1 4849-5199-7112, v. 1
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
2 4849-5199-7112, v. 1
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
3 4849-5199-7112, v. 1
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.
4 4849-5199-7112, v. 1
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
5 4849-5199-7112, v. 1
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
4848-7048-9779, v. 3
1
CONCRETE AND ASPHALT CRUSHING OPERATION
OPERATING AND MAINTENANCE AGREEMENT
Between
ROCKLAND COUNTY SOLID WASTE MANAGEMENT AUTHORITY
and
[ ]
Dated as of [ ] [_], 2020
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
4848-7048-9779, v. 3
i
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
SECTION 1.5 REPRESENTATIONS AND WARRANTIES OF THE
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
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
4848-7048-9779, v. 3
ii
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
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
4848-7048-9779, v. 3
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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
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
4848-7048-9779, v. 3
iv
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
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
4848-7048-9779, v. 3
v
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
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
4848-7048-9779, v. 3
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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:
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
2 4848-7048-9779, v. 3
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,
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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
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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
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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.
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“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.)
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“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.
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“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.
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“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
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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;
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(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.
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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
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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
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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.
SECTION 1.4 REPRESENTATIONS AND WARRANTIES OF THE
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
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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.
SECTION 1.5 REPRESENTATIONS AND WARRANTIES OF THE
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
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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
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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
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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
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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.
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(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
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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
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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
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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.
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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.
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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.
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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
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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.
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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.
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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.
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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
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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
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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
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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.
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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.
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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
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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.
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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
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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
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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.
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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.
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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
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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.
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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.
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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
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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
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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: [ ]
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[ ]
[ ]
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
Rockland County Solid Waste Management Authority
172 Main Street
Nanuet, New York 10954
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:
If to the Contractor: [ ]
[ ]
[ ]
With a copy to: [ ]
[ ]
[ ]
If to the Authority: Executive Director
Rockland County Solid Waste Management Authority
172 Main Street
Nanuet, New York 10954
Tel. (845) 753-2200
Fax: (845) 753-2281
Email: [email protected]
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With a copy to: General Counsel
Rockland County Solid Waste Management Authority
172 Main Street
Nanuet, New York 10954
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
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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
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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
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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.
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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
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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
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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:
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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
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 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.
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(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
accordance with the applicable laws of the State of New York.
(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.
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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
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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.
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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
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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;
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(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;
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(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
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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;
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(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
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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,
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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
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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:
Rockland County Solid Waste Management Authority
172 Main Street
Nanuet, NY 10954
Attn: Operations Manager
with a copy to:
Rockland County Solid Waste Management Authority
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]
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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
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TRANSACTION AGREEMENT FORM B
FORM OF PERFORMANCE BOND
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[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]
____________________________ ______________________________
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[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]
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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.
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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.
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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.
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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.
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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
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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
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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]
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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.
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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.
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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.
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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.
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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.
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(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.
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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
Date Customer Ticket Number Cubic Yards
RA
Tons
RA
Price Authority Revenue
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Total
Fill Sales
Date Customer Ticket Number Cubic Yards
Fill
Tons
Fill
Price Authority Revenue
Total
New Product-Stream Sales
Date Customer Ticket Number Cubic Yards
Tons
Price Authority Revenue
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.
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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
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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.
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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
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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.]
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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 * $
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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.]
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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.
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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.
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Appendix - 9
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APPENDIX 9
MAP OF OPERATIONS SITE
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APPENDIX 10
APPROVED SUBCONTRACTOR(S)
SUBCONTRACTOR APPROVAL PROCESS
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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
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BULK PURCHASE AGREEMENT
Between
ROCKLAND COUNTY SOLID WASTE MANAGEMENT AUTHORITY
and
[ ]
Dated ____________ __, 2020
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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”).
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“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.
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“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.
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“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
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 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.
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(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 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
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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
counterparts. All such counterparts shall constitute but one and the same Agreement.
(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
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.
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.
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(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).
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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
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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
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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.
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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.
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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
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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.
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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
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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:
If to the Contractor: [ ]
[ ]
[ ]
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
Rockland County Solid Waste
Management Authority
172 Main Street
Nanuet, New York 10954
Tel. (845) 753-2200
Fax: (845) 753-2281
Email: [email protected]
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(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:
If to the Contractor: [ ]
[ ]
[ ]
With a copy to: [ ]
[ ]
[ ]
If to the Authority: Executive Director
Rockland County Solid Waste Management Authority
172 Main Street
Nanuet, New York 10954
Tel. (845) 753-2200
Fax: (845) 753-2281
With a copy to: General Counsel
Rockland County Solid Waste Management Authority
172 Main Street
Nanuet, New York 10954
Tel. (845) 753-2200
Fax: (845) 753-2281
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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: ______________________________
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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.”
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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.
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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.
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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.
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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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