extent and potential duration of the Material Adverse

Change.

D. Guarantor Financial Reports. The Contractor shall furnish the Authority,

within one hundred and twenty (120) days after the end of the Guarantor’s fiscal year, electronic

copies of (and paper copies when requested in writing by the Authority) consolidated balance

sheets and an income statement for the Guarantor attached to the audited year-end financial

statements for that fiscal year reported upon by the Guarantor’s independent public accountant.

The Contractor shall also furnish the Authority with electronic copies (and paper copies when

requested in writing by the Authority) of the unaudited quarterly financial statements of the

Guarantor within thirty (30) days after the end of each quarter accompanied by a letter from a

financial officer of the Guarantor stating the percentage of its total capitalization which

represents equity, and the current amount of equity reflected in the quarterly statement. If

applicable, the Contractor shall also furnish the Authority with electronic copies (and paper

copies when requested in writing by the Authority) of the quarterly and annual reports and other

public filings of the Guarantor filed with the Securities and Exchange Commission or

comparable foreign regulatory body, unless the Guarantor is exempt from such filing

requirements.




44 4848-7048-9779, v. 3

ARTICLE X.

GENERAL

SECTION 10.1 BOOKS AND RECORDS

The Contractor shall prepare and maintain proper, accurate and complete books, records and

accounts regarding the Contract Services and financial or other transactions related to the

Operation to the extent necessary (1) to verify data with respect to any operations or transactions

in which the Authority has a financial or other material interest hereunder, (2) to prepare monthly

reports of the Operation in accordance with subsection 10.2, (3) to substantiate any payment,

including any payment related to an Uncontrollable Circumstance or which is subject to Cost

Substantiation, and (4) to prepare any report required pursuant to Applicable Law. The

Authority shall have the right to request, upon reasonable notice and demand to the Contractor,

any such books and records if required under Applicable Law, to support any Authority

litigation, to substantiate an Uncontrollable Circumstance claim from the Contractor or to

substantiate any payment whether or not subject to Cost Substantiation. The Contractor shall

keep the relevant portions of the books, records and accounts maintained with respect to each

Contract Year until at least the seventh (7th) anniversary of the last day of such Contract Year.

The provisions of this subsection shall survive the termination of this Agreement.

SECTION 10.2 MONTHLY AND ANNUAL REPORTS

The Contractor shall provide the Authority with a complete Operations report, including the

repair and replacement records set forth in Appendix 3, each Billing Period. Such operations

reports shall be submitted no later than fifteen (15) days after the end of each Billing Period.

Such reports shall be in the form set forth in Appendix 3, and shall provide all information

requested therein. The Contractor shall provide annual summaries of the monthly reports as well

as the Annual Settlement Statement set forth in Section 6.2 within thirty (30) days of the end of

each Contract Year.

SECTION 10.3 NOTICE OF DEFAULT UNDER LEGAL ENTITLEMENTS

The Contractor shall provide to the Authority, immediately after the receipt thereof, copies of

any written notice of a material default or non-compliance event received in connection with any

Legal Entitlement or Subcontract pertaining to the Contract Services under any material financial

or contractual instrument to which they are a party.

SECTION 10.4 NO WAIVERS

No action of the Authority or Contractor pursuant to this Agreement, and no failure to act, shall

constitute a waiver by either Party of the other Party’s compliance with any term or provision of

this Agreement. No course of dealing or delay by the Authority or Contractor in exercising any

right, power or remedy under this Agreement shall operate as a waiver thereof or otherwise

prejudice such Party’s rights, powers and remedies. No single or partial exercise of (or failure to

exercise) any right, power or remedy of the Authority or Contractor under this Agreement shall

preclude any other or further exercise thereof or the exercise of any other right, power or remedy.




45 4848-7048-9779, v. 3

SECTION 10.5 APPLICABLE LAW, FORUM FOR DISPUTE RESOLUTION

AND WAIVER OF JURY TRIAL

All legal actions and proceedings related to this Agreement or to the Operation or to any rights or

any relationship between the Parties arising therefrom shall be governed solely by the laws of the

State of New York and shall be solely and exclusively initiated and maintained in the courts of

the State of New York located in Rockland County and in all such actions the Parties shall have

waived their rights to a trial by jury.

SECTION 10.6 CONTRACTOR INSURANCE

Commencing with the Contract Date and continuing throughout the remainder of the Term of

this Agreement, the Contractor shall obtain and maintain the insurance specified in Appendix 2

(“Contractor Insurance”) and shall comply with all applicable Insurance Requirements.

Insurance coverage required pursuant to this Section shall be maintained with generally

recognized financially responsible insurers reasonably acceptable to the Authority and qualified

and licensed to insure risks in the State. The cost of the Contractor Insurance shall be paid by the

Contractor and shall not be subject to reimbursement by the Authority. The Contractor shall pay

all Contractor Insurance deductibles. In addition, if a peril occurs which is an insurable event but

the costs incurred due to such peril are less than the Contractor Insurance deductible amounts set

forth in Appendix 2, the Contractor shall be responsible for paying the same amount or

percentage of such costs as it would pay if such costs were a deductible amount. The Contractor

shall comply with all applicable Insurance Requirements and take all steps necessary to assure

that the Contractor remains continuously insured in accordance with the requirements of this

Agreement during the Term and that no gaps in coverage occur with respect to such insurance.

Should any gap in coverage occur, the Contractor shall bear, indemnify, hold harmless and

defend the Authority against any Loss-and-Expense arising out of the failure of the Contractor to

provide such continuous insurance coverage. The Contractor shall include the Authority,

Authority consultants, and the County as additional insureds on the Contractor’s General

Liability, and Umbrella Liability Insurance policies. The Contractor shall be responsible for

providing pollution liability insurance for the Operation during the Term of the Agreement.

SECTION 10.7 NO CONSEQUENTIAL OR PUNITIVE DAMAGES

In no event shall either Party hereto be liable to the other or obligated in any manner to pay to the

other, except with respect to indemnification of Loss-And-Expenses arising from third party

claims for which one Party is obligated to indemnify the other pursuant to the provisions of this

Agreement, any special, incidental, consequential, punitive or similar damages (but not actual or

direct damages) based upon claims arising out of or in connection with the performance or

nonperformance of its obligations or otherwise under this Agreement, or the material inaccuracy

of any representation made in this Agreement, whether such claims are based upon contract, tort,

negligence, warranty or other legal theory.

SECTION 10.8 INDEMNIFICATION




46 4848-7048-9779, v. 3

The Contractor agrees that it shall protect, indemnify and hold harmless the Authority, and its

representatives, officers, employees and subcontractors (as applicable in the circumstances) (the

“Authority Indemnified Parties”), from and against (and pay the full amount of) all liabilities,

actions, damages, claims, demands, judgments, losses, costs, expenses, suits or actions and

reasonable attorney’s fees (collectively, “Loss-And-Expense”), and will defend the Authority

Indemnified Parties in any suit, including appeals, for personal injury to, or death of, any person,

or loss or damage to property (including claims by adjoining property owners, whether based on

inverse condemnation or some other legal theory, for diminishment of property value through

any environmental conditions) arising out of (1) the negligence of the Contractor or any of its

officers, members, employees, agents, representatives or Subcontractors in connection with its

obligations or rights under this Agreement, (2) the operation of the Operation by or under the

direction of the Contractor, whether during the Term or after the expiration or termination of this

Agreement, (3) the transfer, transportation, processing and disposal of Rejects and materials for

which the Contractor is responsible, (4) any Contractor breach, or (5) the performance or non-

performance of the Contractor’s obligations under this Agreement. The Contractor shall not,

however, be required to reimburse or indemnify any Authority Indemnified Party for any Loss-

And-Expense to the extent any such Loss-And-Expense is due to (a) any Authority Fault, (b) the

negligence or other wrongful conduct of any Authority Indemnified Party, (c) any

Uncontrollable Circumstance, (d) any act or omission of any Authority Indemnified Party

judicially determined to be responsible for or contributing to the Loss-And-Expense, or (e) any

matter for which the risk has been specifically allocated to the Authority hereunder. An

Authority Indemnified Party shall promptly notify the Contractor of the assertion of any claim

against it for which it is entitled to be indemnified hereunder, shall give the Contractor the

opportunity to defend such claim, and shall not settle the claim without the approval of the

Contractor. These indemnification provisions are for the protection of the Authority Indemnified

Parties only and shall not establish, of themselves, any liability to third parties. The provisions

of this Section shall survive termination of this Agreement.

SECTION 10.9 NO DISCRIMINATION

The Contractor shall not discriminate nor permit discrimination by any of its officers, employees,

agents and representatives against any person because of age, race, color, religion, national

origin, sexual orientation, sex or, with respect to otherwise qualified individuals, handicap. The

Contractor shall take all actions reasonably necessary to ensure that qualified applicants are

employed, and that employees are treated during employment, without regard to their age, race,

color, religion, sex, national origin or, with respect to otherwise qualified individuals, handicap.

Such action shall include, without limitation, recruitment and recruitment advertising; layoff or

termination; upgrading, demotion, transfer, rates of pay or other form of compensation; and

selection for training, including apprenticeship. The Contractor shall impose the non-

discrimination provisions of this Section by contract on all Subcontractors hired to perform work

related to the Operation and shall take all reasonable actions necessary to enforce such

provisions. The Contractor will post in conspicuous places, available to employees and

applicants for employment, notices setting forth the provisions of this nondiscrimination clause.

SECTION 10.10 ACTIONS OF THE AUTHORITY IN ITS GOVERNMENTAL

CAPACITY




47 4848-7048-9779, v. 3

Nothing in this Agreement shall be interpreted as limiting the rights and obligations of the

Authority in its governmental or regulatory capacity, or as limiting the right of the Contractor to

bring any legal action against the Authority, not based on this Agreement, arising out of any act

or omission of the Authority in its governmental or regulatory capacity.

SECTION 10.11 ASSIGNMENT AND TRANSFER.

The Contractor shall not assign, transfer, convey, sublet or otherwise dispose of the Agreement,

or of its right, title, or interest therein, or assign all or any of the portion of money that may be

due or become due under the terms hereof, or its power to execute this Agreement, to any other

person or corporation without the previous written consent of the Authority. If the Contractor

violates this Section, the Authority shall have the right, in its sole discretion, to terminate this

Agreement without prior notice and without a cure period. This Agreement may only be

assigned by either Party hereto with the prior written consent of the other party, except that the

Authority may make such assignments, create such security interests in its rights hereunder and

pledge such monies receivable hereunder as may be required in connection with the issuance of

bonds without the consent of the Contractor.

SECTION 10.12 CHANGE IN OWNERSHIP OF CONTRACTOR OR PARENT

COMPANY.

The Contractor shall provide the Authority with sixty (60) days’ prior written notice of any

change of any nature in the ownership or ownership structure of the Contractor, including any

transfers of shares of stock or units of ownership in the Contractor, and any changes in the

ownership or structure of ownership of a parent company of the Contractor, an Affiliate or a

subsidiary company of the Contractor. In addition, if the Contractor is a privately held company,

the Contractor shall provide the Authority with sixty (60) days’ prior written notice of any

changes in the officers, principals or directors of the Contractor. Along with such notices, upon

request of the Authority the Contractor shall provide any supporting information related to such

change in ownership, ownership structure or change in the officers, principals or directors of the

Contractor.

SECTION 10.13 AMENDMENTS

Neither this Agreement nor any provision hereof may be changed, modified, amended or waived

except by written agreement duly executed by both Parties.

SECTION 10.14 NOTICES

A. Operating Notices Any notices or communications hereunder related to

routine, operation matters arising under. this Agreement and related day-to-day operations

issues, shall be delivered via telephone promptly followed by email confirmation to the

following:

If to the Contractor: [ ]




48 4848-7048-9779, v. 3

[ ]

[ ]

With a copy to: [ ]

[ ]

[ ]

If to the Authority: Assistant Operations Manager

Rockland County Solid Waste Management Authority

172 Main Street

Nanuet, New York 10954

Tel.: (845) 753-2200

Fax: (845) 753-2281

Email: [ ]

With a copy to: Executive Director


172 Main Street


Tel. (845) 753-2200

Fax: (845) 753-2281

Email: [email protected]

B. Notices Other than Operating Notices. All notices, consents, approvals or

communications given pursuant to the terms of the applicable Agreement other than Operating

Notices, shall be given in writing and shall be sufficiently given if delivered in person or by

overnight courier to the following:


[ ]

[ ]

With a copy to: [ ]

[ ]

[ ]

If to the Authority: Executive Director


172 Main Street


Tel. (845) 753-2200

Fax: (845) 753-2281


mailto:[email protected]





49 4848-7048-9779, v. 3

With a copy to: General Counsel


172 Main Street


Tel. (845) 753-2200

Fax: (845) 753-2281

Changes in the respective addresses to which such notices may be directed may be made from

time to time by any Party by written notice to the other Party. Notices and communications

given by certified mail hereunder shall be deemed to have been given five (5) days after the date

of dispatch; all other notices shall be deemed to have been given upon receipt.

SECTION 10.15 REDIRECTION OF EAGLE CRUSHER

The Authority may, from time to time, direct the Contractor to transport the Eagle Crusher to,

and operate on, other sites located in the County in accordance with Applicable Law.

SECTION 10.16 FURTHER ASSURANCES

Each Party agrees to execute and deliver any instruments and to perform any acts as may be

necessary or reasonably requested by the other in order to give full effect to this Agreement.

SECTION 10.17 BINDING EFFECT

This Agreement shall bind and inure to the benefit of the Parties hereto and any successor or

assignee acquiring an interest hereunder consistent with the provisions of Section 10.11.

SECTION 10.18 ADMINISTRATIVE COMMUNICATIONS.

A. Administration of Agreement. The Parties recognize that a variety of

contract administrative matters will routinely arise throughout the Term. These matters will by

their nature involve requests, notices, questions, assertions, responses, objections, reports,

claims, and other communications made personally, in meetings, by phone, by mail, and by

electronic and computer communications. The purpose of this subsection is to set forth a process

by which the resolution of the matters at issue in such communications, once resolution is

reached, can be formally reflected in the common records of the Parties so as to permit the

orderly and effective administration of this Agreement.

B. Contract Administration Memoranda. The principal formal tool for the

administration of matters arising under this Agreement between the Parties shall be a

memorandum which shall be prepared, once all preliminary communications have been

concluded, to evidence the resolution reached by the Authority and the Contractor as to matters

of interpretation and application arising during the course of the performance of their obligations

hereunder (“Contract Administration Memorandum”). By way of example and not of limitation,

such matters may include: (1) claims for an increase or decrease of the Operations and




50 4848-7048-9779, v. 3

Maintenance Fee or other demands for compensation or performance based on any provision

hereof; (2) issues as to the meaning, interpretation, application or calculation to be made under

any provision hereof; (3) notices, waivers, releases, satisfactions, confirmations, further

assurances and approvals given hereunder; and (4) other similar contract administration matters.

1. Procedures. The Contract Administration Memorandum shall be prepared

by the Authority and shall be dated and signed by an authorized representative of each

Party, and co-signed by the Contractor and by the Authority.

2. Effect. Executed Contract Administration Memoranda shall serve to guide

the ongoing interpretation and performance of this Agreement. Notwithstanding the

foregoing, in the event of a conflict between Contract Administration Memoranda and this

Agreement, this Agreement shall control. Moreover, any material change, alteration,

revision or modification of this Agreement, however, shall be effectuated only through a

formal Agreement amendment authorized, approved or ratified by resolution of the

Authority and properly authorized by the Contractor.

SECTION 10.19 RELATIONSHIP OF THE PARTIES.

Neither Party to this Agreement shall have any responsibility with respect to services provided or

contractual obligations assumed by the other Party hereto, and nothing in this Agreement shall be

deemed to constitute either Party a partner, joint venture, agent or legal representative of the

other Party or to create any fiduciary relationship between the Parties.

SECTION 10.20 REPAIR OF AUTHORITY, COUNTY AND PRIVATE

PROPERTY.

The Contractor shall promptly repair or replace all Authority, County and all private property

damaged by the Contractor or any officer, director, employee, representative, agent or

subcontractor of the Contractor in connection with the performance of, or the failure to perform,

the Contract Services. The repair and replacements shall restore the damaged property, to the

maximum extent reasonably practicable, to its character and condition existing immediately prior

to the damage.

SECTION 10.21 AUTHORITY APPROVAL OF SUBCONTRACTORS.

A. Subcontractor Approval. The Contractor shall, unless waived by the

Authority, supply the Authority with the information detailed below requested by the Authority

for each proposed Subcontractor who will undertake work related to the Contract Services in

excess of twenty-five thousand dollars ($25,000). The Contractor shall furnish the Authority

written notice of its intention to engage any Subcontractor, together with, as applicable,

proposals or bids from such Subcontractors, together with all information requested by the

Authority pertaining to the demonstrated responsibility of the proposed Subcontractor in the

following areas and as set forth in Appendix 10, including but not limited to: (1) any conflicts of

interest, (2) any record of felony criminal convictions or pending felony criminal investigations,

(3) any final judicial or administrative finding or adjudication of illegal employment




51 4848-7048-9779, v. 3

discrimination, (4) any unpaid federal, state or local taxes, and (5) any final judicial or

administrative finding or adjudication of non-performance in contracts with the Authority, the

County or the State. The approval or withholding thereof by the Authority of any proposed

Subcontractor shall be at the sole discretion of the Authority and shall not create any liability of

the Authority to the Contractor, to third parties or otherwise. In no event shall any Subcontract

be awarded to any person debarred, suspended or disqualified from State or County contracting

for any services within the scope of the Contract Services. The failure of any approved

Subcontractor to comply with the requirements herein shall result in the immediate revocation of

Authority approval.

B. Contractor Obligations. In the event that the Contractor engages any

Subcontractor to perform the Contract Services, such Subcontractor shall have the obligation to

comply with all covenants and agreements of the Contractor set forth herein. The Contractor

hereby agrees that the Contractor shall be responsible for the performance or failure to perform

of such Subcontractor as if the Contractor was performing the services itself.

C. Subcontract Terms and Subcontractor Actions. The Contractor shall retain

full responsibility to the Authority under the terms of this Agreement for all matters related to the

Contract Services notwithstanding the execution or terms and conditions of any Subcontract. No

failure of any Subcontractor used by the Contractor in connection with the provision of the

Contract Services shall relieve the Contractor from its obligations hereunder to perform the

Contract Services. The Contractor shall be responsible for settling and resolving with all

Subcontractors all claims arising out of delay, disruption, interference, hindrance, or schedule

extension caused by the Contractor or inflicted on the Contractor or a Subcontractor by the

actions of another Subcontractor .

D. Indemnity for Subcontractor Claims. The Contractor shall pay or cause to

be paid to all direct Subcontractors all amounts due in accordance with their respective labor,

materials or equipment furnished for the Contract Services. The Contractor acknowledges that

its indemnity obligations under this Agreement shall extend to all claims for payment or damages

by any Subcontractor who furnishes or claims to have furnished any labor, services, materials or

equipment in connection with the Contract Services.

E. Authority Right to Assume Contractor’s Existing Contractual Obligations.

The Authority shall have the right, but not the obligation, to assume any Subcontract or

contractual arrangement between the Contractor and a third party related to the Contract

Services, without cost or penalty.

SECTION 10.22 INTERPRETATION IN ACCORDANCE WITH IRS REVENUE

PROCEDURE 2017-13.

It is the intent of the Parties that the provisions of this Agreement comply with the guidelines set

forth in Revenue Procedure 2017-13, which sets forth the requirements for the public assets

financed through the issuance of tax-exempt bonds operated by a private entity and that the

provisions of this Agreement be interpreted accordingly. To the extent it is determined that this

Agreement, or any portion thereof, does not comply with Revenue Procedure 2017-13, the




52 4848-7048-9779, v. 3

Parties agree in good faith to modify and amend this Agreement within ninety (90) days of such

notice in a manner necessary to effectuate its compliance with Revenue Procedure 2017-13 or as

otherwise directed in an opinion of nationally recognized bond counsel appointed by the

Authority.




53 4848-7048-9779, v. 3

IN WITNESS WHEREOF, the Parties have caused this Concrete and Asphalt Crushing

Operation Operating and Maintenance Agreement to be executed and delivered by their duly

authorized officers or representatives as of the date first above written.

ROCKLAND COUNTY SOLID WASTE

MANAGEMENT AUTHORITY

By:

Name: Gerard M. Damiani, Jr.

Title: Interim Executive Director

[ ]

By:_________________________________

Name:

Title:

TRANSACTION FORM A

FORM OF GUARANTY AGREEMENT




2 4848-7048-9779, v. 3

GUARANTY AGREEMENT

Between

THE ROCKLAND COUNTY SOLID WASTE MANAGEMENT AUTHORITY

and

[ ]

Dated as of

[___________], 2020

TABLE OF CONTENTS

RECITALS .....................................................................................................................................1

ARTICLE 1 DEFINITIONS AND INTERPRETATION ...........................................................2 SECTION 1.1 DEFINITIONS. ....................................................................................2 SECTION 1.2 INTERPRETATION. ...........................................................................2

ARTICLE 2 REPRESENTATIONS AND WARRANTIES OF THE GUARANTOR ............4 SECTION 2.1 REPRESENTATIONS AND WARRANTIES OF THE

GUARANTOR. ......................................................................................................4

ARTICLE 3 GUARANTY COVENANTS ..................................................................................6

SECTION 3.1 GUARANTY TO THE AUTHORITY. ..............................................6

SECTION 3.2 RIGHT OF AUTHORITY TO PROCEED AGAINST

GUARANTOR .......................................................................................................6 SECTION 3.3 GUARANTY ABSOLUTE AND UNCONDITIONAL ....................7 SECTION 3.4 DEFENSES, SET-OFFS AND COUNTERCLAIMS ........................9

SECTION 3.5 WAIVERS BY THE GUARANTOR ................................................10 SECTION 3.6 PAYMENT OF COSTS AND EXPENSES ......................................11 SECTION 3.7 SUBORDINATION OF RIGHTS .....................................................11

SECTION 3.8 SEPARATE OBLIGATIONS; REINSTATEMENT .......................11 SECTION 3.9 TERM..................................................................................................12

ARTICLE 4 GENERAL COVENANTS ....................................................................................13 SECTION 4.1 MAINTENANCE OF CORPORATE EXISTENCE ......................13

SECTION 4.2 ASSIGNMENT CONSENT OF THE AUTHORITY AT

ITS SOLE DISCRETION ...................................................................................14

SECTION 4.3 QUALIFICATION IN NEW YORK; PRESERVATION OF

ENFORCEABILITY ...........................................................................................14 SECTION 4.4 CONSENT TO JURISDICTION......................................................14 SECTION 4.5 BINDING EFFECT ...........................................................................14 SECTION 4.6 AMENDMENTS, CHANGES AND MODIFICATIONS ...............14

SECTION 4.7 LIABILITY ........................................................................................14 SECTION 4.8 NOTICES............................................................................................15




1 4848-7048-9779, v. 3

GUARANTY AGREEMENT

THIS GUARANTY AGREEMENT is made and dated as of ____________, 2020

between [ ] a [ ]organized and existing under the laws of

the State of [ ] (together with any permitted successors and assigns hereunder

the “Guarantor”), and The Rockland County Solid Waste Management Authority, a body politic

and corporate constituting a public benefit corporation of the State of New York (the

“Authority”), and.

RECITALS

The Authority and [ ], a [ ] organized and

existing under the laws of the State of New York (the “Contractor”), have entered, or are about

to enter into, that certain Concrete and Asphalt Crushing Operation Operating and Maintenance

Agreement dated as of _______________, 2020, as amended from time to time (the

“Agreement”), whereby the Contractor has agreed to operate and maintain the Authority’s

Concrete and Asphalt Crushing Operation, all as more particularly described therein.

The Authority shall enter into the Agreement only if the Guarantor guarantees the

performance by the Contractor of all of the Contractor’s responsibilities and obligations under

the Agreement as set forth in this Guaranty Agreement (the “Guaranty”).

In order to induce the execution and delivery of the Agreement by the Authority and in

consideration thereof, the Guarantor agrees as follows:




2 4848-7048-9779, v. 3

ARTICLE 1

DEFINITIONS AND INTERPRETATION

Section 1.1 DEFINITIONS. For the purposes of this Guaranty, the following words

and terms shall have the respective meanings set forth as follows. Any other capitalized word or

term used but not defined herein is used as defined in the Agreement.

“Obligations” means the amounts payable by, and the covenants and agreements of, the

Contractor pursuant to the terms of the Agreement.

“Transaction Agreement” means any agreement entered into by the Contractor or the

Authority in connection with the transactions contemplated by the Agreement, including the

Agreement, and any supplements thereto.

Section 1.2 INTERPRETATION. In this Guaranty, unless the context otherwise

requires:

(A) References Hereto. The terms “hereby”, “hereof', “herein”, “hereunder” and any

similar terms refer to this Guaranty, and the term “hereafter” means after the date of execution

and delivery of this Guaranty.

(B) Gender and Plurality. Words of the masculine gender mean and include



(C) Persons. Words importing persons include firms, companies, associations,



(D) Headings. The table of contents and any headings preceding the text of the

Articles, Sections and subsections of this Guaranty shall be solely for convenience of reference

and shall not constitute a part of this Guaranty, nor shall they affect its meaning, construction or

effect.




3 4848-7048-9779, v. 3

(E) Entire Agreement; Authority. This Guaranty constitutes the entire agreement

between the parties hereto with respect to the transactions contemplated by this Guaranty.

Nothing in this Guaranty is intended to confer on any person other than the Guarantor, the

Authority and their permitted successors and assigns hereunder any rights or remedies under or

by reason of this Guaranty.

(F) Counterparts. This Guaranty may be executed in any number of original

counterparts. All such counterparts shall constitute but one and the same Guaranty.

(G) Applicable Law. This Guaranty shall be governed by and construed in


(H) Severability. If any clause, provision, subsection, Section or Article of this

Guaranty shall be ruled invalid by any court of competent jurisdiction, the invalidity of any such

clause, provision, subsection, Section or Article shall not affect any of the remaining provisions

hereof, and this Guaranty shall be construed and enforced as if such invalid portion did not exist,

provided that such construction and enforcement shall not increase the liability of the Guarantor

beyond that expressly set forth herein,

(I) Approvals. All approvals, consents and acceptances required to be given or made

by any party hereto shall be at the sole discretion of the party whose approval, consent or

acceptance is required.

(J) Payments. All payments required to be made by the Guarantor hereunder shall be

made in lawful money of the United States of America.




4 4848-7048-9779, v. 3

ARTICLE 2

REPRESENTATIONS AND WARRANTIES OF THE GUARANTOR

Section 2.1 REPRESENTATIONS AND WARRANTIES OF THE GUARANTOR.

The Guarantor hereby represents and warrants that:

(A) Existence and Powers. The Guarantor is a corporation duly organized, validly

existing and in good standing under the laws of the State of ___________, with the full legal

right, power and authority to enter into and perform its obligations under this Guaranty.

(B) Due Authorization and Binding Obligation. This Guaranty has been duly

authorized, executed and delivered by all necessary company action of the Guarantor and

constitutes the legal, valid and binding obligation of the Guarantor, enforceable against the

Guarantor in accordance with its terms, except to the extent that its enforceability may be limited

by bankruptcy, insolvency or other similar laws affecting creditors’ rights from time to time in

effect and equitable principles of general application.

(C) No Conflict. To the best of its knowledge; neither the execution nor delivery by

the Guarantor of this Guaranty nor the performance by the Guarantor of its obligations in

connection with the transaction contemplated hereby or the fulfillment by the Guarantor of the

terms and conditions hereof: (a) conflicts with, violates or results in a breach of any law or

governmental regulation applicable to the Guarantor; (b) conflicts with, violates or results in a

breach of any term or condition of the Guarantor’s [specify Guarantor’s governing documents,

e.g., corporate charter, operating agreement, bylaws, etc.] or any order, judgment or decree, or

any contract, agreement or instrument to which the Guarantor is a party or by which the

Guarantor or any of its properties or assets are bound, or constitutes a default under any of the

foregoing; or (c) shall result in the creation or imposition of any material encumbrance of any

nature whatsoever upon any of the properties or assets of the Guarantor except as permitted

hereby.

(D) No Approvals Required. No approval, authorization, order or consent of, or

declaration, registration or filing with, any Governmental Body is required for the valid




5 4848-7048-9779, v. 3

execution and delivery of this Guaranty by the Guarantor or the performance of its payment or

other obligations hereunder, except as such shall have been duly obtained or made.

(E) No Litigation. Except as disclosed in writing to the Authority, there is no Legal

Proceeding, at law or in equity, before or by any Governmental Body pending or, to the best of

the Guarantor’s knowledge, overtly threatened or publicly announced against the Guarantor, in

which an unfavorable decision, ruling or finding could reasonably be expected to have a material

and adverse effect on the validity, legality or enforceability of this Guaranty against the

Guarantor, or on the ability of the Guarantor to perform its obligations hereunder.

(F) No Legal Prohibition. The Guarantor has no knowledge of any Applicable Law in

effect on the date as of which this representation is being made which would prohibit the

performance by the Guarantor of this Guaranty and the transactions contemplated by this

Guaranty other than applicable bankruptcy laws.

(G) Consent to Agreements. The Guarantor acknowledges that it has received an

execution copy of the Agreement and is fully aware of its terms and conditions.

(H) Consideration. This Guaranty is made in furtherance of the purposes for which

the Guarantor has been organized, and the assumption by the Guarantor of its obligations

hereunder shall result in a material benefit to the Guarantor.

(I) Financial Statements. All financial statements furnished by the Guarantor to the

Authority fully and accurately reflect the financial condition of the Guarantor for the dates and

period indicated, and that as of the date of execution of this Guaranty there has been no Material

Adverse Change (as such term is defined in the Agreement) in the financial condition of

Guarantor since the date of such statements.




6 4848-7048-9779, v. 3

ARTICLE 3

GUARANTY COVENANTS

Section 3.1 GUARANTY TO THE AUTHORITY. The Guarantor hereby absolutely,

presently, irrevocably and unconditionally guarantees to the Authority for the benefit of the

Authority (1) the full and prompt payment when due of each and all of the payments required to

be credited or made by the Contractor under the Agreement (including all amendments and

supplements thereto) to, or for the account of, the Authority, when the same shall become due

and payable pursuant to this Guaranty, and (2) the full and prompt performance and observance

of each and all of the Obligations. Notwithstanding the unconditional nature of the Guarantor’s

obligations as set forth herein, the Guarantor shall have the right to assert the defenses provided

in Section 3.4 hereof against claims made under this Guaranty.

Section 3.2 RIGHT OF AUTHORITY TO PROCEED AGAINST GUARANTOR.

This Guaranty shall constitute a guaranty of payment and of performance and not of collection,

and the Guarantor specifically agrees that in the event of a failure by the Contractor to pay or

perform any Obligation guaranteed hereunder, the Authority shall have the right to proceed first

and directly against the Guarantor under this Guaranty and without proceeding against the

Contractor or exhausting any other remedies against the Contractor which the Authority may

have. Without limiting the foregoing, the Guarantor agrees that it shall not be necessary, and

that the Guarantor shall not be entitled to require, as a condition of enforcing the liability of the

Guarantor hereunder, that the Authority: (1) file suit or proceed to obtain a personal judgment

against the Contractor or any other person that may be liable for the Obligations or any part of

the Obligations; (2) make any other effort to obtain payment or performance of the Obligations

from the Contractor other than providing the Contractor with any notice of such payment or

performance as may be required by the terms of the Agreement or required to be given to the

Contractor under Applicable Law; (3) foreclose against or seek to realize upon any security for

the Obligations; or (4) exercise any other right or remedy to which the Authority is or may be

entitled in connection with the Obligations or any security therefor or any other guarantee

thereof, except to the extent that any such exercise of such other right or remedy may be a

condition to the Obligations of the Contractor or to the enforcement of remedies under the




7 4848-7048-9779, v. 3

Agreement. Upon any unexcused failure by the Contractor in the payment or performance of

any Obligation and the giving of such notice or demand, if any, to the Contractor or the

Guarantor as may be required in connection with such Obligation or this Guaranty, the liability

of the Guarantor shall be effective and shall immediately be paid or performed. Notwithstanding

the Authority’s right to proceed directly against the Guarantor, the Authority (or any successor)

shall not be entitled to more than a single full performance of the Obligations in regard to any

breach or non-performance thereof.

Section 3.3 GUARANTY ABSOLUTE AND UNCONDITIONAL.The obligations of

the Guarantor hereunder are absolute, present, irrevocable and unconditional and shall remain in

full force and effect until the Contractor shall have fully discharged the Obligations in

accordance with their respective terms and conditions, and, except as provided in Section 3.4

hereof, shall not be subject to any counterclaim, set-off, deduction or defense (other than full and

strict compliance with, or release, discharge or satisfaction of, such Obligations) based on any

claim that the Guarantor may have against the Contractor, the Authority or any other person.

Without limiting the foregoing, the obligations of the Guarantor hereunder shall not be released,

discharged or in any way modified by reason of any of the following (whether with or without

notice to, knowledge by, or further consent of, the Guarantor):

(1) the extension or renewal of this Guaranty or the Agreement up to the specified

term of each agreement;

(2) any exercise or failure, omission or delay by the Authority in the exercise of any

right, power or remedy conferred on the Authority with respect to this Guaranty or the

Agreement except to the extent such failure, omission or delay gives rise to an applicable statute

of limitations defense with respect to a specific claim;

(3) any permitted transfer or assignment of rights or obligations under the Agreement

or under any other Transaction Agreement by any party thereto or any permitted assignment,

conveyance or other transfer of any of their respective interests in the Operation and the

Operation Site or in, to or under any of the Transaction Agreements;




8 4848-7048-9779, v. 3

(4) any permitted assignment for the purpose of creating a security interest or

mortgage of all or any part of the respective interests of the Authority or any other person in any

Transaction Agreement or in the Operation or the Operation Site;

(5) any renewal, amendment, change or modification in respect of any of the

Obligations or terms or conditions of any Transaction Agreement;

(6) any failure of title with respect to all or any part of the respective interests of any

person in the Operation, or Operation Site;

(7) the voluntary or involuntary liquidation, dissolution, sale or other disposition of

all or substantially all the assets, marshaling of assets and liabilities, receivership, insolvency,

bankruptcy, assignment for the benefit of creditors, reorganization, moratorium, arrangement,

composition with creditors and/or readjustment of, or other similar proceedings against the

Contractor or the Guarantor, or any of the property of either of them, or any allegation or

contest of the validity of this Guaranty or any other Transaction Agreement in any such

proceeding (it is specifically understood, consented and agreed to that, to the extent permitted

by law, this Guaranty shall remain and continue in full force and effect and shall be enforceable

against the Guarantor, to the same extent and with the same force and effect as if any such

proceeding had not been instituted and as if no rejection, stay, termination, assumption or

modification has occurred as a result thereof, it being the intent and purpose of this Guaranty

that the Guarantor shall and does hereby waive all rights and benefits which might accrue to it

by reason of any such proceeding);

(8) except as permitted by Sections 4.1 or 4.2 hereof, any sale or other transfer by the

Guarantor or any Affiliate of any of the capital stock or other interest of the Guarantor or any

Affiliate in the Contractor now or hereafter owned, directly or indirectly, by the Guarantor or

any Affiliate, or any change in composition of the interests in the Contractor;

(9) any failure on the part of the Contractor for any reason to perform or comply with

any agreement with the Guarantor;




9 4848-7048-9779, v. 3

(10) the failure on the part of the Authority to provide any notice to the Guarantor

which is not required to be given to the Guarantor pursuant to this Guaranty and to the

Contractor as a condition to the enforcement of Obligations pursuant to the Agreement;

(11) any failure of any Party to the Transaction Agreements to mitigate damages

resulting from any default by the Contractor or the Guarantor under any Transaction

Agreement;

(12) the merger or consolidation of any Party to the Transaction Agreements into or

with any other person, or any sale, lease, transfer, abandonment or other disposition of any or all

of the property of any of the foregoing to any person;

(13) any legal disability or incapacity of any Party to the Transaction Agreements; or

(14) the fact that entering into any Transaction Agreement by the Contractor or the

Guarantor was invalid or in excess of the powers of such Party.

Should any money due or owing under this Guaranty not be recoverable from the

Guarantor due to any of the matters specified in subparagraphs (1) through (14) above, then, in

any such case, such money, together with all additional sums due hereunder, shall nevertheless

be recoverable from the Guarantor as though the Guarantor were principal obligor in place of the

Contractor pursuant to the terms of the Agreement and not merely a guarantor, and shall be paid

by the Guarantor forthwith subject to the terms of this Guaranty. Notwithstanding anything to

the contrary expressed in this Guaranty, nothing in this Guaranty shall be deemed to amend,

modify, clarify, expand or reduce the Contractor’s rights, benefits, duties or obligations under the

Agreement. To the extent that any of the matters specified in subparagraphs (1) through (6) and

(8) through (14) would provide a defense to, release, discharge or otherwise affect the

Contractor's Obligations, the Guarantor's obligations under this Guaranty shall be treated the

same.

Section 3.4 DEFENSES, SET-OFFS AND COUNTERCLAIMS. The Guarantor shall

be entitled to exercise or assert any and all legal or equitable rights or defenses which the




10 4848-7048-9779, v. 3

Contractor may have under the Agreement or under Applicable Law (other than bankruptcy or

insolvency of the Contractor and other than any defense which the Contractor has expressly

waived in the Agreement or the Guarantor has expressly waived in Section 3.5 hereof or

elsewhere hereunder), and the obligations of the Guarantor hereunder are subject to such

counterclaims, set-offs or deductions which the Contractor is permitted to assert pursuant to the

Agreement or under Applicable Law (other than bankruptcy or insolvency of the Contractor and

other than any defense which the Contractor has expressly waived in the Agreement or the

Guarantor has expressly waived in Section 3.5 hereof or elsewhere hereunder), if any.

Section 3.5 WAIVERS BY THE GUARANTOR. The Guarantor hereby

unconditionally and irrevocably waives:

(1) notice from the Authority of its acceptance of this Guaranty;

(2) notice of any of the events referred to in Section 3.3 hereof, except to the extent

notice is required to be given as a condition to the enforcement of Obligations;

(3) to the fullest extent lawfully possible, all notices which may be required by

statute, rule of law or otherwise to preserve intact any rights against the Guarantor, except any

notice to the Contractor required pursuant to the Agreement or Applicable Law as a condition to

the performance of any Obligation;

(4) to the fullest extent lawfully possible, any statute of limitations defense based on a

statute of limitations period which may be applicable to guarantors (or parties in similar

relationships) which would be shorter than the applicable statute of limitations period for the

underlying claim;

(5) any right to require a proceeding first against the Contractor;

(6) any right to require a proceeding first against any person or the security provided

by or under any Transaction Agreement except to the extent such Transaction Agreement

specifically requires a proceeding first against any person (except the Contractor) or security;




11 4848-7048-9779, v. 3

(7) any requirement that the Contractor be joined as a Party to any proceeding for the

enforcement of any term of any Transaction Agreement;

(8) the requirement of, or the notice of, the filing of claims by the Authority in the

event of the receivership or bankruptcy of the Contractor; and

(9) all demands upon the Contractor or any other person and all other formalities the

omission of any of which, or delay in performance of which, might, but for the provisions of this

Section 3.5 hereof, by rule of law or otherwise, constitute grounds for relieving or discharging

the Guarantor in whole or in part from its absolute, present, irrevocable, unconditional and

continuing obligations hereunder.

Section 3.6 PAYMENT OF COSTS AND EXPENSES. The Guarantor agrees to pay

the Authority on demand all Fees and Costs, incurred by or on behalf of the Authority in

successfully enforcing by Legal Proceeding observance of the covenants, agreements and

obligations contained in this Guaranty against the Guarantor, other than the Fees and Costs that

the Authority incurs in performing any of its obligations under the Agreement, or other

applicable Transaction Agreement where such obligations are a condition to performance by the

Contractor of its Obligations.

Section 3.7 SUBORDINATION OF RIGHTS. The Guarantor agrees that any right of

subrogation or contribution which it may have against the Contractor as a result of any payment

or performance hereunder is hereby fully subordinated to the rights of the Authority hereunder

and under the Transaction Agreements and that the Guarantor shall not recover or seek to

recover any payment made by it hereunder from the Contractor until the Contractor and the

Guarantor shall have fully and satisfactorily paid or performed and discharged the Obligations

giving rise to a claim under this Guaranty.

Section 3.8 SEPARATE OBLIGATIONS; REINSTATEMENT. The obligations of the

Guarantor to make any payment or to perform and discharge any other duties, agreements,

covenants, undertakings or obligations hereunder shall: (1) to the extent permitted by Applicable

Law, constitute separate and independent obligations of the Guarantor from its other obligations




12 4848-7048-9779, v. 3

under this Guaranty; (2) give rise to separate and independent causes of action against the

Guarantor; and (3) apply irrespective of any indulgence granted from time to time by the

Authority. The Guarantor agrees that this Guaranty shall be automatically reinstated if and to the

extent that for any reason any payment or performance by or on behalf of the Contractor is

rescinded or must be otherwise restored by the Authority, whether as a result of any proceedings

in bankruptcy, reorganization or similar proceeding, unless such rescission or restoration is

pursuant to the terms of the Agreement, or any applicable Transaction Agreement or the

Contractor's enforcement of such terms under Applicable Law.

SECTION 3.9 TERM. This Guaranty shall remain in full force and effect from the date

of execution and delivery hereof until all of the Obligations of the Contractor have been fully

paid and performed.




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ARTICLE 4

GENERAL COVENANTS

Section 4.1 MAINTENANCE OF CORPORATE EXISTENCE.

(A) Consolidation, Merger, Sale or Transfer. The Guarantor covenants that during the

term of this Guaranty it shall maintain its corporate existence, shall not dissolve or otherwise

dispose of all or substantially all of its assets and shall not consolidate with or merge into another

entity or permit one or more other entities to consolidate with or merge into it unless the

successor is the Guarantor and the conditions contained in clause (2) below are satisfied;

provided, however, that the Guarantor may consolidate with or merge into another entity, or

permit one or more other entities to consolidate with or merge into it, or sell or otherwise transfer

to another entity all or substantially all of its assets as an entirety and thereafter dissolve if: (1)

the successor entity (if other than the Guarantor) (a) assumes in writing all the obligations of the

Guarantor hereunder and, if required by law, is duly qualified to do business in the State of New

York, and (b) delivers to the Authority an opinion of counsel to the effect that its obligations

under this Guaranty are legal, valid, binding and enforceable subject to applicable bankruptcy

and similar insolvency or moratorium laws; and (2) any such transaction does not result in a

Material Adverse Change to the financial condition of the Guarantor, as defined in the

Agreement or if such transaction results in a Material Adverse Change to the financial condition

of the Guarantor, as defined in the Agreement, the successor Guarantor provides credit

enhancement as required by the Agreement.

(B) Continuance of Obligations. If a consolidation, merger or sale or other transfer is

made as permitted by this Section, the provisions of this Section shall continue in full force and

effect and no further consolidation, merger or sale or other transfer shall be made except in

compliance with the provisions of this Section. No such consolidation, merger or sale or other

transfer shall have the effect of releasing the initial Guarantor from its liability hereunder unless

a successor entity has assumed responsibility for this Guaranty as provided in this Section, and if

such transaction results in a Material Adverse Change to the financial condition of the Guarantor,




14 4848-7048-9779, v. 3

as defined in the Agreement, the successor Guarantor shall provide credit enhancement as

required by the Agreement.

Section 4.2 ASSIGNMENT. Except as provided in Section 4.1 hereof, this Guaranty

may not be assigned by the Guarantor without the prior written consent of the Authority at its

sole discretion.

Section 4.3 QUALIFICATION IN NEW YORK; PRESERVATION OF

ENFORCEABILITY. The Guarantor agrees that, so long as this Guaranty is in effect, if

required by law, the Guarantor will be duly qualified to do business in the State of New York.

The Guarantor further agrees that it will take all such action as may be required to preserve the

enforceability of the Guaranty.

Section 4.4 CONSENT TO JURISDICTION. The Guarantor irrevocably; (1) agrees

that any Legal Proceeding related to this Guaranty or to any rights or relationship between the

parties arising therefrom shall be solely and exclusively initiated and maintained in State or

federal courts located in Rockland County, New York, having appropriate jurisdiction therefor;

(2) consents to the jurisdiction of such courts in any such Legal Proceeding; (3) waives any

objection which it may have to the laying of the jurisdiction of any such Legal Proceeding in any

such courts; and (4) waives its right to a trial by jury in any Legal Proceeding in any such courts.

Section 4.5 BINDING EFFECT. This Guaranty shall inure to the benefit of the

Authority and its permitted successors and assigns and shall be binding upon the Guarantor and

its successors and assigns.

Section 4.6 AMENDMENTS, CHANGES AND MODIFICATIONS. This Guaranty

may not be amended, changed, modified or terminated and none of its provisions may be waived,

except with the prior written consent of the Authority and the Guarantor.

Section 4.7 LIABILITY. It is understood and agreed to by the Authority that nothing

contained herein shall create any obligation of, or right to look to, any director, officer, employee

or stockholder of the Guarantor (or any Affiliate of the Guarantor) for the satisfaction of any




15 4848-7048-9779, v. 3

obligations hereunder, and no judgment, order or execution with respect to or in connection with

this Guaranty shall be taken against any such director, officer, employee or stockholder.

Section 4.8 NOTICES.

(A) Procedure. All notices, demands or written communications given pursuant to the

terms of this Guaranty shall be in writing and: (1) delivered in person; or (2) transmitted by

certified mail, return, receipt requested, postage prepaid or by overnight courier utilizing the

services of a nationally-recognized overnight courier service with signed verification of delivery.

Notices shall be deemed given only when actually received at the address first given below with

respect to each Party. Either Party may, by like notice, designate further or different addresses to

which subsequent notices shall be sent.

(B) Authority Notice Address. Notices required to be given to the Authority shall be addressed as follows:


172 Main Street

Nanuet, NY 10954

Attn: Operations Manager

with a copy to:


172 Main Street

Nanuet, NY 10954

Attn: Executive Director

(C) Guarantor Notice Address. Notices required to be given to the Guarantor shall be

addressed as follows:

[ ]

with a copy to:

[ ]

[SIGNATURE PAGE FOLLOWS]




16 4848-7048-9779, v. 3

IN WITNESS WHEREOF, the Guarantor has caused this Guaranty to be executed in its

name and on its behalf by its duly authorized officer as of the date first above written.

[ ], as Guarantor

By:

Name

Title

ACCEPTED AND AGREED TO BY:

THE ROCKLAND COUNTY SOLID WASTE MANAGEMENT AUTHORITY

By:

Gerard M. Damiani, Jr.

Interim Executive Director




1

4848-7048-9779, v. 3

TRANSACTION AGREEMENT FORM B

FORM OF PERFORMANCE BOND




2

4848-7048-9779, v. 3

[FORM OF PERFORMANCE BOND]

Bond No. _______________

KNOW ALL MEN BY THESE PRESENT, that we _________________________ with a

place of business at _______________________________ as principal (the “Principal”), and

__________________________, a [corporation] qualified to do business in the State of New

York, with a place of business at _____________________ as Surety (the “Surety”), are held

and firmly bound unto the Rockland County Solid Waste Management Authority as Obligee (the

“Obligee”), in the sum of [insert amount and spell out bond penal sum] lawful money of the

United States of America, to be paid to the Obligee, for which payment, well and truly to be

made, we bind ourselves, our respective heirs, executors, administrators, successors and assigns,

jointly and severally, firmly by these presents.

WHEREAS, the Principal has assumed and made a contract with the Obligee, bearing the date

of ________________________, and entitled the Concrete and Asphalt Crushing Operation

Operating and Maintenance Agreement (the “Agreement”).

NOW THE CONDITIONS of this obligation are such that if the Principal and all

Subcontractors or Suppliers under said contract shall well and truly keep and perform all the

undertakings, covenants, agreement, terms, and conditions of said contract on its part to be kept

and performed during the original term of said contract and any extensions thereof that may be

granted by the Obligee, with or without notice to the Surety, and during the life and including

any guarantee required under the contract, and shall also well and truly keep and perform all the

undertakings, covenants, agreements, terms and conditions of any and all duly authorized

modifications, alterations, changes or additions. The obligations of the Surety set forth herein

shall become null and void only if expressly waived in writing by the Obligee Rockland County

Solid Waste Management Authority; otherwise such obligations shall remain in full force and

virtue.

IN THE EVENT the Agreement is abandoned by the Principal, or is terminated by the Obligee,

the Rockland County Solid Waste Management Authority, under the applicable provisions of the

Agreement, the Surety hereby further agrees that the Surety shall, if requested in writing by the

Rockland County Solid Waste Management Authority, promptly take all such actions as is

necessary to complete said Agreement in accordance with its terms and conditions.

IN WITNESS WHEREFORE, the Principal and Surety have hereto set their hands and seals

this _______ day of _______________, 20___.

PRINCIPAL SURETY

____________________________ ______________________________

____________________________ ______________________________

[Name and Seal] [Attorney-In-Fact][Seal]

____________________________ ______________________________




3

4848-7048-9779, v. 3

[Title] [Address]

______________________________

[Phone]

Attest:_______________________ Attest:_________________________

The rate for this Bond is _______% of the first $______________ and ______% for the next

$________________.

The total premium for this Bond is $________________.

[END OF PERFORMANCE BOND]




Appendix - 2

4848-7048-9779, v. 3

APPENDIX 1

OPERATION PLAN - CONCRETE AND ASPHALT RECYCLING OPERATION

The Contractor shall provide an Operation Plan to the Authority. At a minimum, the Operation

Plan shall address the following topics and items:

I. Hours of Operations

Hours of operation to receive Acceptable Materials and sell Products will be Monday-Friday

from 7:00 a.m. to 4:00 p.m. Hours of operation to receive Acceptable Materials will be Saturday

from 7:00 a.m. to 12:00 p.m.

II. Incoming Material.

Trucks will cross the scales and get a weight slip. They will then proceed to the concrete

crushing area. The spotter will check the scale slip and do a visual check for Oversized Material

or contaminants.

If a load check is acceptable, the spotter will direct the incoming truck where to dump. The

spotter will check the load while it is being dumped to be sure that the material is recyclable.

The truck will then proceed back to the scale to be weighed-out and pay for the material that was

dumped.

If the spotter finds Oversized Material when checking the load, the spotter will inform the driver

that there will be an additional charge per load, i.e. the Materials Surcharge, and how much it is.

The driver will then have the option to pay the Materials Surcharge or leave. If the driver

chooses to pay the Materials Surcharge, the driver will be directed where to dump, and the

Contractor will notify the Authority Operations staff and follow the procedures set forth in

subsection 3.1(F) of the Agreement. If the driver elects to leave without dumping its load

containing more than ten percent (10%) Oversized Materials, the driver may exit from the

Operation and dump its load at the Transfer Station as construction and demolition debris or

leave the Site and have the size of such materials reduced off-Site before returning to the

Operation to dispose of such materials.

Spotters will direct customers to unload at the incoming storage pile and ensure that

Unacceptable Materials are not hidden. If a load contains Unacceptable Materials beyond the

allowable amount, the material will be reloaded and indicated on the voucher that it will be

returned to the scale house. The spotter will reject Unacceptable Material and will also reject

material that has rebar or metals that protrude and are more than eighteen inches (18”), even if it

makes up less than fifteen percent (15%) of a load by volume. All customers will be required to

return a copy of the slip to the scale house.




Appendix - 2

4848-7048-9779, v. 3

Rejects include Unacceptable Material such as rubbish, wood, plastics and other non-acceptable

material in accordance with this Agreement. The Contractor will pick up visible Unacceptable

Materials and place such materials into a dumpster/truck to be later transported to the Transfer

Station. Other Rejects, such as rock or dirt will be set aside for possible alternative disposal that

may be cheaper.

Acceptable Materials will be stacked in storage piles by a front-end loader (“FEL”) operator

Komatsu 480 wheel loader until enough is accumulated to be crushed, provided that all

Acceptable Materials will be crushed within three (3) days of their receipt (in accordance with

scalehouse records), and crushed materials will be screened so as to avoid the creation of large

stockpiles of either Acceptable Materials or crushed materials.

The excavator operator will also sort the material to remove any contaminants before loading

material into the feed hopper. The excavator operator will place all Oversized Materials to the

side where it can be removed to a storage pile to be processed into the proper size until such time

as enough material is accumulated as determined by the Authority.

The Eagle Crusher will have an operator who will be able to inspect the material before it enters

the mill. He will have the ability to stop the feed belt to remove any contaminants before such

contaminants can enter the crusher mill.

The FEL operator will push material to the excavator as needed with the Komatsu WA-480

wheel loader. The FEL operator will also remove the finished Product to storage piles and load

material onto trucks with a FEL. The FEL operator or spotter will issue a load ticket to the truck

driver who will stop at the office trailer and pay for the Product which will be sold by the yard.

The customer will then proceed to the scale house for a copy of the sales ticket. All trucks must

cross the Authority scales going in and out of the Site.

The Eagle Crusher has a water spray system which will be used for dust control when needed.

The Contractor will also use the metered hydrant to wet down the Site to help control dust. Very

little litter is anticipated as the Operation only accepts concrete and asphalt. The Site surface

maintenance will be an ongoing operation at all times with any repairs performed as needed.

Equipment maintenance will be performed in accordance with manufacturer’s maintenance

manual and other requirements set forth in the Agreement.

The size and grade of the material produced will depend upon the market.

(i) 5” – 6” oversize material (to be used for earth stabilization during construction

processes as a proposed new Product to be developed by the Contractor, subject to

the Authority’s prior written approval, in its sole discretion.).

(ii) 1½” minus RCA at best and highest use.

(iii) 1½” minus asphalt at best and highest use.

No Product, however, will be reintroduced into the processing system without the prior

written approval of the Authority, in its sole discretion.




Appendix - 2

4848-7048-9779, v. 3

III. Pile Sizes

As noted in Section II above, Acceptable Materials will be stacked in storage piles until enough

material is accumulated to be Crushed, provided that all Acceptable Materials will be Crushed

within three (3) days of their receipt (in accordance with scalehouse records), and crushed

materials will be screened so as to avoid the creation of large stockpiles of either Acceptable

Materials or crushed materials.

In addition, Oversized Materials will initially be set aside in a location from where it can then be

removed to a storage pile of materials to be processed into the proper size until such time as

enough material is accumulated as determined by the Authority.

The Eagle Crusher will have an operator who will be able to inspect the material before it enters

the mill. He will have the ability to stop the feed belt to remove any contaminants before they

can enter the crusher mill.

The FEL operator will push material to the excavator as needed with the Komatsu WA-480

wheel loader. He will also remove the finished Product to storage piles and load material onto

trucks with a FEL. The FEL operator or spotter will issue a load ticket to the truck driver who

will stop at the office trailer and pay for the Product which will be sold by the yard. The

customer will then proceed to the scale house for a copy of the sales ticket. All trucks must cross

the Authority scales going in and out of the Site.

IV. Crushing Operations

Stockpile material will be kept neat with the use of a FEL.

The Contractor will stockpile material until it reaches an amount that is operationally viable to

start crushing; provided that all Acceptable Materials will be Crushed within three (3) days of

their receipt (in accordance with scalehouse records), and crushed materials will be screened so

as to avoid the creation of large stockpiles of either Acceptable Materials or crushed materials.

The crushing procedure will be as set forth above.

All finished Product will be placed into separate storage piles determined by grade of Product,

and will be solid within ninety (90) days of the date such finished Product was produced.

V. Sale of Product.

The following sets forth the Contractor’s procedures for the sale of Product at the Operation.

1. All customers shall weigh-in at the Authority’s scale via the Route 303 entrance.

2. The customers shall proceed to the sales area as indicated on the Contractor’s Site

plan.




Appendix - 2

4848-7048-9779, v. 3

3. The customer shall receive a pre-numbered sales ticket from the Contractor.

4. Tickets shall be completed and signed by the Contractor’s personnel as to the

number of cubic yards (“CY”) being sold.

5. Verification of the sale will be attached to each sales ticket.

6. The customer shall weigh out at the Authority’s scale via the Route 303 entrance

and must show scale personnel a sale ticket for Sold Product.

VI. Operation Plan for Incoming Material

1. Sorting Protocol.

The Contractor shall carry out the following screening and sorting procedures:

a. Follow normal procedures, as specified in the Crusher manufacturer’s manual and the

Operations and Maintenance Plan, for start-up, shut-down and regular, periodic

inspection and maintenance of the Crusher and other processing Equipment.

b. At the beginning of each processing day, visually inspect the surface of the stockpiles to

identify visible Unacceptable Materials, and remove those Unacceptable Materials so

identified.

c. Using the excavator, lift pieces of concrete or asphalt from the stockpiles. When lifting

the concrete or asphalt, lift a bucket-load several feet in the air and drop it back onto the

pile in order to dislodge any hidden Unacceptable Materials. Then feed the Crusher with

that pre-screened material.

d. As space permits, create stockpiles of pre-screened material separate from the existing

stockpiles and feed the Crusher from the pre-screened stockpiles.

e. The Contractor’s staff persons assigned to operate the excavator and the Crusher shall

maintain continual visual observation of the concrete and asphalt being fed to the

Crusher. Any Unacceptable Materials seen adhering to the concrete or asphalt or being

lifted by the excavator shall result in the excavator operator returning the concrete or

asphalt to the existing stockpile or to a separate stockpile. An effort shall be made, using

the excavator or other means, to remove and put aside the Unacceptable Material. The

concrete or asphalt shall then be lifted and fed to the Crusher by the excavator. The

Crusher operator will be monitoring the feed hopper to keep Unacceptable Material from

entering the Crusher mill by stopping the feed belt to allow the Unacceptable Material to

be removed.

f. The Contractor’s staff shall continue their visual observation of the stockpiles throughout

the period each day when crushing operations are underway. Any Unacceptable Material

that is uncovered by the removal of concrete and asphalt shall be removed from the

stockpile and put aside for later disposal.

g. Procedures for the new product (5”-6”) will follow normal procedures specified in the

new equipment manual.

VII. Rejects.




Appendix - 2

4848-7048-9779, v. 3

As noted in Section II above, Spotters will direct customers to unload at an incoming storage pile

and ensure that Unacceptable Materials are not hidden. If a load contains Unacceptable

Materials beyond the allowable amount, the material will be reloaded and indicated on the

voucher that it will be returned to the scale house. The spotter will reject Unacceptable Material

and will also reject material that has rebar or metals that protrude and are more than eighteen

inches (18”), even if it makes up less than fifteen percent (15%) of a load by volume. All

customers will be required to return a copy of the slip to the scale house.

Rejects include Unacceptable Material such as rubbish, wood, plastics and other non-acceptable

material in accordance with the Agreement. The Contractor will pick up visible Unacceptable

Material and place such materials into a dumpster/truck to be later transported to the Transfer

Station. Other Rejects, such as rock or dirt will be set aside for possible alternative disposal that

may be cheaper.

VIII. Residue.

The Contractor will pick up Unacceptable Material delivered to and accepted at the Operation

and place such materials into a dumpster truck to later be transported to the Transfer Station.

IX. Metal

As noted in Section II above, materials that contain rebar or metals that protrude and are more

than eighteen inches (18”), even if it makes up less than fifteen percent (15%) of a load by

volume will be rejected by the Contractor.

X. Hazardous Waste.

The Contractor shall use diligence to prevent the delivery of Hazardous Waste including material

contaminated by petroleum and petroleum by-products from being accepted at the Operation and

shall comply with the provisions set forth in subsection 3.1(D) of the Agreement.

The Contractor shall use all reasonable efforts to identify any person or organization responsible

for the delivery of Hazardous Waste and require such person or company to immediately remove

such Hazardous Waste and bear all costs and liabilities associated with the removal,

transportation and disposal thereof. Pending such identification, the Contractor shall isolate such

waste from the material stream and immediately notify the Authority. In such event, the

Contractor shall identify a location on the Operation Site on which to store such Hazardous

Waste until such time as it can be removed, and the Authority shall have the right to approve

such location or require the Contractor to identify another location on the Site which is

acceptable to the Authority. If the Contractor is unable to immediately identify the depositor of

such waste, the Contractor shall, in the most expeditious manner possible under the

circumstances, cause such waste to be removed in accordance with Applicable Law from the

Operation Site and transported to and disposed of at a disposal site lawfully permitted to receive

and dispose of such Hazardous Waste. If such Hazardous Waste cannot be attributed to a




Appendix - 2

4848-7048-9779, v. 3

specific generator, the cost of the transportation and disposal of such waste shall be treated as an

expense to and paid by the Contractor. If the Contractor subsequently discovers the identity of

the generator, the Contractor shall seek cost recovery from the generator to bear all costs and

liabilities associated with the transportation and disposal of the Hazardous Waste. Any such

recovery of costs shall, after reimbursement to the Authority for the Authority’s costs and

expenses for any assistance provided, belong to the Contractor.

XI. Dust Control.

As noted in Section II above, the Eagle Crusher has a water spray system which will be used for

dust control when needed. The Contractor will also use the metered hydrant located on the Site

to wet down the Site to help control dust.

XII. Sampling/Testing Protocol

At a minimum, the Contractor shall sample, perform sieve and size gradation analyses on a

quarterly basis, as required by Section 4.4.

XIII. Site Maintenance

As noted in Section II above, very little litter is anticipated as the Operation only accepts

concrete and asphalt. The Site surface maintenance will be an ongoing operation at all times

with any repairs performed as needed. The Contractor’s operator will report potholes and

drainage issues on the monthly report and the corrective action taken.

The Contractor will maintain an ongoing photographic record of the condition of the Site

throughout the Term to determine whether Reasonable Wear and Tear, as determined by the

Authority, has occurred on Site and to identify and document any other conditions on the Site.

As part of the Contractor’s maintenance obligations, the Contractor shall inspect and maintain

the hydrant located on the Site in accordance with the Contract Standards and shall be

responsible for any needed repairs to the hydrant resulting from the Contractor’s performance of

the Contract Services. Any such maintenance and repairs shall be performed in accordance with

the Contract Standards.

XIV. Equipment Maintenance

Equipment maintenance will be done in accordance with the Equipment manufacturer

maintenance manual and the Contract Standards The Contractor will obtain previous

maintenance records of the Equipment and manuals from the Authority, to the extent same exist

and are in the possession of the Authority. The Contractor agrees to conduct such Equipment

maintenance within sixteen (16) operating hours of the date/time recommended by the

manufacturer. On all Equipment filters and fluid housings, the Contractor agrees to indicate with

a permanent marker the hours on the corresponding piece of Equipment and the date and time

that the service was performed. The Contractor also agrees to take oil samples of all Equipment

listed in Appendix 4. One hundred percent (100%) of the cost associated with the fluid samples




Appendix - 2

4848-7048-9779, v. 3

shall be covered by the Contractor. Contractor agrees to pressure-wash all Equipment with hot

water at a minimum of once per month and all Equipment will be pressure washed and degreased

with hot water at every service interval.

XV. Equipment Oil Sampling

Throughout the Term, the Contractor will conduct oil sampling for all Equipment at the

Contractor’s sole cost and expense. Oil samples shall be sent to an approved manufacturer’s

representative laboratory for analysis. The Equipment at the Operation as of the Contract Date is

as follows:

Equipment Oil Sampling

Year Model I.D. #

2010 Komatsu PC 270LC A87412

2010 Komatsu WA 480-6 A48008

2008 Eagle Ultramax 1000 CC 30843/

Portable Crusher 30844

1993 Caterpillar 973 86G03460

XVI. Site Plan

[See attached]




Appendix - 2

4848-7048-9779, v. 3

XVII. Marketing Plan

The Contractor will emphasize its marketing effort, both on incoming material as well as the sale

of the final Product to ensure a consistent flow of incoming and outgoing material. The

Contractor intends to create a deep awareness in the market of the location as a drop off location

for crushed concrete and asphalt through its association with many companies presently

providing and purchasing products from the Operation, since present customers of the Operation

are in industries that have the need for disposal of concrete and asphalt as well as the need to

buy RCA and RAP.

As an additional benefit to the sale of the Product, any unsold materials will be purchased by the

Contractor who over the years has provided materials and services to many local contractors.

The Contractor owns existing trucking and will be able to arrange for trucking if the buyer so

requires it.

The Contractor is established in the business of marketing the Product in the tri-state area as well

as Orange and Putnam Counties, Bergen and Passaic Counties. The users serviced are builders,

contractors, architects, masons and landscapers, all of whom are familiar with the Site and have a

track record of purchasing from the Site.

Marketing Plan for New Product (5”-6”)

The new proposed Product to be developed by the Contractor is in demand and will be utilized

for earth stabilization during construction processes. Due to the Contractor’s association in the

existing Product, the Contractor has ascertained that 5”-6” Product is in demand. Therefore, the

Contractor will market that Product to many of the current Product users of the Operation. The

first step in the marketing plan will be to disseminate information to present users of the existing

Product that the new Product will be available, and then gauge the demand for such new Product.

A total marketing plan for the new Product will be developed as the need becomes apparent.

Marketing of Metals

It is estimated there will be less than one-half of one percent (0.5%) of saleable Metal resulting

from the concrete and asphalt crushing Operation. The Contractor proposes to market this Metal

to scrap metal buyers and to obtain bids form these buyers, which will be included in the

Monthly Report, in order to get the best revenue from the sale. One of the principal buyers of

scrap metal will be Teplitz—a local scrap metal buyer.

On a quarterly basis, the Contractor shall provide the Authority with a report surveying the then

current prices for Metal in the Metal market to ensure that the Authority receives the best

available then-current market pricing for Metal.

The Contractor shall furnish summary reports as to the general categories and locations of

Beneficial Use to which such Product and Metal have been put and its major purchasers and

users.




Appendix - 2

4848-7048-9779, v. 3

XVIII. Safety Plan for Operation of Concrete and Asphalt Crushing Operation

All work will be done in compliance with OSHA standards and other Applicable Law,

including, but not limited to, the following.

1. An OSHA approved First Aid kit will be kept in the Site office.

2. All employees must wear a safety vest, safety goggles and hard hat when not in an

enclosed equipment cab and comply with all OSHA standards.

3. All drivers, before dumping loads or accepting finished Product must be in their

vehicle while unloading and loading.

4. A traffic flow plan based on the Contractor’s analysis of the Site will be submitted

five (5) days prior to commencing operations on the Site.

5. Commercial and/or residential traffic will be allowed on the Site. Specific care

will be given to traffic safety with regard to residential users.

6. All vehicles must have back-up alarms.

7. The crusher will be placed to maximize the working area on Site.

8. When crushing, the traffic on Site will be controlled to keep it as far away from

the danger area as possible.

9. All visitors on Site must check in and be cleared by the Authority and the

Contractor.

10. Only trained and qualified employees will be allowed to work on the Site.

11. All employees must receive safety training before starting and have quarterly

refresher training sessions. Verification of such training/refresher training courses shall

be included in the Contractor’s monthly reports.

XIX. List of Safety Training

The following sets forth a list of the safety trainings to be provided by the Contractor:

1. Hazard Communications.

2. Emergency Plan and First-Aid Overview.

3. Respiratory Overview.




Appendix - 2

4848-7048-9779, v. 3

4. Lock-Out/Tag-Out Procedures.

5. Fire Protection Prevention Extinguishers.

XX. List of Safety Instructional Videos

The following sets forth a list of the safety training videos to be provided by the Contractor in

connection with the Contractor’s safety training responsibilities:

1. General Safety Orientation.

2. Back-Hoe/Loader Safety.

3. Loader Safety Maintenance and Operations.

4. Safety Presentation Material provided through Keller-Soft Safety Training

Customizer, which is computer-based training.




Appendix - 2

4848-7048-9779, v. 3

APPENDIX 2

CONTRACTOR INSURANCE

1. Prior to the Service Commencement Date and throughout the Term of the Agreement, the

Contractor will obtain, pay for and maintain the insurance coverage (“Required Operating

Period Insurance Coverage”) listed below.

(a) Worker’s compensation insurance and disability benefits liability insurance

required by New York State law covering all of the employees of the Contractor

at the Operation.

(b) Employer’s liability insurance required by New York State law covering all the

employees of the Contractor at the Authority’s Operation.

(c) Commercial general liability and property damage insurance with contractual

liability and products completed operations coverage, with combined single limit

for bodily injury, and for property damage with limits of not less than one million

dollars ($1,000,000) per occurrence and two million dollars ($2,000,000) in the

aggregate on a per project basis.

(d) Commercial Comprehensive automobile liability insurance endorsed for any

automobile with limits of one million dollars ($1,000,000) combined single

limit.

(e) Umbrella liability insurance above the required comprehensive general,

automobile and employer’s liability insurance in the amount of ten million

dollars ($10,000,000).

(f) All risk physical damage insurance (including terrorism) covering loss,

damage, or destruction to the Operation in an amount equal to the full

replacement value of the Operation, but not less than two million dollars

($2,000,000) with no co-insurance provision and subject to the following

maximum deductibles:

Earthquake and Flood – Twenty-five thousand dollars ($25,000)

All Other Perils – Ten thousand dollars ($10,000)

(g) Pollution Liability insurance with limits not less than five million dollars

($5,000,000).

2. Additional Insureds. The Contractor will name the Authority, the County, and their officers,

agents, employees, the Authority Engineer, and consultants as additional named insureds (the

“Additional Insureds”) on a primary and noncontributory basis on all insurance policies required

herein, other than paragraphs 1. (a.) and 1. (b.).

Each Party to the Agreement will waive the subrogation rights of its various insurance carriers in

favor of the other Party.




Appendix - 2

4848-7048-9779, v. 3

3. Insurance Certificates and Policies. Insurance and any renewals thereof will be evidenced by

certificates of insurance (the “Certificates”) and copies of all insurance policies issued or

countersigned by a duly authorized representative of the issuer and delivered to the Authority for its

approval ten (10) days prior to the Service Commencement Date or, in the case of a renewal, as

reasonably provided by the insurer. The Certificates will require thirty (30) days written notice to

the Authority, of cancellation, intent not to renew, or reduction in its coverage by the insurance

company.

4. Non-Recourse Provision. All insurance policies will provide that the insurers will have no recourse

against the Additional Insureds for payment of any premium or assessment and will contain a

severability of interest provision in regard to mutual coverage liability policies. The coverages

provided by mutual coverage liability insurance policies required pursuant to the Agreement will be

the primary source of any restitution or other recovery for any injuries to, or death of persons, or

loss or damage to property incurred as a result of an action or inaction of the Contractor or its

Subcontractors, of their respective suppliers, employees, agents, representatives, or invitees, that

fall within these coverages and also within the coverages of any liability insurance or self-insurance

program maintained by the Authority.

5. Deductibles. All deductibles applicable to the Required Operating Period Insurance Coverage will

be agreed upon by the Contractor and the Authority if different from those shown in paragraph 1

above and payment of the deductibles will be by the Contractor. There will be no deductibles for

any of the liability insurance provided in paragraph 1 hereof.

6. Subcontractors. The Contractor will be responsible for ensuring that all Subcontractors which are

working on the Operation secure and maintain all insurance coverages under paragraphs 1. (a), (b),

(c), (d), and (e) above and other financial sureties required by Applicable Law in connection with

their presence and the performance of their duties at or concerning the Operation.

7. Specific Provisions for Comprehensive General Liability Insurance. Comprehensive General

Liability insurance, as required under paragraph 1. (c), will include premises-operations, blanket

contractual, products and completed operations, personal injury, explosion, collapse, underground

hazards, and broad form property damage, including completed operations and independent

contractor’s coverages.

8. Specific Provisions for Worker’s Compensation Coverage. Worker’s Compensation insurance

must be in accordance with the requirements of New York law, as amended from time to time. The

required worker’s compensation insurance will include other State’s coverage, voluntary

compensation coverage, and federal longshoreman and harbor worker’s coverage.

1. Specific Provisions for All Risk Physical Damage Insurance. Coverage for all risk physical

damage required under paragraph 1. (f) will be on an all risk basis and will protect against loss of,

damage to, and destruction of the Operation and Equipment. Such insurance will also cover loss,

damage, or destruction caused by flood, earthquake, and volcanic eruption, provided that

earthquake and volcanic eruption insurance may have sublimits of two million dollars ($2,000,000).

All policies obtained may be subject to normal exclusions relating to nuclear risks, war risks,

terrorism, and such other perils as are generally imposed by insurers on similar properties.

10. Changes in Insurance Coverage. The insurance coverages listed herein are the minimum coverages

permitted, except that the Authority may decrease or omit the coverages specified in paragraph 1.




Appendix - 2

4848-7048-9779, v. 3

(e) at any time in its sole discretion, and may decrease the coverage specified in paragraph 1. (c)

hereof to the extent it is not available on commercially reasonable terms. If the Authority decreases

such coverage, any cost savings will be credited to the benefit of the Authority.

11. Qualifications of Insurers. The Contractor is required to obtain the insurance with insurance

companies that carry a Best’s “A” or equivalent rating. In addition, insurance must be obtained and

maintained with insurers authorized to do business in the State of New York and having agents

upon whom service of Process may be made in the County of Rockland, New York.

12. Cost of Insurance. If the Authority chooses to arrange for the insurance outlined herein, the

Authority may elect to obtain such insurance, provided that:

(a) Written notice is received by the Contractor at least ninety (90) days prior to the

contract year during which the Authority will assume this responsibility or ninety

(90) days prior to the expiration date of the insurance placed by the Contractor.

(b) The Authority may at any time during the term of the Agreement, upon ninety (90)

days written notice prior to any Contract Year, require the Contractor to assume

the responsibility to obtain the Required Operating Period Insurance Coverage.

(c) The Authority pays any cancellation penalty (or short-rate) arising out of canceling

the insurance coverage provided by the Contractor prior to its expiration date.

(d) The Contractor reduces its Operations Charge in proportion to the costs of the

insurance the Contractor has been providing to the Authority.




Appendix - 4

4848-7048-9779, v. 3

APPENDIX 3

SAMPLE MONTHLY AND ANNUAL REPORT

As set forth in Section 10.2 of the Agreement, the Contractor shall provide the Authority

with a complete operations report. Below is a sample of the contents required as part of

the monthly reports. The parties shall agree to a final version prior to the first due date of

such report. The report shall include a summary of all relevant data and records related

to operation of the Operation for each Billing Month, including, to the extent known, the

following.

1. Compilation of Daily Records.

a. Uncontaminated concrete received.

b. Uncontaminated concrete processed.

c. Asphalt Pavement received.

d. Asphalt Pavement processed.

e. Metal received

f. Number of refused deliveries (including those loads containing more than

(i) fifteen percent (15%) of any combination of Unacceptable Material,

brick and/or rock and/or one percent (1%) of such fifteen percent (15%)

amount consisting of soil, and

(ii) ten percent (10%) Oversized Materials).

2. Product production and distribution (see table 1 below)

Table 1 - Product

Recycled Concrete Aggregate (“RCA”) Sales

Date Customer Ticket Number Cubic Yards

RCA

Tons

RCA

Price Authority Revenue

Total

Recycled Asphalt (“RA”) Sales


RA

Tons

RA





Appendix - 4

4848-7048-9779, v. 3

Total

Fill Sales


Fill

Tons

Fill


Total

New Product-Stream Sales


Tons


Total

3. Oversized Materials.

a. Number of loads containing Oversized Materials.

b. Estimated quantities of Oversized Materials.

c. Additional costs of processing Oversized Materials.

4. Metals – Estimated quantities of metals.

5. Description of all complaints received and correction action taken.

6. Operating days and partial and/or total Operation shutdowns.

7. Performance Guarantees.

a. Failure to comply with Performance Guarantees and other performance

requirements.

b. Adverse conditions affecting Performance Guarantees.

8 Provide results of any regulatory/insurance/tests.

9. Dust control.

10. Preventive maintenance records setting forth:

a. Descriptions of all preventive and corrective maintenance.

b. Listing of preventive maintenance scheduled, but not carried out.

c. Listing of previously backlogged preventive or corrective maintenance

carried out.

d. Listing of scheduled preventive maintenance deferred.

e. Listing of scheduled and unscheduled outages.




Appendix - 4

4848-7048-9779, v. 3

f. Descriptions of equipment, repair, and replacements.

g. Scheduled major maintenance or outages for the upcoming Billing Month.

11. Repairs.

12. Equipment usage.

a. Hours of operation.

b. Total operating hours.

c. Spare parts inventory for Equipment in use.

d. Copies and records of all correspondence with original equipment

manufacturers.

13. Equipment out-of-service.

14. Copies and records of all correspondence (written or electronic) with

Subcontractors, including equipment and service suppliers, original equipment

manufacturers, and maintenance Subcontractors.

15. Spare parts inventory for Equipment currently in use.

16. Rejects disposal amounts.

17. Itemization of all payments transacted between the Contractor and the Authority.

18. Environmental/health test results and agency correspondence.

19. Staffing level.

Number of positions, as specified in the Agreement which were not filled, and

changes to the staffing plan (as approved by the Authority and those not requiring

approval).

20. Operational changes during the billing month or recommendations for the future.

21. List of accidents and alarms.

22. Pursuant to Section 4.4 of the Agreement, the Contractor shall provide the

Authority with any quarterly test results, if any.

23. For each Billing Month, the Contractor shall render a statement (an “Invoice”) to

the Authority by the 10th day of the following Billing Month, setting forth each

component of the Operation and Maintenance Fee for the subject Billing Month

(i.e., the prior month of operation), including Revenues and all other Service Fee

Adjustments. The Authority shall not unduly delay the submission of information

to the Contractor required for completion of its monthly Invoice. The Contractor

shall not unduly delay the submission to the Authority of its monthly Invoice.

The Contractor shall include the Invoice in the Monthly Report for the subject

Billing Month.

24. A duly authorized representative of the company shall sign the Monthly Report.

Above the signature line shall be the following statement:

“I ___________________________________ (name), acting as a duly

authorized representative of ___________________________________

(Contractor) do hereby certify that all of the information in this monthly

report is, to the best of my knowledge, true and accurate. All of the

maintenance, repair, and replacement work called for during the period

covered by this monthly report pursuant to the Agreement have been

carried out. Any maintenance, repair or replacement called for or

rescheduled has been disclosed in this monthly report. All other




Appendix - 4

4848-7048-9779, v. 3

occurrences, which are significant with regard to the Agreement, have

been disclosed in this monthly report.”

25. The Contractor shall furnish a summary report to include all Equipment tire

inspection, maintenance, repair and replacement activities undertaken by the

Contractor during any given month.




Appendix - 4

4848-7048-9779, v. 3

APPENDIX 4

LIST OF EQUIPMENT

1. Equipment Provided by the Authority. The Authority shall, at its sole cost and expense,

provide the following equipment for the Contractor’s use in connection with the performance

of the Contract Services:

YEAR EQUIPMENT MODEL/ID# FUNCTION

HOURS ON

UNIT (as of Feb. 21, 2020)

2010 Excavator

Komatsu PC 270LC

A87412

Feed crusher 12,246

2010 Rubber Tire

Loader

Komatsu WA 480-6

A48008

Moving and

loading

unprocessed

and processed

material

13,642

2008

Crusher

Eagle Ultramax

1000 CC Portable

Crusher

30843/30844

Crushing 11,056

In accordance with subsection 1.3(A) of this Agreement, the Authority has obtained an

inspection of each item of Existing Equipment by the applicable manufacturer’s

representative. Copies of the resulting inspection reports are attached hereto as Attachment

4-1.

2. Equipment Provided by the Contractor. Except with respect to the Existing Equipment

specified in item 1 of this Appendix (or replacement Equipment owned by the Authority), the

Contractor shall, at its sole cost and expense, provide all Equipment required for the

Contractor’s use in connection with the performance of the Contract Services:

YEAR

EQUIPMENT MODEL/ID# FUNCTION

HOURS ON

UNIT




Appendix - 4

4848-7048-9779, v. 3

3. New Product Stream Equipment.

[To be included if equipment for new product is proposed by Contractor.]

4. Manufacturer’s Maintenance Requirements.

[To be attached.]




{N0085108 V 14} Appendix - 5

4848-7048-9779, v. 3

APPENDIX 5

OPERATION CHARGE

1. Operation Charge. As set forth in Section 5.1 of the Agreement, the Authority shall

pay the Contractor the Operation Charge set forth below for each Ton of Acceptable Materials

received at the Operation in a Contract Year.

Operation Charge

Initial Term:

Year 1 * $

Year 2 * $

Year 3 * $

Year 4 * $

Year 5 * $

*The Authority makes available fuel for the operation of the Equipment to be used in the

performance of the Contract Services at the Operation. (Contractor provides labor required to

fuel Equipment.)

2. Product Marketing Charge. As set forth in Section 5.1 of the Agreement, the Authority

shall pay the Contractor the Product Marketing Charge set forth below for each Ton of Product

successfully marketing in a Contract Year.

Product Marketing Charge

Initial Term:

Year 1 * $

Year 2 * $

Year 3 * $

Year 4 * $

Year 5 * $




{N0085108 V 14} Appendix - 6

4848-7048-9779, v. 3

APPENDIX 6

STAFFING PLAN, MINIMUM STAFFING LEVELS AND KEY PERSONNEL

I. STAFFING PLAN

Operations Staffing Plan for Concrete and Asphalt Crushing Operation

Operations Staffing Plan for Concrete & Asphalt Recycling Facility (When Crushing)

[To be completed based on selected proposal.]

Operations Staffing Plan for Concrete & Asphalt Recycling Facility (Not Crushing)

[To be completed based on selected proposal.]

II. Minimum staffing levels

Pursuant to subsection 2.7(A) of the Agreement, the Contractor shall maintain a minimum

staffing level of four (4) full-time employees on-Site at all times when crushing is taking place at

the Operation. When crushing is not taking place at the Operation, the Contractor may provide a

minimum staffing level of three (3) full-time employees on-Site. As part of its staffing

obligations at the Operation, the Contractor shall provide a product marketing sales employee

responsible for the Marketing of Product and Metal. The above notwithstanding, the Contractor

shall provide additional staff if needed to perform the Contract Services in accordance with the

Contract Standards or to meet any Performance Guarantee.

III. List of key Contractor Personnel and Resumes

As set forth in subsection 2.7(B), the named individuals set forth in the charts above shall be

considered “key personnel.”

[To be completed based on the selected Proposer’s Proposal.]




Appendix - 9

4848-7048-9779, v. 3

APPENDIX 7

SALES PROCEDURE

1. All customers shall weigh-in at the Authority’s scale via Route 303 entrance.

2. Customers shall proceed to sales area as indicated on Site plan.

3. Customer shall receive pre-numbered sales ticket.

4. Tickets shall be completed and signed by Contractor personnel as to number of cubic

yards (“CY”).

5. Verification of sale to be attached to each sales ticket.

6. Customer shall weight-out at the Authority scale via Route 303 entrance and must show

scale personnel sales ticket.

7. At the end of each quarter, a reconciliation of yards to Tons shall be calculated as

outlined in Appendix 3.




Appendix - 9

4848-7048-9779, v. 3

APPENDIX 8

ANNUAL SETTLEMENT STATEMENT

As set forth in Section 6.2 of the Agreement, the Contractor shall, within thirty

(30) days after the end of each Contract Year, deliver to the Authority an annual

settlement statement setting forth:

(i) Tons received at the Operation and Tons leaving the Operation, as set

forth in the example below and an explanation of any discrepancies.

Example of Reconciliation of Tons received at the Operation and Tons leaving the

Operation:

Acceptable Materials – Inbound and Outbound:

Tons Received

Inbound:

January 100 Tons

February 150 “

March 200 “

▼ 50 “

December 20 “

Total 520

Outbound:

January 98 Tons

February 125 “

March 198 “

▼ 45 “

December 15 “

Total 481

Difference 39

Reconciliation

Ending

Inventory 15

Disposal 24

Note:

- All months are reconciled to scale house reports prior to submission of monthly report

- Difference between inbound and outbound should not be greater than industry standard

(ii) Fuel reconciliation. The Contractor shall reimburse the Authority for

monthly fuel usage in excess of industry standards (i.e., Komtrax report).

(iii) As provided in Section 5.1, the Contractor shall be paid pursuant to the

amounts set forth in Appendix 5, for processing up to one hundred thousand

(100,000) Tons of incoming Acceptable Materials.




Appendix - 9

4848-7048-9779, v. 3

APPENDIX 9

MAP OF OPERATIONS SITE




Appendix - 9

4848-7048-9779, v. 3

APPENDIX 10

APPROVED SUBCONTRACTOR(S)

SUBCONTRACTOR APPROVAL PROCESS




Appendix - 9

4848-7048-9779, v. 3

APPENDIX 11

LIQUIDATED DAMAGES

In addition to any other provision set forth in the Agreement, the Contractor shall be

liable to the Authority for liquidated damages for the following circumstances, and shall pay

the Authority (or reduce the Operations and Maintenance Fee by, if requested by the

Authority) the amounts that are set forth in this Appendix:

EVENT LIQUIDATED DAMAGE

AMOUNT

1. Failure to comply with the Acceptable Materials

Acceptance and Processing Guarantee.

The number of Tons of

Acceptable Materials received

but not processed during the

previous day times the Operation

Charge

2. Storing Product on-Site in violation of the Permit

requirements, or violation of the Permit

$1,000 per day

3. Failure to comply with Applicable Law $500 per day

4. Disposal of Product and/or Metal in a landfill without

Authority approval, in violation of the Product and Metal

Marketability Guarantee or Applicable Law

$5,000 per load (or partial load)

5. Significantly modifying Contractor operations set out in

the Contractor’s Operations and Maintenance Plan without

prior written notification to and approval from the

Authority after notice and 24-hour cure opportunity

$500 per event — First Notice

$1,000 per event — Second Notice

$1,500 per event — Third Notice

and each subsequent notice

6. Failure to file a timely or complete monthly report,

including repair and replacement records after notice and

10-day cure period

$500 per event

7. Modifying the Operation or equipment, without prior

written notification to and approval from the Authority

$5,000 per event

8. Consistent failure to maintain the Operation cleanliness

according to the Operations and Maintenance Plan;

provided, however, that the Authority has submitted notice

of such failure to the Contractor within fourteen (14)

business days of such failure

$500 per day

www.rocklandrecycles.com

@GreenUpRockland

ATTACHMENT 2

DRAFT BULK PURCHASE AGREEMENT

http://www.rocklandrecycles.com/




i 4829-1050-4627, v. 3

BULK PURCHASE AGREEMENT

Between

ROCKLAND COUNTY SOLID WASTE MANAGEMENT AUTHORITY

and

[ ]

Dated ____________ __, 2020




1 4829-1050-4627, v. 3

THIS BULK PURCHASE AGREEMENT (the “Agreement”) is made and dated as of

the ____ of _________, 2020, by and between the ROCKLAND COUNTY SOLID WASTE

MANAGEMENT AUTHORITY, a public benefit corporation of the State of New York, and

having an office and place of business at 172 Main Street, Nanuet, New York 10954 (the

“Authority”) and [ ] , a [ ] organized and existing

under the laws of the State of [ ], having an office and principal place of business at [

] (the “Bulk Purchase Contractor”).

RECITALS WHEREAS, the Authority was authorized to issue a Request for Proposals to solicit

proposals from entities with expertise in the handling, treatment and processing of Product and

having an interest in bulk purchasing the RCA Product produced at the Authority’s Concrete

and Asphalt Crushing Operation (the “Operation”) located in West Nyack New York; and

WHEREAS, the Authority conducted such a procurement and received [ ] proposals in

response to its Request for Proposals, which included the proposal from the Bulk Purchase

Contractor; and

WHEREAS, at a duly held meeting of the Authority Board on [ ], 2020, the

Authority Board, by Resolution No. [ ] of 2020, accepted the proposal submitted by the Bulk

Purchase Contractor, and authorized the negotiation and execution of an agreement with the Bulk

Purchase Contractor for the performance of certain contract services as more particularly set

forth below; and

WHEREAS, the Parties hereto wish to enter their contractual relationship pursuant to

which the Bulk Purchase Contractor will purchase, on an annual basis, up to ten thousand

(10,000) Tons of RCA Product produced at the Operation (or such other amount to the extent the

Authority exercises its option to modify such amount) and perform its other contract services

(collectively, the “Contract Services”) in accordance with the terms and conditions of this

Agreement; and

WHEREAS, the execution and delivery of this Agreement by the Bulk Purchase

Contractor has been duly authorized by all necessary corporate action.

NOW THEREFORE, in consideration of the mutual promises and covenants set forth

herein, the Parties agree as follows:

SECTION 1. DEFINITIONS.

The capitalized terms used herein, but not defined, shall have the meaning set forth in the

Request for Proposals 2020-02 issued by the Authority on February 28, 2020, including all

addenda and appendices thereto (the “RFP”).




2 4829-1050-4627, v. 3

“Acceptable Materials” means separate loads of (i) Uncontaminated Concrete, (ii)

Uncontaminated Asphalt, and (iii) other items as designated by the Authority, meeting

the acceptance criteria determined by the Authority in connection with the Operation.

“Applicable Law” means any law, rule, code, standard, regulation, requirement

(including County licensing for trades), guideline, action, determination or order of, or

Legal Entitlement issued by or deemed to be issued by, any Governmental Body having

jurisdiction, applicable from time to time, to the design, equipping, financing, ownership,

possession, operation or maintenance of the Operation and the Operation Site; to the

transfer, handling, hauling, transportation of Acceptable Materials and sale and marketing

of Product; or to any other transaction or matter contemplated hereby (including any of

the foregoing which concern procurement, contracting, health, safety, fire, environmental

protection, processing, quality and use, labor relations, mitigation monitoring plans,

building codes, nondiscrimination and the payment of minimum and prevailing wages).

“Asphalt” means a mixture of bituminous pitch with sand or gravel, used for surfacing

roads, including debris consisting of waste asphalt, pavement, curbing and Millings.

“Beneficial Use” means any application of RCA or Recycled Asphalt, including any

lawful construction, paving, landscaping or land reclamation use, or for application as

daily or final landfill cover other than disposal in a landfill in accordance with 6 NYCRR

Part 363-6.21(c), provided such use is in compliance with Applicable Law, including 6

NYCRR Part 360.12(c)(3)(viii), (ix) and (x).

“Beneficial Use Guarantee” has the meaning set forth in subsection 6(B) hereof.

“Bulk Purchase Price” means the price per Ton that the Bulk Purchase Contractor will

pay to the Authority for purchasing ten thousand (10,000) Tons of RCA Product (or such

other amount elected by the Authority pursuant to subsection 7(A) hereof) on an annual

basis.

“Commencement Date” means the date the Bulk Purchase Contractor will commence

performing the Contract services hereunder. (The anticipated Commencement Date is

June 1, 2020.)

“Concrete” means material typically made from a combination of stone, cement, sand,

gravel and water generated through demolition of foundations, decking, road slabs, block

and precast structures.

“Contract Date” means [ ], 2020, the date this Agreement has been executed

and delivered by the Parties.

“Contract Services” means everything required to be furnished and done for and relating

to this Agreement by the Bulk Purchase Contractor.




3 4829-1050-4627, v. 3

“Contract Standards” means the standards, terms, conditions, methods, techniques and

practices imposed or required by: (i) Applicable Law, (ii) good industry practices, (iii)

any loading protocol, (iv) any applicable equipment manufacturers’ specifications, (v) the

Required Insurance, (vi) any other standard, term, condition or requirement specifically

provided for in the Agreement to be observed by the Bulk Purchase Contractor.

“County” means Rockland County, New York.

“DEC” means the Department of Environmental Conservation of the State of New York.

“Governmental Body” means any federal, state, County, Authority or regional legislative,

executive, judicial or other governmental board, agency, authority, commission,

administration, court or other body.

“Insurance Requirement” means any rule, regulation, code, or requirement issued by any

fire insurance rating bureau or issued by any body having similar functions, including,

but not limited to, requirements regarding pollution liability, or by any insurance carrier

that has issued a policy of required insurance, compliance with which is a condition to the

effectiveness of such insurance policy.

“Market” means the sale or exchange for value of Product to buyers or their agents.

“Millings” means the recycled asphalt pavement resulting from the controlled removal of

an existing asphalt pavement layer.

“Party” or “Parties” means the Authority and/or the Bulk Purchase Contractor executing

this Agreement.

“Product” means the material produced through the processing of Acceptable Materials,

to its best and highest use, including Recycled Concrete Aggregate and Recycled Asphalt

meeting industry standards for use as fill and excluding Rejects.

“Recycled Asphalt” means Asphalt that has been ground to uniformly sized particles

according to the specifications of the Market.

“Recycled Concrete Aggregate” or “RCA” means concrete that has been ground and

screened according to the specifications of the Market.

“Rejects” means Unacceptable Materials that are mixed with Acceptable Materials as

delivered to the Operation.

“Subcontractor” means every person (other than employees of the Bulk Purchase

Contractor) employed or engaged by the Contractor or any person directly or indirectly in

privity with the Contractor (including every subcontractor of whatever tier) for any

portion of the Contract Services, whether for the furnishing of labor, materials,

Equipment, supplies, services, or otherwise in connection with the Contract Services.




4 4829-1050-4627, v. 3

“Ton” means a short Ton of two thousand (2,000) United States pounds.

“Unacceptable Materials” means all materials that may impair the processing or

marketability of the Product other than Acceptable Materials. Unacceptable Materials

includes but is not limited to reinforced concrete pipe with wire mesh infrastructure,

brick, rocks and soil.

“Uncontaminated” means not commingled with, and not containing: (i) other waste; (ii)

petroleum and petroleum products, except those present solely as a result of normal use

of vehicles on roadways or parking areas; (iii) pesticides, except those present solely as a

result of the property application in normal agricultural or horticultural practices; and (iv)

hazardous waste, as set forth in 6 NYCRR Part 360.2(b)(286).

SECTION 2. INTERPRETATION.

(A) References Hereto. The terms “hereby,” “hereof,” “herein,” “hereunder” and any

similar terms refer to this Agreement.

(B) Gender and Plurality. Words of the masculine gender mean and include



(C) Persons. Words importing persons include firms, companies, associations,



(D) Headings. The table of contents and any headings preceding the text of the

Articles, Sections and subsections of this Agreement shall be solely for convenience of reference

and shall not constitute a part of this Agreement, nor shall they affect its meaning, construction

or effect.

(E) Entire Agreement. This Agreement contains the entire agreement between the

Parties hereto with respect to the transactions contemplated by this Agreement and nothing in

this Agreement is intended to confer on any person other than the Parties hereto and their

respective permitted successors and assigns hereunder any rights or remedies under or by reason

of this Agreement.

(F) Conflicts in Obligations and Standards. In the event of a conflict between any

provisions of this Agreement (including the Appendices hereto) imposing any requirement,

obligation, standard or guarantee on the Contractor, the higher or more stringent requirement,

obligation, standard or guarantee shall apply. As used herein, the “most stringent” shall mean

the applicable requirement, obligation, standard or guarantee that is most beneficial to the

Authority.

(G) References to Days. All references to days herein are to calendar days, including

Saturdays, Sundays and holidays, except as otherwise specifically provided.




5 4829-1050-4627, v. 3

(H) Counterparts. This Agreement may be executed in any number of original


(I) Applicable Law. This Agreement shall be governed by and construed in


(J) Severability. If any clause, provision, subsection, Section or Article of this

Agreement shall be ruled invalid by any court of competent jurisdiction, then the Parties shall:

(1) promptly meet and negotiate a substitute for such clause, provision, subsection, Section or

Article which shall, to the greatest extent legally permissible, effect the intent of the Parties





above to effect the intent of the parties in the invalid provision. The invalidity of such clause,



(K) No Third Party Rights. This Agreement is exclusively for the benefit of the

Authority and the Contractor and shall not provide any third parties with any remedy, claim,

liability, reimbursement, cause of action, or other rights.

(L) References to Including. All references to “including” or “includes” herein shall

be interpreted as meaning “including without limitation” or “includes without limitation”,

respectively.

(M) References to Knowledge. All references to “knowledge,” “knowing,” “know,”

and “knew” shall be interpreted as referenced to a Party having actual knowledge.

(N) Defined Terms. The definitions set forth in Section 1 hereof control in the event

of any conflict with the definitions used in the recitals hereto.

(O) Drafting Responsibility. Neither of the Parties shall be held to a higher standard

than any other Party in the interpretation or enforcement of this Agreement, as a whole or any

portion hereof, based on drafting responsibility.

(P) Liquidated Damages. This Agreement provides for the payment of liquidated

damages set forth in Section 6 in certain circumstances of non-performance, breach and default.

Each Party agrees that the damaged Party’s actual damages in each such circumstance would be

difficult or impossible to ascertain (particularly with respect to the public harm that would occur

as a result of such non-performance, breach or default of the Bulk Purchase Contractor) and that

the liquidated damages provided for herein with respect to each such circumstance are intended

to place the Authority in the same economic position as it would have been in had the

circumstance not occurred. In those cases where additional remedies are provided for, the

Parties acknowledge and agree that such remedies are intended to address harms and damages

that are separate and distinct from those which the liquidated damages are meant to remedy. The

amounts of the liquidated damages have been determined taking into account, among other




6 4829-1050-4627, v. 3

things, cost savings which a Party might realize as a result of the circumstances resulting in the

requirements to pay liquidated damages and any such savings shall not mitigate or off-set the

requirement of a Party to pay the full amount of such liquidated damages.

SECTION 3. GENERAL TERMS AND CONDITIONS.

(A) Entire Agreement. This Agreement contains the entire agreement between the

Parties hereto with respect to the transactions contemplated by this Agreement. This Agreement

shall completely and fully supersede all other understandings and agreements among the Parties

with respect to such transactions.

(B) Counterparts. This Agreement may be executed in any number of original


(C) Applicable Law. This Agreement shall be governed by and construed in

accordance with the applicable laws of the State of New York. All legal actions and proceedings

related to this Agreement shall be solely and exclusively initiated and maintained in the courts of

the State of New York located in Rockland County and in all such actions the Parties shall have

waived their rights to a trial by jury. The Bulk Purchase Contractor shall perform all of its

obligations hereunder in accordance with this Agreement and Applicable Law, including with

any content, distribution, licensing, registration, labeling, and other requirements, which may be

applicable to the packaging, distribution, and sale of RCA Product under Applicable Law, and

shall cause all Subcontractors and affiliates to comply with Applicable Law.

(D) Severability. If any clause, provision, subsection, Section or Article of this

Agreement shall be ruled invalid by any court of competent jurisdiction, then the Parties shall:

(1) promptly meet and negotiate a substitute for such clause, provision, subsection, Section or

Article which shall, to the greatest extent legally permissible, effect the intent of the Parties





above to effect the intent of the Parties in the invalid provision. The invalidity of such clause,



SECTION 4. REPRESENTATIONS AND WARRANTIES OF THE BULK PURCHASE

CONTRACTOR.

The Bulk Purchase Contractor hereby represents and warrants that the Bulk Purchase Price for

the RCA Product as agreed to herein is comparable to the price the Bulk Purchase Contractor

would pay to any other party for similar material, without respect of any other agreement with

the Authority.

SECTION 5. OWNERSHIP AND USE OF OPERATION, THE SITE AND OTHER

AUTHORITY FACILITIES.




7 4829-1050-4627, v. 3

(A) During the Term of this Agreement, the Bulk Purchase Contractor will not obtain

an ownership or leasehold interest in the Operation, Operation Site or any other of the

Authority’s facilities or sites. Further, the Bulk Purchase Contractor shall not obtain any of the

benefits or burdens of ownership of the Operation, Operation Site or any other of the Authority’s

facilities or sites during the Term.

(B) The Bulk Purchase Contractor shall perform the Contract Services as an

independent contractor and shall not have any legal, equitable, tax, beneficial or other ownership

or leasehold interest in the Operation, Operation Site or any other of the Authority’s facilities or

sites..

(C) During the Term, the Bulk Purchase Contractor may enter upon the Operation

Site to remove the purchased RCA Product, and for no other purpose. The Bulk Purchase

Contractor shall coordinate with the Authority to arrange for the loading and removal of the

RCA Product from the Operation by the Bulk Purchase Contractor. During the Term hereof, the

Authority will maintain control over the general nature and use of the Operation and Operation

Site.

(D) The Authority shall have the right during the Term to eliminate the Bulk Purchase

Contractor’s obligation to purchase RCA Product from the Operation without the Bulk Purchase

Contractor’s approval.

SECTION 6. BULK PURCHASE CONTRACTOR’S RESPONSIBILITIES.

(A) Bulk Purchase Contractor Responsibilities. Commencing on the Commencement

Date, the Bulk Purchase Contractor shall perform the Contract Services in accordance with the

Contract Standards. The Bulk Purchase Contractor shall, at its own cost and expense, purchase

and remove for Beneficial Use the RCA Product purchased from the Operation (in the amounts

set forth herein) in accordance with the terms and provisions of this Agreement and the RFP.

The Bulk Purchase Contractor is required to pick-up and purchase the RCA Product, ten

thousand (10,000) Tons annually (or such other amount designated by the Authority in

accordance with subsection 7(A) hereof), as soon as reasonably practicable upon notice from the

Authority that the RCA Product is available for purchase and pick-up. The above

notwithstanding, however, the Bulk Purchase Contractor shall pick-up and purchase RCA

Product within fifteen (15) days following its availability for purchase; provided, however, the

Bulk Purchase Contractor shall pick-up and purchase the RCA Product from the Operation

sooner if required for the Authority to comply with the limits and requirements of its permit

issued by the DEC for the Operation. (Alternatively, the Bulk Purchase Contractor may notify

the Authority when the Bulk Purchase Contractor seeks to purchase RCA Product from the

Authority, as well as the type(s) of RCA Product and quantities it seeks to purchase at that time.

The Authority will thereafter notify the Bulk Purchase Contractor when such RCA Product is

available for purchase; provided, however, that the Bulk Purchase Contractor shall purchase and

remove the RCA Product from the Operation sooner as directed by the Authority or if required

for the Authority to comply with its permit limits and requirements.) The Bulk Purchase

Contractor shall ensure that all RCA Product purchased by the Bulk Purchase Contractor is

beneficially used in accordance with the Beneficial Use Guarantee set forth in subsection 7(B).




8 4829-1050-4627, v. 3

The Bulk Purchase Contractor shall be subject to and responsible for the payment of liquidated

damages to the Authority in the amount of Five Thousand Dollars ($5,000.00) per day to the

extent the Bulk Purchase Contractor fails to timely purchase the RCA Product designated for

purchase, in accordance with the foregoing, and such failure causes the Authority to either: (i)

violate its permit issued by the DEC for the Operation, or (ii) curtail operations to avoid a permit

violation or other violation of Applicable Law. Such liquidated damage provision shall be in

addition to all rights and remedies to which the Authority is entitled under this Agreement,

including the performance damages set forth in subsection 7(B) below. The Bulk Purchase

Contractor shall be responsible for providing all transportation and labor required for the

removal of purchased RCA Product from the Operation and shall comply with any loading

protocol established by the Authority. The Bulk Purchase Contractor shall fully cooperate with

the Authority in connection with the administration of this Agreement and the performance of

the Contract Services. The Bulk Purchase Contractor shall promptly notify the Authority of any

claim or significant threat of a claim by any person, or company, arising out of the sale of

purchased RCA Product by the Bulk Purchase Contractor.

(B) Risk. Each month, the Bulk Purchase Contractor shall have sole and absolute

responsibility for purchasing, transporting, handling, and any subsequent storage, marketing,

distribution, conveyance, transfer, transportation, handling, use, sale, and disposal of purchased

RCA Product, including all costs, charges, taxes and associated liabilities, and with assuring the

Beneficial Use of purchased RCA Product. Title to any RCA Product purchased by the Bulk

Purchase Contractor, together with all risk of damage or injury therefrom, and liability for

purchased RCA Product will pass to the Bulk Purchase Contractor upon leaving the Operation.

(C) Monthly and Annual Reporting and Records. The Bulk Purchase Contractor shall

provide the Authority with a complete monthly report (the “Monthly Report”) in the form set

forth in Appendix A, and shall provide all information requested therein. Such Monthly Report

shall be submitted no later than fifteen (15) days after the end of each calendar month. Also,

upon the Authority’s request, the Bulk Purchase Contractor shall furnish the Authority for review

or copying all documentation maintained by the Bulk Purchase Contractor as to RCA Product

weighing, sampling, testing, transfer, removal, handling, storage, and sale for Beneficial Use.

Within thirty (30) days after the end of each Contract Year, the Bulk Purchase Contractor shall

provide the Authority with a Bulk Purchase Annual Settlement Statement (the “Bulk Purchase

Annual Settlement Statement”) that sets forth the actual aggregate Bulk Purchase Price paid by

the Bulk Purchase Contractor during the Contract Year, along with a reconciliation of any

adjustments thereto. The Bulk Purchase Contractor shall include in its Bulk Purchase Annual

Settlement Statement the calculation of the total number of Tons of RCA Product purchased,

together with documentation of the Beneficial Use of such RCA Product.

(D) Weighing at Authority Scale and Determination of Tonnage Purchased. The

Authority shall operate and maintain the scales and weigh all vehicles (i) entering the Operation

Site to obtain a tare weight, and (ii) exiting the Operation Site containing purchased RCA

Product to obtain the Bulk Purchase Price. The Bulk Purchase Contractor and its agents shall

have the right to monitor weighing activities and to check and verify the proper calibration of the

Authority’s weigh scales. The number of Tons of purchased RCA Product removed from the

Operation by the Bulk Purchase Contractor or its Subcontractors shall be determined by the




9 4829-1050-4627, v. 3

Authority’s weigh records. Accordingly, Purchased RCA Product will be weighed at the

Authority’s weigh scale system for the Clarkstown Solid Waste Facilities in West Nyack upon

leaving the site, recording the vehicle identifier, commodity, weight, time, and date.

(E) Payment at Scale. After being weighed and prior to removal from the Clarkstown

Solid Waste Facilities Site, the Bulk Purchase Contractor shall pay for the RCA Product at the

Authority’s scalehouse. The price paid for the RCA Product shall be based on the Tons of

Product purchased, according to the Authority’s weigh scale reading, times the dollar per Ton

purchase price established herein. The Bulk Purchase Contractor shall maintain a credit card on

file with the Authority to which such purchases shall be charged.

(F) Estimates During Scale Incapacitation. Purchased RCA Product shall not be

removed during times when the weigh scale is not being operated, except as approved by the

Authority in its sole discretion, and if so approved, the Authority and the Bulk Purchase

Contractor shall estimate the quantity of purchased RCA Product on the basis of truck volumes

and estimated data obtained through historical information. The Authority will notify the Bulk

Purchase Contractor at least forty-eight (48) hours in advance of a planned suspension of weigh

scale operations, and as much notice as possible in case of emergencies.

SECTION 7. PERFORMANCE GUARANTEES.

(A) RCA Product Purchase Guarantee. The Bulk Purchase Contractor guarantees that

it will, on an annual basis during the Term of this Agreement, purchase and pickup from the

Operation ten thousand (10,000) Tons of RCA Product (or such other amount designated by the

Authority in accordance with this subsection) produced at the Operation, when available for

purchase, as directed by the Authority. At any time during the Term of this Agreement, the

Authority shall have the right, exercisable in its sole discretion upon thirty (30) days’ prior

written notice to the Bulk Purchase Contractor, to increase the annual RCA Product Purchase

Guarantee hereunder from ten thousand (10,000) Tons of RCA Product (or the then-current

RCA Product Purchase Guarantee amount if the Authority has previously exercised such right)

to up to 30,000 Tons of RCA Product. Such option shall take effect on the 30th day following

such notice to the Bulk Purchase Contractor, and shall remain in effect for the remainder of the

Term of this Agreement or until such other time as the Authority exercises its rights hereunder.

The per Ton pricing for such amount shall equal the Bulk Purchase Price specified in Appendix

C hereto.

(C) Beneficial Use Guarantee. The Bulk Purchase Contractor shall guarantee that one

hundred percent (100%) of the purchased RCA Product will be put to Beneficial Use (the

“Beneficial Use Guarantee”).

(C) Environmental Guarantee. The Bulk Purchase Contractor guarantees that (i) it

will perform its obligations under this Agreement so as not to create a public nuisance, so as to

minimize the generation of fugitive dust and odors with no obvious or persistent fugitive dust

emanating from the vehicles, and so as to comply with all Applicable Law (including any

requirements of OSHA, PESH or the Rockland County Health Department relating to dust); (ii)

it will perform its obligations under this Agreement consistent with good industry practices and




10 4829-1050-4627, v. 3

will take all adequate measures to prevent the spillage from its vehicles; and (iii) to the extent

there is intermediate storage of RCA Product by the Bulk Purchase Contractor, it shall comply

with all Applicable Law relating to stormwater management and disposal.

(D) Non-Compliance with Performance Guarantees/Performance Damages. If the

Bulk Purchase Contractor fails to comply with the Bulk Purchase Guarantee, the Beneficial Use

Guarantee, and/or the Environmental Guarantee, the Bulk Purchase Contractor shall at its own

cost and expense and without relief under any other Performance Guarantee: (1) promptly notify

the Authority of any such non-compliance; (2) pay any resulting damages, fines, levies,

assessments, impositions, penalties or other charges resulting therefrom; (3) take any action

necessary in order to comply with such Performance Guarantee, continue or resume performance

hereunder and eliminate the cause of, and avoid or prevent recurrences of noncompliance with,

such Performance Guarantee; (4) indemnify and hold harmless and release the Authority and

provide full reimbursement to the Authority for all costs, fines, penalties, and fees incurred by

the Authority; and (5) face potential termination of this Agreement at the Authority’s discretion.

(E) Limitations on Relief from Compliance. The requirement that the Bulk Purchase

Contractor shall purchase up to ten thousand (10,000) Tons of RCA Product (or such other

amount as designated by the Authority pursuant to subsection (A) of this Section), and shall

comply with each of the Beneficial Use Guarantee and the Environmental Guarantee and that

such guarantees will apply regardless of (1) the existence or non-existence of profitable or

unprofitable markets for RCA Product; (2) the distance from the Operation of any potential

RCA Product user; or (3) the storage capacity of the Bulk Purchase Contractor.

(F) Beneficial Use Reporting Requirements. The Bulk Purchase Contractor shall

submit to the Authority in its Monthly Report, a certification that all purchased RCA Product

shipped or otherwise transported from the Operation during the month has (1) been purchased in

compliance with the Product Purchase Guarantee set forth in this Section; (2) been purchased by

the Bulk Purchase Contractor; and (3) been used in accordance with the Beneficial Use

Guarantee. The Bulk Purchase Contractor shall furnish summary reports as to the general

categories and locations of Beneficial Use to which such RCA Product has been put.

Additionally, the Bulk Purchase Contractor shall comply with all regulatory reporting

requirements, and shall certify such compliance to the Authority.

SECTION 8. PURCHASE PRICE AND TAXES.

(A) Purchase Price. The Bulk Purchase Contractor shall pay the Authority a dollar

per Ton amount for each for each Ton of RCA Product purchased by the Bulk Purchase

Contractor from the Operation (the “Bulk Purchase Price”) as further described in Appendix C.

(B) Taxes. The Bulk Purchase Contractor shall be responsible for all federal, State,

County and municipal Taxes and any other tax imposed in connection with its performance of

the Contract Services, including any sales or use Tax applicable to the sale of RCA Product. The

Bulk Purchase Contractor acknowledges that these Taxes, if any, have been factored into the

Bulk Purchase Price and agrees to pay all such Taxes, if any, without reimbursement from the

Authority.




11 4829-1050-4627, v. 3

SECTION 9. BREACH.

The Parties agree that in the event that either Party breaches this Agreement, the other

Party may exercise any legal rights it has under this Agreement, and under Applicable Law to

recover damages or to secure specific performance, and that such rights to recover damages and

to secure specific performance shall ordinarily constitute adequate remedies for any such breach.

Both Parties waive special, consequential and punitive damages. The Parties must provide an

opportunity to cure any such breach, in accordance with Section 10 below.

SECTION 10. TERMINATION

If the Authority wishes to terminate this Agreement as a result of a breach of the Bulk

Purchase Contractor’s obligations under this Agreement, the Authority must provide written

notice of said breach to the Bulk Purchase Contractor and provide, not more than thirty (30) days

from the date of the notice, the opportunity to correct such default. If the breach has not been

corrected, or the allegedly breaching Bulk Purchase Contractor has not diligently taken steps to

correct such default within thirty (30) days from the date of the written notice, the Authority may

provide written notice of termination to the Bulk Purchase Contractor at least thirty (30) days

prior to (or, in the case of a bankruptcy, an unauthorized assignment, a violation of Section 15

hereof with respect to changes in ownership, or the failure to provide or maintain the

performance bond or Required Insurance, simultaneously with) the date of termination specified

in such written notice. In the event a breach remains uncured for a period of 90 days regardless

of the Bulk Purchase Contractor’s efforts to cure such breach, the Authority may terminate this

Agreement upon written notice to the Bulk Purchase Contractor. Upon termination, the Bulk

Purchase Contractor shall promptly remove from the Operation Site all purchased RCA Product

(or such other Product that the Bulk Purchase Contractor has committed to purchase), notify the

Authority in writing of any Legal Proceedings against the Bulk Purchase Contractor by any

Subcontractor relating to the termination of the Contract Services; and immediately pay any and

all amounts due and owing to the Authority.

The Authority shall have the right at any time during the Term to terminate this

Agreement for the Authority’s convenience and without cause upon thirty (30) days’ prior

written notice to the Bulk Purchase Contractor. In the event this Agreement is terminated by the

Authority for convenience pursuant to this provision, the Bulk Purchase Contractor shall

immediately pay the Authority any and all sums due and owing, including any liquidated

damages due and owing by the Bulk Purchase Contractor.

The Authority’s determination to exercise any right to terminate this Agreement shall be

made without regard to the Authority’s Operation and Maintenance Agreement.




12 4829-1050-4627, v. 3

SECTION 11. TERM OF AGREEMENT

This Agreement shall become effective on the Contract Date and shall continue in effect

until the fifth anniversary of the Commencement Date, unless earlier terminated in accordance

with its terms. This Agreement may be renewed for up to five (5) one-year renewal terms upon

written notice to the Contractor by the Authority at least thirty (30) days prior to the expiration of

the then current term. In such event, the Parties will negotiate in good faith any amendment to

the Bulk Purchase Price.

SECTION 12. INSURANCE.

Commencing with the Commencement Date and continuing throughout the remainder of

the Term of this Agreement, the Bulk Purchase Contractor shall obtain and maintain the

insurance specified in Appendix B (“Required Insurance”), and shall comply with all applicable

Insurance Requirements. The Bulk Purchase Contractor shall also ensure that any contractors or

Subcontractors entering the Operation Site have insurance comparable to the Required Insurance.

Insurance coverage required pursuant to this Section shall be maintained with generally

recognized financially responsible insurers reasonably acceptable to the Authority and qualified

and licensed to insure risks in the State. The cost of the Bulk Purchase Contractor Insurance

shall be paid by the Bulk Purchase Contractor and shall not be subject to reimbursement by the

Authority. The Bulk Purchase Contractor shall pay all Bulk Purchase Contractor Insurance

deductibles. In addition, if a peril occurs which is an insurable event but the costs incurred due

to such peril are less than the Bulk Purchase Contractor Insurance deductible amounts set forth in

Appendix B, the Bulk Purchase Contractor shall be responsible for paying the same amount or

percentage of such costs as it would pay if such costs were a deductible amount. The Bulk

Purchase Contractor shall comply with all applicable Insurance Requirements and take all steps

necessary to assure that the Bulk Purchase Contractor remains continuously insured in

accordance with the requirements of this Agreement during the Term and that no gaps in

coverage occur with respect to such insurance. Should any gap in coverage occur, the Bulk

Purchase Contractor shall bear, indemnify, hold harmless and defend the Authority against any

Loss-and-Expense arising out of the failure of the Bulk Purchase Contractor to provide such

continuous insurance coverage. The Bulk Purchase Contractor shall include the Authority and

Authority consultants as additional insureds on the Bulk Purchase Contractor’s General Liability,

Umbrella Liability and Pollution Liability Insurance policies.

SECTION 13. PERFORMANCE BOND.

The Contractor shall provide and maintain a performance bond as security for providing

the Contract Services. The cost and expense of obtaining and maintaining the performance bond

shall be included in the Bulk Purchase Price. The Bulk Purchase Contractor shall provide, on or

before the Commencement Date, financial security for the performance of its obligations and

prompt payment of moneys that are due to all persons furnishing labor and materials hereunder

through the Performance Bond (substantially in the form attached hereto and agreed to by the

Authority) issued by a surety: (1) approved by the Authority having a rating of “A” in the latest

revision of the A.M. Best Contractor's Insurance Report; (2) listed in the United States Treasury




13 4829-1050-4627, v. 3

Department's Circular 570, “Companies Holding Certificates of Authority as Acceptable Sureties

on Federal Bonds and as Acceptable Reinsurance Companies”; and (3) properly registered and

licensed to conduct business in the State. The Performance Bond shall be issued in the amount

equal to the per Ton Bulk Purchase Price times the then current RCA Product Purchase

Guarantee. A copy of the Performance Bond shall be kept by the Authority and shall be open to

public inspection. The Contractor Bulk Purchase Contractor shall be responsible throughout the

Term of this Agreement for monitoring the financial condition of any surety company issuing

bonds under this Agreement. In the event the rating of any issuing surety company falls below

such minimum level, the Contractor shall promptly notify the Authority of such event and shall

promptly furnish or arrange for the furnishing of a substitute or an additional bond of a surety

company whose rating and other qualifications satisfy all above requirements, unless the

Authority agrees to accept the surety company or agrees to an alternative method of assurance.

SECTION 13. INDEMNIFICATION.

The Bulk Purchase Contractor agrees that it will indemnify, hold harmless and defend the

Authority, and its representatives, officers, employees and subcontractors (as applicable in the

circumstances) (the “Authority Indemnified Parties”), from and against (and pay the full amount

of) all liabilities, actions, damages, claims, demands, judgments, losses, costs, expenses, suits or

actions and reasonable attorney’s fees (collectively, “Loss-And-Expense”), including appeals, for

personal injury to, or death of, any person, or loss or damage to property (including claims by

adjoining property owners, whether based on inverse condemnation or some other legal theory,

for diminishment of property value through any environmental conditions) resulting from any

third party claim arising out of (1) the negligence, error or omission of the Bulk Purchase

Contractor or any of its officers, members, employees, agents, representatives or Subcontractors

in connection with its obligations or rights under this Agreement, (2) the transfer, transportation,

marketing, or sale of materials (including all Product) for which the Bulk Purchase Contractor is

responsible (including any Loss-And-Expense associated with such RCA Product once it has

been removed from the Operation) (3) any Bulk Purchase Contractor breach, or (4) the

performance or non-performance of the Bulk Purchase Contractor’s obligations under this

Agreement. The Bulk Purchase Contractor shall not, however, be required to reimburse or

indemnify any Authority Indemnified Party for any Loss-And-Expense to the extent any such

Loss-And-Expense is due to (a) any Authority breach, (b) the negligence or other wrongful

conduct of any Authority Indemnified Party, (c) any Uncontrollable Circumstance, (d) any act or

omission of any Authority Indemnified Party judicially determined to be responsible for or

contributing to the Loss-And-Expense, or (e) any matter for which the risk has been specifically

allocated to the Authority hereunder. An Authority Indemnified Party shall promptly notify the

Bulk Purchase Contractor of the assertion of any claim against it for which it is entitled to be

indemnified hereunder, shall give the Bulk Purchase Contractor the opportunity to defend such

claim, and shall not settle the claim without the approval of the Bulk Purchase Contractor. These

indemnification provisions are for the protection of the Authority Indemnified Parties only and

shall not establish, of themselves, any liability to third parties. The provisions of this Section

shall survive termination of this Agreement.

SECTION 14. ASSIGNMENT AND TRANSFER.




14 4829-1050-4627, v. 3

The Bulk Purchase Contractor shall not assign, transfer, convey, sublet or otherwise

dispose of this Agreement, or of its right, title, or interest herein, or assign all or any of the

portion of money that may be due or become due under the terms hereof, or its power to execute

this Agreement, to any other person or corporation without the previous written consent of the

Authority. If the Bulk Purchase Contractor violates this Section, the Authority shall have the

right, in its sole discretion, to terminate this Agreement without prior notice and without a cure

period. This Agreement may only be assigned by either Party hereto with the prior written

consent of the other Party, except that the Authority may make such assignments, create such

security interests in its rights hereunder and pledge such monies receivable hereunder as may be

required in connection with the issuance of bonds without the consent of the Bulk Purchase

Contractor.

SECTION 15. CHANGE IN OWNERSHIP OF BULK PURCHASE CONTRACTOR

The Bulk Purchase Contractor shall provide the Authority with sixty (60) days’ prior written

notice of any change of any nature in the ownership of the Bulk Purchase Contractor or any

parent or subsidiary thereof including, without limitation, any transfers of shares of stock,

membership or other ownership units of the Bulk Purchase Contractor, parent or subsidiary. In

addition, if the Bulk Purchase Contractor is a privately held company, the Bulk Purchase

Contractor shall provide the Authority with sixty (60) days’ prior written notice of any changes

in the officers, principals or directors of the Bulk Purchase Contractor. Subsequent to any such

written notices, the Bulk Purchase Contractor shall provide upon request of the Authority any

reasonable information requested by the Authority and related to such change in ownership,

officers, principals or directors. The Authority shall have the right at any time following the

Authority’s receipt of such supporting information to terminate this Agreement upon thirty (30)

days’ written notice to the Bulk Purchase Contractor. In the event of a violation of this Section

by the Bulk Purchase Contractor, the Authority shall have the right, in its sole discretion, to

terminate this Agreement without prior written notice or cure period.

SECTION 16. DISCRIMINATION AND SEXUAL HARASSMENT.

The Bulk Purchase Contractor shall not discriminate nor permit discrimination by any of

its officers, employees, agents and representatives against any person because of age, race, color,

religion, national origin, sexual orientation, sex or, with respect to otherwise qualified

individuals, handicap. The Bulk Purchase Contractor shall ensure that it has in place during the

Term of this Agreement, a sexual harassment policy in compliance with the New York Human

Rights Law (“NYHRL”). The Bulk Purchase Contractor shall also ensure that it provides sexual

harassment training to all of its employees in accordance with the NYHRL.

SECTION 17 . INTERPRETATION IN ACCORDANCE WITH IRS REVENUE PROCEDURE

2017-13.

It is the intent of the Parties that the provisions of this Agreement comply with the

guidelines set forth in Revenue Procedure 2017-13, which sets forth the requirements for the

public assets financed through the issuance of the tax-exempt bonds operated by a private entity




15 4829-1050-4627, v. 3

and that the provisions of this Agreement be interpreted accordingly. To the extent it is

determined that this Agreement, or any portion thereof, does not comply with Revenue

Procedure 2017-13, the Parties agree in good faith to modify and amend this Agreement within

ninety (90) days of such notice in a manner necessary to effectuate its compliance with Revenue

Procedure 2017-13 or as otherwise directed in an opinion of nationally recognized bond counsel

appointed by the Authority.

SECTION 18. AMENDMENTS.

Neither this Agreement nor any provision hereof may be changed, modified, amended or

waived except by written agreement duly executed by both Parties.

SECTION 19. NOTICES.

(A) Operating Notices Any notices or communications hereunder related to routine

matters arising under this Agreement and related day-to-day issues, shall be delivered via

telephone promptly followed by email confirmation to the following:


[ ]

[ ]

With a copy to: [ ]

[ ]

[ ]

If to the Authority: Assistant Operations Manager

Rockland County Solid Waste

Management Authority

172 Main Street


Tel.: (845) 753-2200

Fax: (845) 753-2281

Email: [ ]

With a copy to: Executive Director

Rockland County Solid Waste

Management Authority

172 Main Street


Tel. (845) 753-2200

Fax: (845) 753-2281






16 4829-1050-4627, v. 3

(B) Notices Other than Operating Notices. All notices, consents, approvals or

communications given pursuant to the terms of the applicable Agreement other than Operating

Notices, shall be given in writing and shall be sufficiently given if delivered in person or by

overnight courier to the following:


[ ]

[ ]

With a copy to: [ ]

[ ]

[ ]

If to the Authority: Executive Director


172 Main Street


Tel. (845) 753-2200

Fax: (845) 753-2281

With a copy to: General Counsel


172 Main Street


Tel. (845) 753-2200

Fax: (845) 753-2281




1 4829-1050-4627, v. 3

IN WITNESS WHEREOF, the Parties have caused this Bulk Purchase Agreement to be

executed and delivered by their duly authorized officers or representatives as of the date first

above written.

ROCKLAND COUNTY SOLID WASTE

MANAGEMENT AUTHORITY

By:____________________________________

Name:

Title:

[ ]

By: ____________________________________

Name: ______________________________

Title: ______________________________




2 4829-1050-4627, v. 3

Appendix A - Monthly Report

The Monthly Report shall include a summary of all relevant data and records for each calendar

month, including to the extent known, the following:

1. Compilation of Daily Records for the Operation:

a. The Number of Tons of purchased RCA Product for such month (and the

remaining Tons to be purchased by the Bulk Purchase Contractor under the RCA

Product Purchase Guarantee).

b. List of accidents during the transport of purchased RCA Product from the

Operation Site to another site.

c. Complaint Log, if any, related to any load of purchased RCA Product being

transported from the Operation Site to another site.

2. Copies of all bills of lading for Tons of RCA Product purchased and removed from the

Operation Site.

3. Confirmation of the Bulk Purchase Price paid and the calculation of any adjustments.

4. A valid invoice and voucher reflecting all payments and offsets, if any, executed by the

Bulk Purchase Contractor’s authorized representative.

5. A certification pursuant to the Agreement that all purchased RCA Product, shipped from

the Operation during the month has been purchased and sold in compliance with the

Agreement requirements, including the Performance Guarantees and all applicable

Governmental Bodies and Applicable Law.

6. The Bulk Purchase Contractor shall furnish summary reports as to the general categories

and locations of Beneficial Use to which such RCA Product has been put in order to

demonstrate compliance with the Beneficial Use Guarantee.

7. A duly authorized representative of the company shall sign the Monthly Report. Above

the signature line shall be the following statement:

“I __________________________________ (name), acting as a duly authorized

representative of __________________________________ (Company) do hereby

certify that all of the information in this Monthly Report is, to the best of my

knowledge, true and accurate. All obligations and duties carried out during the

period covered by this Monthly Report pursuant to the Agreement have been

disclosed. All other obligations and duties required for such same period by this

Agreement which have not been carried out, which are significant with regard to

the Agreement, have been disclosed in the Monthly Report.”




3 4829-1050-4627, v. 3

Appendix B

Required Insurance

1. Prior to the Commencement Date and throughout the term of the Agreement, the Bulk

Purchase Contractor will obtain and pay for, independent of any insurance the Bulk

Purchase Contractor may possess, file and maintain the insurance coverage (the

“Required Insurance”) listed below. The Authority will be named as additional insured

on all policies in items (a.) through (f.) below.

(a) Worker’s compensation insurance and disability benefits liability insurance

required by New York State law covering all of the employees of the Bulk

Purchase Contractor performing services under the Agreement.

(b) Employer’s liability insurance required by New York State law covering all the

employees of the Bulk Purchase Contractor performing services under the

Agreement.

(c) Commercial general liability and property damage insurance with broad form

blanket contractual liability and products completed operations coverage, with

combined single limit for bodily injury, and for property damage with limits of

not less than one million dollars ($1,000,000) per occurrence and two million

dollars ($2,000,000) in the aggregate on a per project basis.

(d) Commercial Comprehensive automobile liability insurance endorsed for any

automobile with limits of one million dollars ($1,000,000) combined single limit.

(e) Excess liability insurance above the required comprehensive general, automobile

and employer’s liability insurance in the amount of five million dollars

($5,000,000).

(f) Pollution liability insurance with limits not less than five million dollars

($5,000,000).

2. Additional Insureds. The Bulk Purchase Contractor will name the Authority, the County,

and their officers, agents, employees, and consultants as additional named insureds on a

primary, non-contributory basis (the “Additional Insureds”) on all insurance policies

required herein, other than paragraphs 1. (a.) and 1. (b.).

The Bulk Purchase Contractor to the Agreement will waive the subrogation rights of its

various insurance carriers in favor of the Authority.




4 4829-1050-4627, v. 3

3. Insurance Certificates and Policies. Insurance and any renewals thereof will be evidenced

by certificates of insurance (the “Certificates”) and copies of all insurance policies issued

or countersigned by a duly authorized representative of the issuer and delivered to the

Authority for its approval ten (10) days prior to the Commencement Date or, in the case

of a renewal, as reasonably provided by the insurer. The Certificates will require thirty

(30) days written notice to the Authority, of cancellation, intent not to renew, or reduction

in its coverage by the insurance company.

4. Non-Recourse Provision. All insurance policies will provide that the insurers will have

no recourse against the Additional Insureds for payment of any premium or assessment

and will contain a severability of interest provision in regard to mutual coverage liability

policies. The coverages provided by mutual coverage liability insurance policies required

pursuant to the Agreement will be the primary source of any restitution or other recovery

for any injuries to, or death of persons, or loss or damage to property incurred as a result

of an action or inaction of the Bulk Purchase Contractor or its Subcontractors, of their

respective suppliers, employees, agents, representatives, or invitees, that fall within these

coverages and also within the coverages of any liability insurance or self-insurance

program maintained by the Authority.

5. Deductibles. All deductibles applicable to the Required Insurance Coverage will be

agreed upon by the Bulk Purchase Contractor and the Authority and the Bulk Purchase

Contractor shall be responsible for the payment of all deductibles. There will be no

deductibles for any of the liability insurance provided in paragraph 1 hereof.

6. Subcontractors. The Bulk Purchase Contractor will be responsible for ensuring that all

Subcontractors secure and maintain all insurance coverages under paragraphs 1.(a.), (b.),

(c), (d.), and (e.) above and other financial sureties required by Applicable Law in

connection with their presence and the performance of their duties at or concerning the

Operation.

7. Specific Provisions for Comprehensive General Liability Insurance. Comprehensive

General Liability insurance, as required under paragraph 1.(c.), will include premises-

operations, blanket contractual, products and completed operations, personal injury, host

liquor liability, explosion, collapse, underground hazards, and broad form property

damage, including completed operations and independent Bulk Purchase Contractor’s

coverages.

8. Specific Provisions for Worker’s Compensation Coverage. Worker’s Compensation

insurance must be in accordance with the requirements of New York law, as amended

from time to time. The required worker’s compensation insurance will include other

State’s coverage, voluntary compensation coverage, and federal longshoreman and

harbor worker’s coverage.




5 4829-1050-4627, v. 3

9. Changes in Insurance Coverage. The insurance coverages listed herein are the minimum

coverages permitted, except that the Authority may decrease or omit the coverages

specified in paragraph 1. (e) at any time in its sole discretion, and may decrease the

coverage specified in paragraph 1. (c). hereof to the extent it is not available on

commercially reasonable terms. If the Authority decreases such coverage, any cost

savings will be credited to the benefit of the Authority.

10. Qualifications of Insurers. The Bulk Purchase Contractor is required to obtain the

insurance set forth in this Agreement with insurance companies that carry a Best’s “A” or

equivalent rating. In addition, insurance must be obtained and maintained with insurers

authorized to do business in the State of New York.

11. Cost of Insurance. If the Authority chooses to arrange for the insurance outlined herein,

the Authority may elect to obtain such insurance, provided that:

(a) Written notice is received by the Bulk Purchase Contractor at least ninety (90)

days prior to the Contract Year during which the Authority will assume this

responsibility or ninety (90) days prior to the expiration date of the insurance

placed by the Bulk Purchase Contractor.

(b) The Authority may at any time during the term of the Agreement, upon ninety

(90) days’ written notice prior to any Contract Year, require the Bulk Purchase

Contractor to assume the responsibility to obtain the Required Insurance.

(c) The Authority pays any cancellation penalty (or short-rate) arising out of

canceling the insurance coverage provided by the Bulk Purchase Contractor

required in the Agreement, prior to its expiration date, and further provided the

Bulk Purchase Contractor pays the cost therefor.

(d) The Bulk Purchase Contractor reimburses the Authority in proportion to the costs

of the insurance the Contractor has been providing to the Authority.




6 4829-1050-4627, v. 3

Appendix C

Bulk Purchase Price

The following sets forth the per Ton price for each Ton of RCA Product purchased pursuant

to this Bulk Purchase Agreement.

COMMODITY:

RCA

Contract

Year

Proposed Bulk Purchase Price Payable to Authority on a Dollar per Ton Basis

Expressed in

Numbers

Expressed in Words

1

_____ per Ton

_________________________________

_

2

_____ per Ton

_________________________________

_

3

_____ per Ton

_________________________________

_

4

_____ per Ton

_________________________________

_

5

_____ per Ton

_________________________________

[To be completed based on selected Proposer’s proposed pricing]

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