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.
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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
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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
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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
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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).
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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.
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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.
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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
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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
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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
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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.
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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. -
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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.
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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.
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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)
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