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HomeMy WebLinkAbout2011-09-12 11-283 ORDERnemRq 11 283 bate: $eotember 12 2011 Item/Subject: Order, Autfunting the City Manager to Execute a Cont2Q with New Entiand Waste Service of ME, Inc. — WastexaterTreannent Plant Bicsolids Responsible Department: Legal If approved, this Order will authorize a contract with New England Waste Services of ME, Inc. (or the transport and disposal of biosolkls from the wastewater treatment plant. The contract is for a period of five years. The City of Bangor produces approximately 960 wet tons per year of Bicsolids whitlr are a byproduct of treating wastewater. The wntrzct with New England Organics (NEO) has the City's biosolids composted at their Hawk Ridge fadlity In Unity Plantation and the compost Is eventually sold to the public. The charge W transport Me biosolids m Hawk Rldge is $70.22 per ton. The contract also provides that each year there will be a fuel correction W amount for any, fluctuations in fuel prices. This was reviewed by Me Infrastructure Committee which unanimously recommended approval Department Head Manager's Comments: rates M City 0. Clry Manager asaodated Information: Order Budget Approval: mance Director I X Passage _ Post Reading Page _ of _ Referral 11 283 Assigned to Councilor _ GraGvick September 12, 2011. CITY OF BANGOR (TmEJ ORDER, Authorizing The City Manager to Execute a Contract with New England Waste Service of ME, Inc. - Wastewater Treatment Plant Bfosolids WHEREAS the City of Bangor has had a prior contractual relabonship with New England Waste Services of ME, Inc. for transport and disposal of biosolids from the City's wastewater treatment Plant; and WHEREAS, fire City of Bangor and New England Waste Services of ME, Inc. have negotiated another contract for transport and disposal of biosolids Rom the City's wastewater treatment plant; and WHEREAS, it is in the best Interest of the parties to execute a contract with New England Waste Services of ME, Inc. transport and dispose of biosolids from the City's wastewater treatrnent plant. By Hre Gty Lound/ of the G"ty of Bangor. ORDERED, That Catherine M. Conlow, City Manager, on behalf of the City of Bangor, is hereby authorized to execute a contract with New England Waste Services of ME, Inc. for the transport and disposal of biosolids from the wastewater treatment plant. Said contract shall be substantlally the same as affected hereto and in a final form as approved by the City Sobcftor or Assistant City Solicitor. m cin co m S"Ct r 12, MlL M tim Made aOd Seco M for Passage Passed I CITY mm "M) C t wIth Xn HOeland W to Serelce Of I M, Inc. Waste ter Ttl(�eatmeufn Plant mosol£dc isegnedb CouMlor \-P flA Vii c�0 _ 1-/y�h.( 11 281 RESIDUALS MANAGEMENT SERVICE AGREEMENT DEFINITIONS Customer: City of Bangor. ME 760 Main Street Bangor, ME 04401 umanor: New England Waste Services of ME, Inc., ("a New England Organics) 135 Presampwot Street #1 Portland, ME 04103 Plant The plant referrN to in this Agreement is the City of Bangor Waste Water Treatment Plant located at 760 Main Street, Bangor, ME. Facility0es): The fntility(ies) returned to in this Agreement are the hawk Ridge Compost Facility owned by Contractor and located at 76 Reynolds Road, Unity, ME and other locations permitted to receive the Residuals. Residuals: The materials referenced in this Agreement are dewatered municipal biosolids. Wit and screenings generated at the Plant. RECITALS WHEREAS, Customer operates the Plant, and, as a residual by-product thereof, generates approximately 7,200 wet tons per year of Residuals; and WHEREAS, the parties desire for Contractor to provide a comprehensive service for the removal and disposition of said Residuals on the terms and conditions set forth herein and known as the "Agreement". NOW, THEREFORE, for good and valuable consideration, the undersigned patties hereby agree as follows: 1. SERVICE LL General. Contractor will collect at the Plant and transport mid dispose of or recycle Residuals at Inc Facility (ies), according to a schedule (the "Schedule'). 1.2. Residuals Removal Schedule. The Schedule for removal of Residuals shall be prepared by Customer weekly and approved by the Contractor and mutually agreed at least one week in advance when possible and confirm daily schedule 24 hours in advance. Customer wili apply good faith efforts to accurately prepare the Schedule Co.rarwid W ...wn me tbcuwnr¢ Cmfiswtal lawrmeran xm vmU my Na dlnesed ry m,rea masse stn ,, v, rv«w.n ero anotias. wanv,r �; nm �,�W.: leMa wFn or uiteri ng w• any r,syate caer llm intra. M ,t k w ex ecy, ctioned mURI ... Apeeww Sen A.18 ^'el/nvmltl Ym Fnglmpq nb PVBvIy/It (sn,ivnvr It 283 and to Schedule grit and screenings pickups on the same day as biosolids pickups. Contractor will use reasonable business efforts to modify Schedule to meet the dewatering schedules of the Plant upon 24 hours notice.. All proposed changes to the Schedule will be made by the Customer directly to the Contractor. and not to Contramm's subcontract tramsporter(if any). Contractor will remove filled containers from the sludge bay at the Plant pursuant to the Schedule. Unless otherwise mutually agreed, service is provided during the regular business hours 9AMJPM Monday — Friday, exclusive of holidays. 1.3. The Carimmers. Contractor will utilize at its discretion 30 cubic yard capacity roll -off containers, 40.50 cubic yard capacity dump trailers, or low -bed boilers with mounted containers (collectively, "Containers'). Contractor will provide at least one Container available for loading at the Plant at all times. 1.4. Loading and Minimum Load. Customer will load Contractor's Containers evenly, to the level specified by Contractor. All loads will be filled to a minimum amount of tons per load (the "Minimum Load'), as follows: Dump Trailers -30 wet tons; 30cubic yard roll -off containers— 15 wet tons; low -bed trailers with containers —22 wet tons. At the discretion of the Contractor, the Minimum Load quantities may be adjusted to accommodate Contractor's operating requirements or legal requirements. Customer is responsible for not exceeding the maximum legal loads as designated by the Contractor. 1.5. Utilization Options. Contractor retains me option, but not the obligation. to use the Residuals for purposes and in amanner other than those specified above, in accordance with applicable regulations. 1.6. Regulatory Responsibilities and. Approvals. As the manager of the Residuals. Contractor will provide itemized reports tracking the transportation and disposal of all Residuals, and other operations information regarding Contractor's services as may be required to enable Customer to prepare its regulatory reports and respond to inquiries from regulatory agencies. Contractor will use reasonable business efforts to obtain permits and approvals, as acquired to fulfill its responsibilities pursuant to this Agreement, and service under this Agreement is contingent upon receipt mrd maintenance of applicable permits and approvals. Once obtained, Contractor will use reasonable business efforts to maintain such permits and approvals. Contractor will provide, upon request, to Customer copies of all pennits relevant to the performance of their obligations hereunder. As the generator of the Residuals, Customer will provide Contractor with information about the production and/or waste treatment process generating the Residuals, the Residuals themselves, and the Customer's operations, and Customer will execute permit applications aad other certifications, all as may be reasonably necessary for Contractor to manage the Residuals as contemplated herein. 2. PRICE & TERMS C"fid"tu mm.n..nnn ran we rwnnre codadnara mwnnown and odarnoh he nwwwe ever ovd wrwd wmwd, dvv,eM .c roarwro. w demur o•mmreow.w W&MeMe mnnrnnrrn.. omrrmnn m.r mr sewn IIs m%.fwnrn/wauwe. lkxtlimla Marugexm9nm Agrennenh g.01 ... vlo AW 21 MO me /a .cert tunaxwi age Sa//J r-onrr.rcnx' 11 283 2. 1. Rates. 2.1.1. Base Rates. Customer will compensate Contractor at the following meas: a. Residuals transported and recycled at Hawk Ridge Compost Facility $70.22 per wet ran b. Residuals tmraponed and disposed of at Juniper Ridge Landfill $69.56 per wet ton c. Transportation of grit and screenings to Juniper Ridge landfill $200.00 per load d. Maintenance fee — Grit and Screenings Containers (Applies only if specifically authorized by Customer In advance): Time $65.00 per hour - Materials Documented Cost Plus 15% 2.1.2. Total Solids Surcharge. A surcharge shall apply for all tons received at the Facility which are lower in tom[ solids content than 18°/w as reasonably determined by the Contractor. The surcharge shall be at the rate of $3.00 per percentage point, and shall be calculated to the 1/101" of a percentage point. The Total Solids Surcharge will be assessed monthly and billed quarterly. 2.1.3. Total Solids Credit. If Customer demonstrates over a three molrth period that the Ram solids content of the Residual averages greater than 30%.. and can reasonably be expected to continue to average greater than - - 30%, then Customer and Contractor agree to negotiate in good faith a new Base Rate for Residuals transported and recycled at Hawk Ridge Compost Facility. 2.1.4. Demurrage. When Contractor transports Residuals, loading and departure times of greater than forty (60) minutes at Plant, when Contractor does not cause such delays, slsall be billed to Customer at ninety-five dollars ($95.00) per hem. In the event that Customer has no Container loaded and ready for removal according to the Schedule and cancels the pick-up upon Contractor's arrival at We Plant, a minimum few (4) hour demurrage charge will be applied. 2.1.5. Applicable Taxes. All Rates herein are exclusive of taxes incurred by We Contractor to perform this Agreement. Customer is solely responsible for payment of all applicable taxes. 2.2. Minimum Load. A charge will be made for the Minimum Load at the above rates for We minimum volumes (tons or yards) in the event that Customer this to provide Car arta mm.meeo Tha dwvmens is em2kMdel lnklme6a mmsasamre dscpW rypWusea. tingµ Awg0. wlmaY Intl b andu: M/smtivareYdiANettlY. in MPb Nin PaT.nWuaeO.branY FlaMaa NaerlMnlMlMwlacM1 it is WClfimHAmisMrY, rMluui tln plw wdl¢n m5mt d Ikw EIy w'q Ogenvs. a&Huo6 Man�mem9n/a Agammm prrdpldlio Culmnl__ Paw3o,14 Canlmoar __ 11 28"s the Minimum Load, as specified herein. This f will only apply if the average monthly weight of all Containers removed during the month falls below the specified Minimum Load. Contractor may charge a fee equal to the Base Rate per ton multiplied by the difference in tons multiplied by the number of Containers removed during the month. 2.3. Payment Terms & Credit Approval. - Contractors payment terms are Net Thirty (30) days. Customer agrees to make payment at the office of Contractor specified on the invoice within thirty (30) days after the date of Contractors invoice. In the event Contractor has not received payment within twenty (30) days after the date of invoice, Customer will be responsible for paying a late fee on the unpaid balance. Such him fee shall be assessed monthly, beginning on the date of invoice, at the maximum rate allowed by applicable law or 18% per year, whichever is less. This Agreement and Payment terms are effective only after Contractor's approval of Customer's credit 2.4. !Nation Correction. Contractor may increase all rates hereunder annually on the anniversary date of the Effective Date of this Agreement at a rate equal to the most recently published annual percentage increase in the Consumer Price Index (CPI -U), as published by the United Shotes Deportment of Labor for Boston, Brockton, Nashua. (This will typically be the July CPI -U for the Nen eunent service year.) The Contractor and Customer agee that the minimum and maximum increases for inflation correction will he 0% and 5% respectively. Contractor will notify Customer in writing by August 31 of each contract year of the Inflation Correction and Increase in rates (if any) to be effective on the next anniversary of the Effective Dam (September 1). 2.5. Fuel Correction. Contractor will adjust the per ton Base Rates listed in paragraphs 2.I.I.a, 2.1.1.6 and 2J.Le (the "Fuel Correction') on an annual basis to reflect changes in Contractor's costs caused by changes in the cost of Diesel Fuel from the floor price of $ 4.020 per gallon (the "Floor Price). This Fuel Correction will be calculated annually according in the following protocol: 2.5.22.5.1 The Fuel Correction will be based on the listed arithmetic average price for diesel fuel for the months of October, November and December of the then current year of service, as set forth on the FLA Retnil On Highway Diesel Prices index for New England PADD IA (the "Service Year Index Price") or a successor index. This data can be located on the internet at the following web site: him //Iontoeadcegov/e &ia'o/wohdo/d'eselas and is listed in the Spreadsheet of Complete Diesel Historical Dam• Contractor will notify Customer in writing no later than March 1" of each contract year of the Foal Correction and new Base Rates to be eB'ective on the next anniversary of the Effective Date (July 1). The aosommr Is eoartmaesl /mw„ixloeeae.akv o.`m .rrcr o, cows u.a.o wmnaarod0 dwMar [arm avMyar/ntixiry In wlMe dmryK wwM M1vanYWrTnvuMn"rMn M&MMIro1Nle g*xficaAcrhzm Md WIwY Me pvn wMMn tma¢raW M1Nw ErgWq Orpqu25. MnAWa Mmagmem Senlu Agrremenr A.I,xmJlGrnblil r�ruu 11 283 2.5.3 The Fuel Correction will be made according to the following formula: ([(Service Year Index Price/Floor Nice) X 12% X (Base Rate per ton)] — [120/a X Bele Rate per ton])= Fuel Correction per ton The following example is provided for clarification and reference purposes only: Essiample Service Year Index Price = $4.250 Floor Price _ $4.020 Base Rate per ran = $70.00 .([($4.250/4.020) X 120/9X $70.001 -(12 o x $70.00)=$ .48 per ton New Base Rate per ton = $70.00+$:48 = $ 70.48 2.6. Extraordinary Rete Adjustments. 2.6.1. Allowable Adjustments. Contractor may make adjusnnents m cover increases in costs of Common's provision of services (hereinafter "Rate Adjustments") causing from any of the following occurrences (to the extent not resulting from the negligence or willful misconduct of Contractor or Correctors violation of any permit, law or regulation): (i) receipt of Residuals which do not meet the Quality Standard or any material change in the quality of Residuals or excessive odors, bit changes in any laws, ordinances, or regulatory requirements or guidelines or changes in interpretation or enforcement thereof, (iii) recreation, suspensiom denial or modification of any permit, hemse or approval, (iv) extraordinary increases in the cost of electricity or (v) change in price to Contractor of disposal at any third parry site, and all such Rate Adjustments in this Article 2.6.1 are subject to Customer's approval. 2.62 Procedure for Rate Adjustment Contractor shall provide Customer with written notice of any such Rate Adjustments described in Article 2.6.1 and the effective date thereof, together with reasonable justification therefor. If Customer does not reject such Rate Adjustment in writing within seven (7) days after Contractor first gives notice of such adjustment to Customer. Customer will be deemed to have approved such Raze Adjustment. If Customer reject such Rate Adjustment. Contractor shall have the right to terminate this Agreement upon six (6) months written notice, provided that Customer shall not have the right to reject the Inflation or Fuel Correction described above in Article 2.4 and 2.5. (04040. 01 mm.m. rme a000m0m 1e cwm eromr0,mattm,mawe"0to. esmoreelfwmwrea wsrea, Ma o.whnnYemEroerMlmr ryram aremlr vk try. b mlmb w b W,, m usedrd am WrWK oMMPan Mat art "Oft a. cos arr rs NJ, wnmmme mlo,.marm. re0.aatortuam eagamayem0... L 1bmMnnm�Srvke Agrtemem Snnh AgeeJpmrml9 M1'm ExpbM [hgenkv (vxaver ys PI cw.mu. 11 283 Notwithstanding Contractor's notice to so terminate this Agreement. Customer may extend this Agreement at the hmreased rate for up to six (6) months after Contractors notice of the increased rate; provided, Customer notifies Contractor in writing an more than fifteen days (15) alter receiving notice of theeffective termination date, that Customer desires to so extend this Agreement Customers notice shall state the period of the extension. 2.7. Measurement & Reports. Contractor will weigh all Residuals on a certified scale at the Contactods Fertility (les), the Plant or other suitable location, and Contractors weight slips obtained at such scales shall be the basis for measurement and billing for Residuals managed under this Agreement. Contractor will provide Customer with a scale report or shipping report monthly via a -mail, regular mail or overnight delivery. The scale report includes a camplete listing of the data on all the individual scale/shipping records. Contractor will .promptly report to the customer overweight. or underweight loads delivered to the Facility (les), as per Article 1.4 of this Agreement. Prior to removing Containers or trailers loaded with Residuals from Customers Plant, representatives of both Customer and Contractor must sign a Shipping Record prepared by the Contractor to verify information about Ne load contained therein, including the total volume of Residuals in cubic yards. If certified scales are temporarily not available, the signed Shipping Records will be the basis for measurement and billing for the Residuals managed under this Agreement. Contractor will use an assumed density of 1,441 pounds per cubic yard of Residuals, unless density is reasonably documented by the Contractor or Customer to differ by more than five (5) percent. 3. RESIDUALS QUALITY & QUALITY STANDARD 3. I. Quality Standard. Customer warrents that the Residuals identified in this Agreement and supplied to the Contractor are not classified as hazardous waste under United Stares Environmental Protection Agency (USEPA) and/or any other applicable laws & regulations, including but not limited to. state laws and regulations. The Residuals shall meet the requirements of applicable law, regulation and permits for the uses contemplated in this Agreement. Customer will provide Residuals that we not frozen and are free of any trash, hazardous waste or other debris. The Residuals in the forte of Decagonal Biosolids will have no Two liquid, a minimum laud solids concentration of greater than eighteen percent (18%) and pass a paint filter test Together, the above provisions of this Section 3.1 constitute the "Quality Standard." All materials persuaded at the Plant that fail to meet this Quality Standard shall be called "Non -Conforming Wash". Contractor has the right to refuse any Non - Conforming Waste in its sole discretion. Customer shall use reasonable business efforts to generate and provide to Contractor Residuals that mect the Quality Standard. Contractor shall have the right of first refusal to transport, process, recycle and/or dispose of Non -Conforming Waste. Customer shall provide Contractor with a Material Safety Dau Sheet referencing the Residuals. AMP M be n Iyer Mewrenl lee miy.MrMek Wha uN Nor lNl Le Msirarrepms, w,rywe brae ospagenflyorwuo persould.nN u'ulm.dly. mwnoe vurarc wwaemlemwuwta an., m., Ilw ro,wemnrsm.al euv rumwmr. wAM1wt IM pbr twlken mnmM of Abw EnpleM Qpsnva. %xkwvnbmgmmnl.tirvice Ayrnmeiu _. _ nF:reunJluinwul a Fnelwd Rgwlu Y fuvuwv Yv5e4 p/N fmuvnor 11 283 3.2. Changes in Quality. Customer will use reasonable efforts to notify Contractor in writing ninety (90) days in advance of any change in the treatment process at the Plants that could: materially affect the quality of the Residuals. Any material change in the composition of the Residuals to be generated may. in the sole discretion of Contractor, be considered a material change and, in the Contractor's sole discretion, may require new characterization, approval, and price. 4. TIME 4.1. Title to Residuals shall pass to Contractor when Contractor or its subcontractors remove Residuals from the Plant, or in the case where Contractor does net provide transportation, title to Residuals shall pass to the Contractor upon receipt at the Facility (les). Title to and legal responsibility and liability for Non -Conforming Waste shall, at all times, remain with Customer. 4.2. In the event that any of the practices or work performed by the Contractor further governmental and/or non-governmental environmental policy such that offsets. credits, tax effete and the like (hereinafter "Tnviromnenml Credits') are applicable to, or may result from, the Service described herein. Contractor retains the right and title to such Environmental Credits and to the extent practical. Customer will provide substantiating documentation related to the Service. 5. QUANTITIES 5.1. Customer is not obligated to provide a minimum quantity of Residuals to Contractor. However, Customer will provide to the Contractor, and Comment will manage pursuant to this Agreement, all of the Residuals generated at the Plant. Should the quantities may by more than 10% how the quantities specified in the Recitals, and if requested by the Contractor, Customer and Contractor agree to negotiate a mutually agreeable adjustment to the price in Section 2. 6. RESIDUALSANALYSES 6.1. Customer will pay for all laboratory analysis of Residuals (including sampling am ample shipment costs) as required by regulation for the uses contemplated in this .Agreement. including those required by the Facility (ies) and Plant permits Contractor and Customer will promptly provide to each other all laboratory analyses and information which it obtains show the Residuals and which is required for regulatory reporting or necessary to implement their mutual obligations pursuant to this Agreement. 7. TERM, TERMINATION@SURVIVAL 7.1. Term. The Initial Term of this Agreement shall be 5 years. commencing on September I, 2011 (the "Effective Dale'). Thereafter, the term shall be automatically extended for additional five (5) year terns, unless either party provides written notice of termination to the other party by personal delivery, express mail or certified or nw mow uu CAIM6,451v Tow ane area"a do" ,.��re uoecf aspK romea wesnshovd m sumw sessonwdsra "e�.amzwVwd t' anyaw mnmaccs azaom"r n,rmac wnum ma coo`aoAoW e,salo owsws. a.,uoa1' if'wwwwa.,..msrma„ a'n„a nanaara�uru PF 7NN Cnuum iT 283 registered mail, mum receipt requested, at least six (6) months prior to the expiration of the Initial from or any subsequent renewal term. 7.2. Termination. Termination shall be permitted (i) as provided in Article 2.6.2; (it) Immediately upon notice by either party in the event .that any of the representations and warranties contained in this Agreement are shown to be materially untrue; (iii) for Breach, as provided for in Section 12 of this Agrcement; (iv) at any time by Imb patties upon mutual written agreement. 7.3. Survival. The provisions of Section (4) This, Section (11) Im/emn{pcation, and Section (13) Noncircumvanfion. Confidential Information & Intellectual Properly and Section (20) Representations and Warranties ofAuUmrity of this Agreement shall survive the termination of this Agreement without regard for the reason for termination. S. COMPLIANCE WITH LAW B.I. Contractor and Customer agree to comply with all applicable laws and regulations during the performance of their responsibilities under this Agreement. 9. FORCEMAJEURE 9.1. Except for the obligation to pay for services rendered, neither parry hereto shall be liable for its failure to perform hereunder, in whole or in paR due to contingencies beyond its reasonable control, including, but not limited to. strikes. riots. community opposition, war, fire, ads of God, injunction, compliance with changes in any law. regulation or order of any governmental body or any instrumentality thereof. the revocation, suspension, denial or modification of any permit, license or approval regarding transportation, processing, treatment, compacting, land -application, handling and/or disposal of Residuals ("Force Majeure"); provided, however, that any party asserting Force Majeure shall give prompt written notice thereof to the other party and shell act diligently to resume performance at the earliest practicable time. IO. INSURANCE 10.1. Contractor & Customer agree to famish each other upon request with certificates treating to the existence of Workees Compensation insurance providing statutory bevefits and comprehensive business automobile and general liability insurance including bodily injury, property damage, environmental impairment liability and contractual liability with policy limits of not less than $1.000,000 combined single limit, each occurrence. Contractor shall also carry such insurance as may be required by law. It. INDEMNIFICATION 11.1. Contractor, by acceparma of the Residuals identified in this Agreement. agrees. for itself, its successors, and assigns, to defend, indemnify, and hold harmless Customer, its shareholders, officers, directors and employees from and against any e""nne"enebereeres This tlwlQ,remu Cama. a's mronneb are mw nm be (existed fewackc i uroml. mnea. Or o"A"Io be wrwher MM/deINndiNAe[tlr er ^h ce erm ped lwrueed for env MUW<oMe.11r.n metM.Mcanks�.r(' N.aMy MMMea ,slew.(are Inter vnaen moors! of Now answer Ogenct. AedTmL Anego", Svrtae.lXm^ur"nr Srn,F Airred castle EngbWO.wnrca Poge,n14 cooge oo It 283 and all loss, damage, suits, penalties, costs, liabilities, expenses. claims. and actions (including, but not limited to, reasonable investigation and legal expenses) arising from Contractor's handling, transporting. recycling or disposing of Residuals, to the extent said loss, damage, suits, penalties, costs, liabilities, expenses, claims, and/or actions result from the negligence willful misconduct of Contractor or Contractor's breach of the terms and conditions of this Agreement. This indemnity shall be inapplicable to the extent Rat the loss, damage, suits, penalties, costs, liabilities. expenses, claims, and/or actions result from Customer's provision to Contractor of .Hazardous Waste or Nonconforming Waste. 11.2. Customer hereby agrees for itself, its successors, and assigns, to defend indemnify, and hold harmless Contractor its shareholders, officers, directors and employees from and against any and all loss, damage, suits, penalties, costs, liabilities, expenses, claims, and actions (including, but not limited to, reasonable investigation and legal expenses) wising am of any claim of tortuous interference. restraint of trade or any similar type of claim or any claim for loss of, or damage to, property, including Contractor's property. and injuries to, or death of persons including Contractor's employees, to the extent caused by, or resulting From, Customer's: (i) negligent willful misconduct; or (ii) provision to Contractor of Non -Conforming Waste, or (iii) any other breach of the conditions of this Agreement. 11.3. CUSTOMER AND CONTRACTOR AGREE TO MUTUALLY WAIVE SPECIAL, INDIRECT, INCIDENTAL, CONSEQUENTIAL OR PUNITIVE DAMAGES BETWEEN THE PARTIES. 12. BREACH & NONPAYMENT 12.L Neither party, may cancel or terminate this Agreement ("terminaling party") as a result of the other patty failing to substantially perform its obligations hereunder ("breaching party") unless such failure shall continue for more than thirty (30) days after the terminating party has notified the breaching party thereof in writing. If any payment required w be made by Customer hereunder is past due, Contractor, in addition to all other rights and remedies it may have, may suspend any or all services (including provision of equipment) omit all past due amounts are paid. 13. NON -CIRCUMVENTION, CONFIDENTIAL INFORMATION & INTELLECTUAL PROPERTY 13.1. During the term of this Agreement, it may be necessary or desirable for the parties to exchange "Conftdentiul" m propriety information as is required for each to perform its obligations hereunder, including but not limited to identification. of Committees Facility (les) used for service hereunder. Contramor's mtea, the content of [Itis Agreement, and Contractor's customer list. Each parry agrees to use only for the mounted purposes and to maintain in confidence any information designated herein or Inter in writing as "Confidential" by the other Party during the rear of this Agreement. and for a period of three years atter termination of this Agreement The standard of care cenaa,eme W.m.do, maMrs Cm/NanllallMomielim and Shall norbe dsdutM .apMunp cpeaq Axassa an bourmtlb aroma. Pa'mn 0avWy a'IorWadae mwhde cam pan", load lwawpwMtt dM.tlian me broads d h sp.ife NmrahM Meant me Pao' olaM1nnmsen(ofM1kw E,dleM Og nrcs Fimpgew til Servlet Agrcenrtm $sePb AID tlxbb/ll m End, 14 ha gmn tor, 9llJ tar, 11 283 for protecting such information, imposed on the parry receiving such Information will be that degree of care the receiving party uses to pmveat disclosure publication or dissemination of Its own confidential or proprietary information. The partes acknowledae that Customer am corporation subject t Mae ns Freedom of Access Act I M R S. A&401 et se and en ent reusrd'nv contdenhaIW -s sub'eet to and limited by said Freedom of Access ActEach party shall endeavor m notify the other in the event that either receives a roquest for information. I I... per, Obligations of coMdentudity shall not apply to any information to the extent itis (a) in the public domain, (b) learned from a third party not in breach of any confidemiality obligation, (c) already known without restriction by the party receiving it at the time of disclosure, or (d) required by court or regulatory order to be disclosed. 13.2. Any and all inventions, improvements, techniques, methods, designs, processes, procedures stupor works of authorship developed, conceived, conceptualized, produced, described or made by Contractor or its employees, agents or subcontractors in connection with or related to the performance of Contractor's services oder this Agreement (collectively, "Connector's Intellectual Prolerry'7, whether or not patentable or copyrightable, shall at all times be and remain the sole and exclusive property of Contractor, and Contractor shall have and retain all rights and privileges of ownership therein and thereto, including, without limiation. the rights to file patent or trademark applications or copyright registrations, to license, assign, sell, transfer or convey any or all of the parameter's Intellectual Property or any right or interest therein m any other person, fnn or entity, and to receive and reads any and all fes, proceeds or other consideration attributable to any such license, assignment, sale, transfer or conveyance,roo vided that. during tire'I ever of this Agreement, Contractor shall license to Customer all of the Contractor s Intellectual Property on a ren -exclusive basis for use at the Facility lies) without any additional charge, compensation or consideration therefore. nwnIsIde mm.n,arbe Ito cbC,n,ret4 cwiaercif uawmaNan am Mau net be mxnxe Oeamuco. teles, ro eaor eenx,w,l ro,nnpre, Wrmn dwom oriMvecsy rn able Or W 00 w see k, a a W alter men Her fen who-lre" y cficarhomlorw wr1lMW ere glror wrilen wnxm of nbw ErigeM d.... wa,heb varegemem Rnrrcegeeaem Sne q doeuh/nnmGV PamlOgi4 Cmmow - 11 283 ASSIGNMENT 13.3. This Agreement is assignable only with the written consent of both parties and shall be binding upon and inure to the benefit of the parties hereto and their respective successors and assigns; provided, that such consent shall not be unreasonably withheld or delayed, nor required in the event of (I) assignment by operation of law. including I 1 U.S.. Section 365, (ii) assignment to an affiliate, parent or subsidiary of Contractor, (iii) assignment to an affiliate, parent or subsidiary of Customer, IN) assignment or transfer in connection with the sale of a substantial portion of Contractor's and/or its affiliates' land application or residuals business. (v) assignment or transfer in connection with the subcontracting or sale of substantial portion of Common's business (SEWER AND WASTEWATER ACTIVITIES AND SERVICES); or (vi) assignment by Customer solely for the purpose of financing the Plant. 14. SUCCESSORS AND ASSIGNS 14.1. This Agreement and all of the provisions thereof and hercof shall be binding upon and more to the benefit of the patties and their respective successors and permitted assigns. IS. NOTICES 15.1 Notices of conditions or situations effecting services hereunder shall be given verbally or in writing between designated operating personnel of Customer and Contractor. A11 other notices shall be given in writing to the parties at their respective addresses shown above, either by personal delivery or certified mail, return receipt requested, and In the case of Contractor, to the attention of the General Manager. 16. GOVERNING LAW 16.1. This Agreement and all issues arising therefrom or relating thereto shall he governed and construed by the laws of the State of Maine without regard to conflicts of laws provisions that would apply the law ofanotherjmisdiction. 17. SEVERABILITY IZI. If any of the provisions of this Agreement or any portion thereof or the application thereof, in any particular person or circumstance, is held to be invalid by a Court of competent jurisdiction, or arbitrator, die remainder of this Agreement, including the remainder of any such provision, and the applications thereof. shall not be adversely affected thereby. 1S. INDEPENDENT CONTRACTOR 19.1. Contractor's relationship with Customer under this Agreement shall be that of an independent contractor. The employees, procedures, equipment and facilities used by the Contractor shall at all times, be under its exclusive direction and control. Nothing in this Agreement shall be construed to desigmate the Contractor. or any of its Uenamrmu.mr.ew. - rrae eo XMio is eor�rwamxar rrrrdm..neaeavnoeeea+wa.a r a�eu'.ea �wmd memo. orwrrmrreemn wire. rte diftsvnorme„m=uvmwnd:.wmreu,iwr.�na.rrrarw.aomwmee mumrw nam 'n rmavrea WMoA so qnr wntton mnwM dhow census ngfleea. _. /4 vJwl�apiwgexrery Frvm ABrxrcem 5¢m ft Apeetl lGnrrvW rGg/vW lApnrc+ _ _ _ it 283 employees, agents or suhconracrors, as employees, agents, joint ventures or Fanners of Cummer. 19. REPRESENTATIONS AND WARRANTIES OF AUTHORITY 19.1. Foch party represents and warrants to the other that: 19.1.1. It is duly qualified to do business and is in good standing in every jurisdiction in which this Agreement requires its performance; 19.1.2. It has full power and authority to execute, deliver and perform its obligations under this Agreement; 19.1.3. The execution, delivery will performance of this Agreement have been duly and validly authorized by all necessary action by such party; and 19.1.4. The execution and delivery of this Agreement by such parry and the performance of the terms, covenants and conditions contained herein will not violate the articles of incorporation or by-laws of such party, or any order of a court or arbitrator, and will not conium with and will not constitute a material breach of, or default under, the provisions of any material contract by which either party is bound. 20. LIMITATION OF LIABILITY 20.1. Neither parry shall be liable to the other for special, incidenml, exemplary, excessive, punitive or consequential damages including without limitation loss of use, loss of profits or revenues, suffered, assents or alleged by either party or any third party wising from or relating to this Agreement, regardless of whether those damages are claimed under contract, warranty, indemnity, tort or any other theory at law or in expiry. 21. NON -WAIVER 21.1. No waiver by any party to this Agreement of any failure or refusal by the other party to comply with is obligations shall be deemed a waiver of any other or subsequent failure or refusal to so comply. No waiver by either Party of any right or remedy hereunder shall be valid unless the same shall be in writing and signed by the Party giving such waiver. No waiver by either Party with respect to any default, misrepresentation, or breach of warranty or coverant hereunder shall be deemed to extend many prior or subsequent default, misrepresentation, or breach of warranty or covenant hereunder or affect in any way any rights arising by virtue of any prior or subsequent such occurrence. 21 NO THIRD PARTY BENEFICIARIES 22.1. Nothing in this Agreement, express or implied, is intended to confer upon any third party any rights, remedies, obligations, or liabilities under or by reason of this. Agreement, except as expressly provided in this Agreement. me mrwaanin(WAn:rmr mmrraeoa mcmas rico m wwmail reprrowd, asvau coarse, a tolls ata to awna waMNMeMaprM'aNaemm�roMMrorneaio nry¢Mcv It wgxxxRoly1wohoi ReaMimlr Abmgernenr4mrce Agrremenr Sernk AgieeJlrnomral ,PW 12m,reaw.a, rawnyr.r It 283 23. DISPUTES 23.1. Unless otherwise ordered by the court, if a claim or dispute arises out of this Agreement or its performance, the parties agree to endeavor in good faith to resolve it equitably through negotiation, or if that fails, through non-binding mediation under she rules of the American Arbitration Association, before having recourse to the. courts. Each party shall bear its own costs and expenses related to any mediation Including, without limitation, attorneys' fees. Each party shall bear an equal share of the arbitrators' and administrative fees of arbitration. However, prior to or during negotiation or mediation, either party may initiate litigation that would otherwise become barred by a statute of limitations. 23.2. Notwithstanding the foregoing to the contrary, the parties hereby understand and agree that where a party believes it may suffer immediate and inoperable harts and damage should a party fail m comply with any of its obligations under this Agreement and that monetary damages will be inadequate to compensate such party for such a breach ofthis Agreement, the parties agree that a party shall not be required to proceed with mediation as described herein but shall be entitled to all appropriate relief, including, without limitation, injunctive and other equitable relief, by a cow of competent jurisdiction to enforce the neons of this Agreement including the payment of reasonable attorneys fees and costs. 24. CONSTRUCTION 24.1. This Agreement and its exhibits and schedules are the result of negotiations between the parties and have been reviewed by all parties. Accordingly. this Agreement will be deemed to be the product of the parties thereto and an ambiguity will be construed in favor of or against any party. 25, ENTIRE AGREEMENT 25.1. This Agreement constitutes the entire understanding between the parries hereto, and cancels and supersedes all prior negotiations, representations, understandings and agreements, either written or oral, with respect to the subject matter hereof. No changes, alterations or modifications to this Agreement will be effective unless in writing and signed by both parties. eoaae<Iaa mfar,,wl ovs da 11 is coaee rate vrr.wnaaa bane rat be divbOmd, woroew.e. w.aa asa.e, a, t Sftboaaro arehar Pen'ar aeaavv w aeanaur. m waaro.. v, re+: � babe m, aar eaw+. mmw tree oar ro. conks a a+wneaaer narwne, wanwumala7or,wwran:.mare,. ea¢mm o,oa7zb rsne�aaua„as.,ne.,s,,..,ans.n..z,” sHam:w..:ernr,mrm Pogo 13 Pll! 11 283 Execoul and agreed as of the day and year last written below. Authorized Agent for Contractor Authorized Agent for Customer New England Organics City of Bangor By: By: (signatrav) (signature) Cnemntall mi. eon murbcumenl o GMeuIW Inlwmelmw 00 MNlmctw axone, npma2ne: mpbE Iminer a -&w0 me m wmlMi %/emdnmNmivlvMly.mwt(*wrvrwrt M?UMIr nye!npo»nmerla%n IM(b✓M1IM e,s sRecawPy hvMNne. wlNput Ma pvr wripmm�ignl dNew Enplen0ppeeks RwMiwR Momgemani Anne Age., 3rcnd Ag dlea e) MMpgyvrcr (vuave ____ ageNflJ Cmnaiw