REQUEST
FOR
PROPOSALS
FOR
TRANSPORTATION AND RECYCLING OF ASH RESIDUE
FROM THE MONTGOMERY COUNTY RESOURCE
RECOVERY FACILITY
BY
NORTHEAST MARYLAND WASTE DISPOSAL AUTHORITY
Date of Issue: December 8, 2015
Request for Proposals for Transportation and Recycling of Ash Residue
from the Montgomery County Resource Recovery Facility
Date: December 8, 2015
Table of Contents
PART I – GENERAL INFORMATION .................................................................................... 3
1.1
1.2
1.3
1.4
1.5
1.6
1.7
1.8
1.9
1.10
1.11
PURPOSE ........................................................................................................................ 3
CONTACT PERSON ...................................................................................................... 3
PRE-PROPOSAL CONFERENCE AND SITE VISIT ................................................... 3
WRITTEN QUESTIONS AND REQUESTS ................................................................. 4
AMENDMENT OR CANCELLATION OF THIS RFP ................................................. 4
SUBMISSION REQUIREMENTS ................................................................................. 4
IRREVOCABILITY OF PRICE PROPOSAL ................................................................ 5
PUBLIC INFORMATION ACT ..................................................................................... 5
INCURRED EXPENSES ................................................................................................ 5
PROCUREMENT REGULATIONS ............................................................................... 5
NON-DISCRIMINATION AND EQUAL EMPLOYMENT OPPORTUNITY ............ 5
PART II - CONTRACT INFORMATION AND SCOPE ......................................................... 6
2.1
2.2
2.3
2.4
2.5
SCOPE OF SERVICE ..................................................................................................... 6
TERM .............................................................................................................................. 6
PARTIES TO THE AGREEMENT AND ACCEPTANCE OF TERMS ....................... 6
MINIMUM QUALIFICATIONS .................................................................................... 7
FINANCIAL QUALIFICATIONS .................................................................................. 7
PART III – REQUIRED CONTENT OF PROPOSALS ........................................................... 8
3.1
3.2
3.3
3.4
3.5
TECHNICAL PROPOSAL ............................................................................................. 8
COST PROPOSAL ........................................................................................................ 13
PROPOSAL BOND AND PERFORMANCE BOND .................................................. 13
PROPOSAL CHECKLIST ............................................................................................ 13
ALTERNATE PROPOSAL........................................................................................... 13
PART IV - EVALUATION PROCEDURE ............................................................................ 14
4.1
4.2
4.3
4.4
EVALUATION COMMITTEE ..................................................................................... 14
DISCRETION IN DETERMINING DEVIATIONS AND COMPLIANCE ................ 14
PROCUREMENT METHOD ........................................................................................ 14
EVALUATION CRITERIA .......................................................................................... 14
PART V - ADA COMPLIANCE ............................................................................................. 16
5.1
ALTERNATIVE FORMS: ............................................................................................ 16
i
Request for Proposals for Transportation and Recycling of Ash Residue
from the Montgomery County Resource Recovery Facility
Date: December 8, 2015
ATTACHMENTS
A.
B.
C.
D.
SERVICE AGREEMENT (WITH SCHEDULES)
PRICE PROPOSAL FORM
PROPOSAL CHECKLIST
RRF SITE PLAN
ii
REQUEST FOR PROPOSALS
For
Transportation and Recycling of Ash Residue
from the Montgomery County Resource Recovery Facility
The Northeast Maryland Waste Disposal Authority (the “Authority”) is requesting proposals from
qualified companies to provide the acceptance and transportation by rail of Ash Residue generated
at the Montgomery County Resource Recovery Facility located in Dickerson, Maryland to its
permitted Processing facility for Recycling and/or Beneficial Reuse.
The Authority is a public corporation established by Title 3, Subtitle 9 of the Natural Resources
Article of the Maryland Code to assist participating political subdivisions of Maryland and other
public entities in providing adequate solid waste disposal facilities, including facilities for the
generation of steam, electricity or fuels, and recovery of materials that are derived from or are
otherwise related to waste disposal. Participating jurisdictions ("the Members” or “Member
Jurisdictions”) include Baltimore City, and Anne Arundel, Baltimore, Carroll, Frederick, Harford,
Howard, and Montgomery Counties. Maryland Environmental Service, an instrumentality of the
State of Maryland, is an ex-officio member. The Authority acts as a coordinating agency and a
financing vehicle for solid waste management projects. Additional information on the Authority
is on our web page, www.nmwda.org.
Copies of this Request for Proposals are available from the Northeast Maryland Waste Disposal
Authority at 410-333-2730, procurement@nmwda.org, or at the address below:
Northeast Maryland Waste Disposal Authority
Tower II – Suite 402
100 South Charles Street
Baltimore, MD 21201-3330
A Pre-Proposal Conference and site visit will be held at on Thursday January 7, 2015 at 10:00
a.m. at the Montgomery County Resource Recovery Facility located at 21204 Martinsburg
Road, Dickerson, MD 20842.
Proposals will be accepted until Wednesday, March 9, 2016 at 2:00 p.m.
Christopher W. Skaggs, Executive Director
Dated: December 8, 2015
1
PROPOSER’S CONTACT INFORMATION FORM
Company Name:
Address:
Primary Contact - Name:
Title:
E-mail:
Telephone:
Fax:
Secondary Contact - Name:
Title:
E-mail:
Telephone:
Fax:
All contact and correspondence relating to this Request for Proposals will be sent to your Company
by e-mail. We reserve the right to fax correspondence if necessary.
Please e-mail, fax or mail completed form to:
Procurement
Northeast Maryland Waste Disposal Authority
Tower II – Suite 402
100 South Charles Street
Baltimore, MD 21201-2705
Fax: 410-333-2721
Email: procurement@nmwda.org
2
REQUEST FOR PROPOSALS
For
Transportation and Recycling of Ash Residue
from the Montgomery County Resource Recovery Facility
PART I – GENERAL INFORMATION
1.1
PURPOSE
The purpose of this Request for Proposals (“RFP”) is to select a firm that will enter into a
Service Agreement with the Northeast Maryland Waste Disposal Authority (“Authority”)
to provide acceptance and transportation by rail of Ash Residue generated at the
Montgomery County Resource Recovery Facility located in Dickerson, MD to a permitted
Processing facility for Recycling and/or Beneficial Reuse in a manner that enables
recycling credit to be given to Montgomery County, Maryland in accordance with
Maryland Department of the Environment recycling guidelines and regulations.
1.2
CONTACT PERSON
Any communication regarding this RFP must be made in writing and directed to the
attention of Procurement, Montgomery County Ash Beneficial Use RFP, Northeast
Maryland Waste Disposal Authority, 100 South Charles Street, Tower II – Suite 402,
Baltimore, MD 21201, procurement@nmwda.org or fax at 410-333-2721. Prior to award
of this contract, Proposers should not initiate any communications related to this project
with employees or local elected officials of any Member Jurisdiction.
Any
communications other than to procurement@nmwda.org may result in the disqualification
of a Proposer’s proposal.
1.3
PRE-PROPOSAL CONFERENCE AND SITE VISIT
There will be a pre-proposal conference followed by a site visit on January 7, 2015 at 10:00
A.M.at the Montgomery County Resource Recovery Facility (RRF), 21204 Martinsburg
Road, Dickerson, MD 20842. Attendance at the pre-proposal conference is not mandatory
but is strongly encouraged. If it becomes necessary to reschedule the conference and site
visit, due to inclement weather, etc., information regarding the new date and time will be
posted on the Authority’s website at the following link: http://nmwda.org/procurementopportunities/, and prospective Proposers that have requested a copy of this RFP, or
completed and submitted the Proposer’s Contact Information Form provided with this RFP,
will be notified.
3
1.4
WRITTEN QUESTIONS AND REQUESTS
Prospective Proposers may submit written questions only concerning the project or this
RFP to procurement@nmwda.org. Questions may be submitted via e-mail, fax, or by mail.
The Authority will endeavor to respond in writing to requests for information submitted by
January 15, 2016; however, the Authority makes no assurance that written responses will
be tendered if, in the opinion of the Authority, such information is evident in the RFP or
goes beyond the intended scope of this solicitation. Any written responses to questions
made will be emailed or faxed in the form of an addendum to all prospective Proposers
who requested a copy of this RFP or who completed and submitted the Proposer’s Contact
Information Form. Only answers issued by written addenda will be binding on the
Authority.
The Authority will entertain requests for samples of the Ash Residue from the RRF by
prospective Proposers who submit a request in writing by January 15, 2016. This request
should include the amount of material requested and the vehicle the Proposer will be using
to retrieve the material. The material will be provided at an agreed upon date and time
between the Proposer and the Authority upon the execution of a waiver signed by the
Proposer absolving and indemnifying the Authority, Montgomery County, and Covanta
Montgomery from any damages related to providing the Ash Residue.
1.5
AMENDMENT OR CANCELLATION OF THIS RFP
If this RFP requires amendment, written notice of the amendment will be given by means
of an addendum to all prospective Proposers who requested a copy of this RFP or who
submitted the Proposer’s Contact Information Form. Receipt of addenda must be
acknowledged in writing by prospective Proposers to the Authority. Acknowledgment by
facsimile and e-mail is permitted. Copies of the acknowledgments are to be included in the
proposal. The Authority reserves the right to modify, amend or cancel this RFP if the
Authority determines, in its sole discretion, that it is in the best interest of the Authority to
do so.
1.6
SUBMISSION REQUIREMENTS
Five (5) paper copies, and Three (3) electronic copies on CD-ROM or USB thumbdrive,
of the proposal must be submitted in a sealed envelope, labeled “Transportation and
Recycling of Ash Residue from the Montgomery County Resource Recovery Facility”
and received no later than March 9, 2016 at 2:00 p.m. (the “Closing Date”) at the
Authority’s office. Any proposals received after this time will not be considered. All
submissions will be time and date stamped when received.
The proposal should be printed double sided on minimum 30% post-consumer recycled
content paper. Proposals not double sided or printed on recycled content paper may be
rejected.
Proposals must be delivered to the attention of Procurement, Montgomery County Ash
4
Beneficial Use RFP at:
Northeast Maryland Waste Disposal Authority
100 South Charles Street, Tower II – Suite 402
Baltimore, MD 21201-2705
Proposals may not be submitted by e-mail or facsimile.
1.7
IRREVOCABILITY OF PRICE PROPOSAL
The prices proposed under Section 3.2 of the this RFP will be irrevocable for a period of
180 days from the Proposal Closing Date, or, if modified during negotiations pursuant to
Section 4.3, for a period of 120 days from the date such modified rates are proposed by the
Proposer.
1.8
PUBLIC INFORMATION ACT
Proposals submitted in response to this RFP are subject to the Maryland Public Information
Act. Proposers should identify those portions of their proposals that they consider to
contain confidential, proprietary commercial information, or trade secrets. Proposers are
advised that, upon request for this information from a third party, the Authority is required
to make an independent determination as to whether the information can be withheld under
the law. If the Authority determines that materials marked as confidential must be
disclosed under the law, the Authority will notify the Proposer in advance of releasing the
information to permit the Proposer to take independent action to protect the
information. Proposers agree that the Authority has no liability for release of information
it determines in good faith must be disclosed under the law.
1.9
INCURRED EXPENSES
The Authority is not responsible for any expenses that Proposers may incur in preparing
and submitting proposals.
1.10
PROCUREMENT REGULATIONS
This RFP, and any contract entered into as a result thereof, are not subject to the provisions
of the Maryland Code, State Finance and Procurement Article, but are governed by Section
3-921 of the Natural Resources Article of the Maryland Code and by COMAR 14.13.01.
1.11
NON-DISCRIMINATION AND EQUAL EMPLOYMENT OPPORTUNITY
Proposers must comply with all applicable federal, state, and local laws and regulations
pertaining to non-discrimination and equal employment opportunity.
5
PART II - CONTRACT INFORMATION AND SCOPE
2.1
SCOPE OF SERVICE
The Proposer must:
 Provide all labor, materials and equipment necessary to perform the services herein
described.
 Provide all equipment necessary at the RRF for transport and loading of the ash
containers from the ash loading building to the RRF railyard.
 Provide containers for the storage and transport of approximately 150,000 to
200,000 tons per year of Ash Residue produced at the RRF.
 Provide railroad service and cars and necessary vehicles for the transportation of
Ash Residue from the RRF to the Proposer’s processing location.
 Providing for the Recycling and/or Beneficial reuse of the Ash Residue in
accordance with federal, state, and local recycling and other applicable regulations.
The services required are more fully set forth in the Service Agreement (Attachment A).
2.2
TERM
The contract term will begin on or about July 1, 2017 and will be for seven (7) years, plus
one (1) optional seven (7)-year term to be exercised at the sole discretion of the Authority.
2.3
PARTIES TO THE AGREEMENT AND ACCEPTANCE OF TERMS
The Agreement to be entered into as a result of this RFP (the “Agreement”) shall be by and
between the Proposer as Contractor (the “Contractor”) and the Authority. The form of the
Authority’s Agreement is set forth in Attachment A. All capitalized terms in this RFP that
are undefined shall have the meaning set forth in Schedule I of the Agreement. By
submitting a proposal in response to this RFP, the Proposer agrees to accept the terms of
the Agreement in Attachment A. Any proposed exceptions to the terms of the Agreement
must be submitted in writing on or before December 14, 2015 as described in Section 1.4
of this RFP. If the Authority decides to make any changes in the terms of the Agreement
in response to proposed exceptions, all such changes will be distributed to potential
Proposers via an addendum issued prior to the proposal submission date. A proposal that
proposes or requires changes to the Authority’s Agreement that were not raised prior to
submission may be rejected without further evaluation. The Authority may, during the
negotiation process, negotiate changes to the terms of the Agreement, but is not required
to do so, and Proposers should not assume that they will have the opportunity to do so but
should identify proposed exceptions to the Authority in advance of submitting their
proposals.
6
2.4
MINIMUM QUALIFICATIONS
The Proposer shall demonstrate that it meets the following minimum requirements:


2.5
Five years experience of the Proposer as a Corporate Entity.
Key personnel with a minimum of five (5) years of experience in the collection and
Beneficial Reuse/Recycling of Ash Residue
FINANCIAL QUALIFICATIONS
The Proposer shall provide the following information for all companies, subsidiaries and/or
parent companies that will work on the project. Information shall be submitted in a form
which is in accordance with generally accepted accounting principles.

Copies of most recent 10-Ks filed with the U.S. Securities and Exchange Commission
(SEC) and all 10-Qs since the last 10-K; or, if a 10-K Form is not filed with the SEC,
the following (Note: In addition to the following information, a Company may be
required to submit additional financial information to satisfy other governmental
reporting and disclosure rules):
 Certified audited financial statements or annual financial reports for the past three
fiscal years to include at a minimum, income statements, balance sheets, and
statements of changes in financial position. If less than three (3) years of financial
statements are available, this information should be provided to the fullest extent
possible.
 Copies of the latest quarterly financial report.
 A copy of the latest annual report.
 Information on any material changes in the mode of conducting business,
bankruptcy proceedings, assignments of accounts or assets, corporate restructuring,
and mergers or acquisitions within the past three years, including comparable
information for related companies and company principals.
 Information on the firm's access to bank lines of credit, revolving credit agreements,
or other sources of working capital funds.

A copy of the prospectus and official statement, if any, for the firm's latest security
offerings.

The rating on outstanding corporate debt, if any has been issued, with recent copies of
the rating agency reports on that outstanding corporate debt.
7

A description of all financial commitments in excess of one million dollars ($1,000,000)
presently obligated, including completion guarantees on all construction projects and
operating agreements and their bearing on the firm's financial ability to guarantee the
performance and other requirements of this project.

A description of any outstanding contractual arrangements, including off-balance sheet
items, that may have a bearing on the ability of the firm to meet its obligations to the
Authority, with respect to:
 Corporate guarantees.
 Affiliations.
 Partnerships and/or joint ventures (describe assets and liabilities).
 Other sources of guarantees that may exist.

Evidence of the ability to obtain a performance bond in the amount required by the Service
Agreement.

Pending or potential legal actions that would materially affect the firm's financial situation
and/or its ability to meet its contractual obligations to the Authority.

Provide current Maryland State Department of Assessments and Taxation certification that
all companies that will perform work on the project are qualified to do business in
Maryland, or provide information establishing that companies will be qualified to do
business in Maryland before the start of the contract.
The Authority reserves the right, in its sole discretion, to require a corporate guaranty if the
Authority determines that one is required because of the structure or finances of a Proposer.
PART III – REQUIRED CONTENT OF PROPOSALS
3.1
TECHNICAL PROPOSAL
The technical proposal shall be no more than 80 pages in length, double sided.
A.
Description of Company

Name of Proposed Firm.

Business Address.

Type of Organization.

Proposer's authorized representative and contact information including
8
telephone and Email information.
B.

Number of Years the Proposer has been in business under the present name.

List any other names under which your firm has done business during the
past ten years and indicate the years during which the firm was so named.

If the Proposer is a subsidiary of another firm or is intended to be a newly
created subsidiary, include the information requested in the bulleted items
above for the parent company and describe the role of the parent company
in this project.

If the Proposer is a joint venture or partnership, attach to this form a
narrative description identifying the relationship and responsibilities of the
members of the joint venture or partnership and the mutual contractual
obligations of the members and include the information requested above for
all members.

Disclose if the Proposer, or any parent, subsidiary, or affiliated
organization, has ever been convicted of any misconduct or been fined an
amount greater than $10,000 for a civil or criminal violation of any federal,
state, or local statute or regulation in connection with a solid waste or
transportation service agreement or the provision of transportation, solid
waste or recycling services. If there is information to disclose, state the
name of the person, the name of the firm, the case number, and the
circumstances surrounding the conviction or violation.

List any and all subcontractors that may perform more than ten percent of
the project value.
Qualifications to Perform Work
The proposal must address the experience of the Proposer in transporting and
processing of Ash Residue. The Proposer is required to provide facilities,
equipment, maintenance, and labor to transport Ash Residue from the RRF to a
permitted Processing Facility. Residue must leave the RRF site by rail, in
accordance with a local community agreement to minimize truck traffic. Truck
transport of Residue would only be allowed in emergency situations with the
approval of the Authority and Montgomery County. The Proposer shall determine
and present in its technical and cost proposal the method of loading and transporting
the Ash Residue and the location of the final recycling location.
(a)
Proposer’s Experience with transport and processing of recovered
material

Provide the following information for projects that clearly
demonstrates the Proposer’s experience in similar projects involving
9
Ash Residue transport by railroad (including management of shorthaul and long-haul systems), Recycling and Beneficial Reuse of Ash
Residue, compliance with Maryland Department of Transportation
(MDOT) transport regulations; compliance with federal railroad
transport regulations; operating intermodal facilities (if applicable);
and operating, maintaining, permitting, and monitoring waste
management facilities. Provide up to three single page descriptions
of the projects performed in the past ten years that are similar to the
project described in this RFP. Project descriptions should, at a
minimum, provide the following information:
(b)

Name and location of Processing Facility.

Facility owner and references, owner contact, address, and
telephone number.

Regulatory agencies of jurisdiction, agency names, references,
contacts, addresses, and telephone numbers.

Year developed.

Facility design, capacity, and remaining capacity over twenty years.

Description of Proposer’s involvement in the project with respect to
long-haul transport, mode of transport, and intermodal transfer, if
any.
Résumés of Key Officers and Project Team Leaders

Provide résumés of the Proposer's key officers or principals. Provide
résumés for persons responsible for the following project functions
and the percent of time committed to this project:

Project manager (and primary contact person if different).

Contract Administrator.

Finance Manager.

Equipment procurement and installation.

Construction Management.

Operations.

Maintenance.
10

(c)
Records and administration.
Organization Chart
Include an organization chart in the technical proposal. Provide sufficient detail to
indicate the relationship between all personnel for which résumés are included.
C.
Description of Facility and Services proposed
This section presents the requirements for the service proposal.
(a)
Technical Proposal Requirements

Submit a description of the Proposer’s technical proposal for
Transportation and Recycling of Ash Residue from the Montgomery
County Resource Recovery Facility. The Technical Proposal shall
address technical components for the service from the RRF.

The project description shall include, but not necessarily be limited
to, the elements listed below.
1)
Describe proposed railroad transportation equipment and
any over the road equipment needed, including the number
of containers and railcars to be used along with specific
dimensions of the equipment, and provide a detailed plan for
maintenance and replacement of the equipment.
2)
Describe proposed equipment to be used to load and move
containers containing Ash Residue at the RRF, including
maintenance and replacement plans.
3)
Identify processing location, including a description of the
processing, storage capacity, daily throughput, etc., with a
guarantee that these locations will be able to accept and
Process all Ash Residue delivered, and will be able to
Recycle or Beneficial(ly) Reuse all of the Ash Residue to the
maximum extent possible. The Proposer may propose a
guaranteed minimum Ash Residue Recycle or Beneficial
Reuse rate.
4)
Describe the post-processing materials that will be Recycled
or Beneficially Reused (per the requirements of the state in
which the material is processed, which should be attached to
the proposal).
11
(b)
5)
Provide guarantees on the amount of Ash Residue to be
Recycled or Beneficially Reused (See Section 2.1 of the
Service Agreement in Attachment A).
6)
Describe any modifications, both physical and operational,
that the Contractor desires at the RRF in order to facilitate
the loading of Ash Residue. (Note that the Contractor must
include in its Cost Proposal any capital costs for
modifications to the RRF. Any costs for operational changes
that are proposed by the Contractor and accepted by the
Authority will be considered when evaluating the Proposal.
The Authority does not guarantee that it will accept any
physical or operational changes at the RRF)
7)
Describe the disposal of any residual material.
8)
Describe contingencies for backup methods for
transportation and processing of recyclables in the event of
work stoppage, lack of access to processing facilities or
declines in market values of recycling commodities.
9)
Proposers must provide information on their proposed
backup recycling and/or disposal site. The contingency plan
shall demonstrate the availability of the recycling and/or
disposal site for use by the Company and that the backup
recycling and/or disposal site meets the requirements of the
proposed recycling and/or disposal site.
10)
Clearly describe the railcar, container and processing
methods it intends to use for the transfer and processing of
Ash Residue, including a thorough transportation analysis
demonstrating the quantity and size of the containers that are
proposed. This description shall be the basis for the
Proposer’s Operations Plan required in Schedule IV of the
Service Agreement.
Transfer Station Operations
While use of the Shady Grove Processing Facility and Transfer Station
should not be considered in the primary transportation system, it could
potentially serve a role in a contingency plan. If the Proposer intends to
include the Transfer Station in contingency planning, it must indicate any
proposed modifications to the Transfer Station’s Operations Plan in
sufficient detail to assure that the modifications fully comply with the
County’s Transfer Station permit conditions.
12
D.
Environmental Compliance
Disclose if the Proposer, or any parent, subsidiary or affiliated organization, has
been convicted of any misconduct or fined an amount greater than $10,000 for a
civil or criminal violation of any federal, state, or local statute or regulation in
connection with the operation of a waste disposal, recycling or waste processing
facility, or has been issued any violation notice, compliance order, consent order or
other enforcement documents during the previous two years in connection with the
operation of a waste disposal, waste handling, recycling or waste or ash residue
processing facility. If any such conviction, fine, notice, order, or other document
is disclosed, state the name of the person and the name of the firm involved, the
identity and location of the relevant facility, a description of the nature of the
conviction or violation, the outcome of the event, and provide a copy of any
violation notice, or compliance or consent order.
3.2
COST PROPOSAL
Cost proposals must be submitted on the form at Attachment B.
The cost proposals must be all inclusive for providing the goods and services specified
and described in the Proposal. These goods and services must conform to all applicable
specifications, codes and regulations and the proposed price must include the cost of
complying with all applicable specifications, codes and regulations.
3.3
PROPOSAL BOND AND PERFORMANCE BOND
Proposers must submit a Proposal Bond in the amount of $20,000 payable to the
Authority.
Proposers must submit a letter or similar document from a surety licensed to do business
in the State of Maryland committing to the issuance of a performance bond, or from a
financial institution with a rating of A or better committing to the issuance of a letter of
credit, in the amount of and substantially in the form described in the Service Agreement
at Schedule XI. The performance bond or letter of credit must be for the initial term and
the extension periods. Prior to execution of the Agreement between the Authority and
Contractor for services under this RFP, the Contractor must provide the Authority with
the fully-executed performance bond or letter of credit.
3.4
PROPOSAL CHECKLIST
The completed Proposal Checklist in Attachment C must be submitted with the
Proposal.
3.5
ALTERNATE PROPOSAL
The Authority requires all Proposers wishing to bid on this RFP to respond to the content
13
requirements provided within this Part III of the RFP. However, Proposers may
additionally propose alternate proposals and scenarios that will also fulfill the intent of
this RFP. The Proposer should similarly provide Technical and Cost Proposals for the
alternate bid in a manner similar to the required contents of the base Proposal. Alternate
Proposals shall be evaluated per the requirements outlined in Part IV of the RFP below.
PART IV - EVALUATION PROCEDURE
4.1
EVALUATION COMMITTEE
The Executive Director of the Authority will appoint an evaluation committee (the
“Evaluation Committee”) to be composed of Authority and Member Jurisdiction staff and
other members, as necessary, including professional consultants. The Evaluation
Committee will evaluate the proposals received in accord with the criteria set forth in the
RFP and make a recommendation for award to the Executive Director. After receiving and
evaluating the recommendation of the Evaluation Committee, the Executive Director will
make a recommendation to the Authority’s Members regarding the award. The Authority’s
Members will take final action upon the recommendation.
4.2
DISCRETION IN DETERMINING DEVIATIONS AND COMPLIANCE
The Executive Director has the right and responsibility to determine which of the Proposers
have met the requirements of this RFP, to determine whether any deviation from the
requirements of this RFP is substantive in nature, and to reject proposals that are not
reasonably susceptible of being selected for award. The Executive Director may waive
minor irregularities in proposals, may allow a Proposer to correct minor irregularities, and
may negotiate with responsible Proposers in any manner deemed necessary to serve the
best interests of the Authority.
4.3
PROCUREMENT METHOD
The Authority will employ the method of competitive negotiation to select a Contractor.
The Authority reserves the right to make an award based on the initial proposals submitted,
without oral presentations or best and final offers. If the Executive Director determines
that multi-step negotiations are in the best interests of the Authority, the Executive Director
will advise Proposers whose proposals are determined to be reasonably susceptible of
award as to how such negotiations will be conducted. The Authority may establish a
competitive range of proposals and conduct negotiations only with those Proposers within
the competitive range, and may request best and final Offers. Proposers whose proposals
are not selected will be so notified in writing.
4.4
EVALUATION CRITERIA
The Authority will select the proposal that is deemed to be the most advantageous to the
Authority and Montgomery County. Technical qualifications and the nature of the project
proposed are as important in the evaluation process as price.
14
The selection committee will first evaluate all proposers for their ability to meet the
minimum qualifications identified in Section 2.4. The technical and cost proposals
considered to meet the minimum qualifications will be evaluated according to the
following evaluation criteria. Cost and technical criteria will be weighed approximately
equally:
A.
Total Cost of Services: The total cost of the services provided on the basis of the
Proposer's cost proposal
B.
Technical Qualifications: The proposed Company's experience including
operation and maintenance of transport and recyclable processing facilities for the
required material stream, including
a. Management
 Delivering very similar services at very similar facilities.
 Descriptions of contingencies in the event operations fail for any of the
service components, including but not limited to, loader failure, fire,
temporary loss of access to proposed transportation routes, failures of the
scales provided by the County.
 The nature of the proposed transfer and Recycling/Beneficial Reuse plans,
including ability of the proposed transfer operation to meet performance
standards.
b. Prior Experience
 Meeting or exceeding performance measures at very similar facilities.
 Performance history of the proposed recycling site(s). This includes
compliance and adherence to federal, state, and local laws and regulations
and clear evidence that the facility(s) are permitted to accept Montgomery
County, MD materials identified in this RFP.
c. Description of Processing Facility and Services proposed.
d. Finance
 Evidence of financial ability to implement the project.
 Ownership or effective control of the proposed recycling and disposal
site(s).
e. Staff
 Evidence of labor resources to implement the project.
 Résumés and qualifications of proposed key staff for this project.
f. Sub-Contractors
 List of Subcontractors and Subcontractor qualifications
15
PART V - ADA COMPLIANCE
5.1
ALTERNATIVE FORMS:
Alternative forms of this RFP will be provided upon request.
16
Attachment A
Service Agreement
SERVICE AGREEMENT
by and between
NORTHEAST MARYLAND WASTE DISPOSAL AUTHORITY
and
_____________________________________________________
TO PROVIDE
TRANSPORTATION AND RECYCLING OF ASH RESIDUE
FROM THE MONTGOMERY COUNTY RESOURCE
RECOVERY FACILITY
JANUARY, 2016
Table of Contents
ARTICLE I - DEFINITIONS AND RULES OF INTERPRETATION ......................................... 2
Section 1.1
Definitions. ............................................................................................................ 2
Section 1.2
Rules of Interpretation. .......................................................................................... 2
Section 1.3
Incorporation of Recitals. ...................................................................................... 2
ARTICLE II - OBLIGATIONS RELATING TO ACCEPTANCE OF ASH
RESIDUERESIDUE; OPERATING PROCEDURES; AUTHORITY'S OBLIGATIONS ........... 3
Section 2.1 Contractor's Responsibilities: Acceptance, Handling, Transportation, and
Recycling of Ash Residue. .......................................................................................................... 3
Section 2.2
Authority Responsibilities. .................................................................................... 4
Section 2.3 Contractor Responsibilities For Cost of Ash Residue Acceptance, Transport, and
Processing at the Processing Facility and Alternate Processing Facility. ................................... 5
Section 2.4
Ash Residue Transportation System. .................................................................... 6
Section 2.5
Contractor's Refusal of Deliveries. ....................................................................... 6
Section 2.6
Cooperation at the Resource Recovery Facility. ................................................... 7
Section 2.7
Ownership of Processing Facility and Alternate Processing Facility. .................. 7
Section 2.8
Receiving Hours and Storage Times for Ash Residue at the RRF. ...................... 8
Section 2.9
Scales and Weighing Records. .............................................................................. 8
Section 2.10 Title to Ash Residue Delivered to the Contractor. ................................................ 9
Section 2.12 Contract for Project Management; Performance Security. ................................. 10
Section 2.13 Repairs and Maintenance. ................................................................................... 10
Section 2.15 Clean-Up and Processing. ................................................................................... 11
Section 2.16 Regulatory Requirements. ................................................................................... 11
Section 2.18 Operational Requirements. .................................................................................. 12
Section 2.19 Reporting Requirements. ..................................................................................... 12
ARTICLE III- SERVICE FEE; DAMAGES; PAYMENTS; SHARING OF COST SAVINGS 12
Section 3.1
Service Fee, Damages, Payments, Cost Savings. ................................................ 12
Section 3.2
Monthly Billing. .................................................................................................. 13
Section 3.3
Late Payment. ...................................................................................................... 14
Section 3.4
Disputes as to Service Fee, Other Charges, and Adjustments. ........................... 14
Section 3.5
Inflation Adjustor. ............................................................................................... 14
Section 3.6
Books and Records, Audit and Reports. ............................................................. 14
Section 3.7
Accounting. ......................................................................................................... 15
ARTICLE IV - UNCONTROLLABLE CIRCUMSTANCES ..................................................... 15
Section 4.1
Effect of Uncontrollable Circumstances. ............................................................ 15
Section 4.2
Changes Necessitated by Uncontrollable Circumstances. .................................. 15
ARTICLE V - INSURANCE AND INDEMNIFICATION ......................................................... 16
Section 5.1
Indemnification. .................................................................................................. 16
Section 5.2
Insurance. ............................................................................................................ 18
ARTICLE VI- DEFAULT ............................................................................................................ 18
Section 6.1
Remedies for Default. ......................................................................................... 18
Section 6.2
Events of Default by the Contractor. ................................................................... 19
Section 6.3
Events of Default by the Authority. .................................................................... 20
Section 6.4
Mitigation of Damages ........................................................................................ 21
ARTICLE VII - TERMINATION ................................................................................................ 21
Section 7.1
Termination for Default. ..................................................................................... 21
Section 7.2
Termination for Certain Uncontrollable Circumstances. .................................... 21
Section 7.3
Termination for Convenience.............................................................................. 21
ARTICLE VIII- TERM; RENEWAL........................................................................................... 21
Section 8.1
Term. ................................................................................................................... 21
Section 8.2
Renewal. .............................................................................................................. 22
Section 8.3
Multi-Year Agreement Contingency. .................................................................. 22
ARTICLE IX - REPRESENTATIONS AND WARRANTIES ................................................... 22
Section 9.1
Representations and Warranties of the Authority. .............................................. 22
Section 9.2
Representations and Warranties of the Contractor. ............................................. 23
ARTICLE X - MISCELLANEOUS ............................................................................................. 24
Section 10.1 Authority Representative and Contractor Representatives. ................................ 24
Section 10.2 Assignment/Third Party Beneficiary. .................................................................. 24
Section 10.3 Notices. ................................................................................................................ 25
Section 10.4 Entire and Complete Agreement. ........................................................................ 25
Section 10.5 Binding Effect. .................................................................................................... 26
Section 10.6 Further Assurances and Amendments. ................................................................ 26
Section 10.8
Counterparts..................................................................................................... 26
Section 10.9
Amendment or Waiver. ................................................................................... 26
Section 10.10 Confidential Information. ................................................................................ 26
Section 10.11 Severability. ..................................................................................................... 27
Section 10.12 Reserved. .......................................................................................................... 27
Section 10.13 Effect of Authority Approvals. ........................................................................ 27
Section 10.14 Dispute Resolution. .......................................................................................... 27
Section 10.15 Limitation of Liability and Defenses. .............................................................. 27
Section 10.16 Minority-Owned Business Participation Requirements. .................................. 28
Section 10.17 Time of the Essence. ........................................................................................ 28
Section 10.18 Eminent Domain. ............................................................................................. 28
Section 10.19 Parent Company Guaranty. .............................................................................. 29
THIS SERVICE AGREEMENT (“Agreement”) is made by and between the Northeast Maryland
Waste Disposal Authority ("Authority") and ________________________ ("Contractor").
RECITALS
A.
The Authority is established by Title 3, Subtitle 9 of the Natural Resources Article of the
Maryland Code to assist its participating political subdivisions of Maryland and other
public entities in providing adequate solid waste processing facilities, including facilities
for the generation of steam, electricity or fuels and recovery of materials that are derived
from or are otherwise related to waste processing. Participating jurisdictions ("the
Members” or “Member Jurisdictions”) include Baltimore City and Anne Arundel,
Baltimore, Carroll, Frederick, Harford, Howard and Montgomery Counties. The Authority
acts as a coordinating agency and a financing vehicle for solid waste management projects.
B.
On <DATE>, the Authority issued a Request for Proposal (“RFP”) on behalf of
Montgomery County (the “County”) to provide on a long-term basis Ash Residue
transportation and Recycling or processing services for Ash Residue from the Montgomery
County Resource Recovery Facility (the “RRF”) in Dickerson, MD, which is owned by the
Authority. The RRF is operated under a long term contract with Covanta Montgomery, Inc.
(“Covanta”).
C.
The Contractor responded to and was selected as a result of the above referenced RFP. The
Contractor represents that it is qualified to accept, process, transport, and dispose of solid
waste and perform all related components of the Service under this Agreement.
D.
The County has adopted an integrated solid waste management system pursuant to its
Comprehensive Solid Waste Management Plan. This system provides for solid waste
management in the following hierarchy according to policy priority: reduction of solid
waste produced; recycling and reuse of solid waste generated; combustion of solid waste
with energy recovery; and finally, landfilling of material remaining after application of
these other methods of solid waste management. To implement this integrated system, the
County has solid waste reduction, recycling and reuse programs. The County also has
recycling facilities and anticipates developing or using other recycling facilities in the
future. It is the County’s policy to encourage waste reduction and the separation and
recycling of recyclable materials to the maximum extent practical. The RRF is a 1,800 ton
per day waste-to-energy facility.
E.
The Authority desires to enter into this Agreement with the Contractor for the Contractor
to transport and Recycle or Beneficially Reuse Ash Residue to the maximum extent
feasible and landfill materials that cannot be reduced or recycled. The Contractor desires
to provide the transportation and Processing services necessary to accept, transport, and
Recycle or Beneficially Reuse all Ash Residue to the maximum extent feasible.
F.
Waste is delivered to the Transfer Station in vehicles owned or operated by employees of,
or under contract to, the County, private citizens and commercial hauling companies from
within Montgomery County. Under standard operating conditions, processible Waste is
transported by rail to the RRF and reduced to Ash Residue prior to being delivered to the
Contractor. Recyclable materials are delivered to the Montgomery County Materials
Recovery Facility located at the Transfer Station Site or to another appropriate recycling
or processing facility. Recyclable ferrous metals not previously removed from the waste
stream are separated from ash at the RRF and sold to scrap dealers.
NOW, THEREFORE, in consideration of the mutual promises and covenants of each to the other
contained herein and other good and valuable consideration, the receipt and sufficiency of which
are hereby acknowledged, the parties to this Agreement agree as follows:
ARTICLE I - DEFINITIONS AND RULES OF INTERPRETATION
Section 1.1
Definitions.
Capitalized terms used in this Agreement have the meanings set forth herein and in Schedule I.
Section 1.2
Rules of Interpretation.
For all purposes of this Agreement, except as otherwise expressly provided or unless the context
otherwise requires:
(a)
All reference in this Agreement to designated "Articles," "Sections" and other subdivisions
are to the designated Articles, Sections and other subdivisions of this Agreement as
originally executed.
(b)
Where the context requires, the plural includes the singular and the singular includes the
plural.
(c)
Words of the masculine gender shall be deemed and construed to include correlative words
of the feminine and neuter genders.
(d)
The table of contents and the headings or captions used in this Agreement are for
convenience of reference only and do not define, limit or describe any of the provisions,
scope or intent of this Agreement.
(e)
References to agreements or contracts include all amendments, modifications and
supplements thereto.
Section 1.3
Incorporation of Recitals.
The Recitals are incorporated into this Agreement.
2A
ARTICLE II - OBLIGATIONS RELATING TO ACCEPTANCE OF ASH RESIDUE;
OPERATING PROCEDURES; AUTHORITY'S OBLIGATIONS
Section 2.1
Contractor's Responsibilities: Acceptance, Handling, Transportation, and
Recycling of Ash Residue.
(a)
Beginning on the Commencement Date and continuing throughout the term of this
Agreement, the Contractor must accept at the RRF, transport and Recycle or Beneficially
Reuse (to the maximum extent feasible) all Ash Residue delivered by or on behalf of the
Authority in accordance with this Agreement and Applicable Law.
The Contractor must provide the Service described in Schedule II and must operate and/or
manage all equipment, materials, facilities, personnel, vehicles, sites, and all other things
necessary and beneficial in accordance with good engineering practices and good operating
practices to properly provide the Service in accordance with this Agreement. The
Contractor must not materially interfere with ongoing activities at the RRF and must at all
times coordinate its activities with the activities of the Authority, the County, Covanta and
other contractors, subcontractors or entities present at the RRF. The Authority will provide
the Contractor with the names of all contractors, subcontractors or entities present at the
RRF with whom the Contractor is required to coordinate for the proper and efficient
operation of activities at these Facilities.
The Contractor is required to meet with the Authority, the County, Covanta, and other
contractors, subcontractors, or entities upon request of the Authority Representative.
(b)
Ash Residue must be processed for Recycling or Beneficial Reuse in a manner that is
recognized as a legitimate recycling or beneficial reuse method by the applicable waste
management regulatory agencies in the state in which the ash is processed. Any portion
of the Ash Residue not Recycled or Beneficially Reused must be managed in accordance
with all applicable laws and regulations and as well as the specific permit requirements of
the facility.
(c)
To the maximum extent possible, the Contractor shall process all of the Ash Residue that
it accepts and Recycle or Beneficially Reuse the Ash Residue in accordance with the rules
and regulations of the state in which the Ash Residue is Processed.
(d)
The Contractor must carry out its obligations in accordance with its approved Operations
Plan, a copy of which is attached hereto as Schedule III. Material changes to the approved
Operations Plan may not be made without the Authority's consent. Material changes
include, but are not limited to, changes which affect operations at the Existing System or
which affect any term or condition of this Agreement. The Contractor must at a minimum,
remove Ash Residue from the RRF in accordance with the following schedule:
(i)
Ash Residue delivered to the Contractor must be removed from the RRF on a
regular basis. No Ash Residue shall remain at the RRF for more than 7 days.
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(ii)
(e)
The Contractor must maintain a sufficient number of extra Containers at the RRF
to accommodate a minimum of two days of maximum Ash Residue generation
above and beyond those used for regular transporting of Ash Residue. These
Containers will be used if there is substantial problem with the transportation
system or critical transfer and receiving locations. An analysis of the number of
extra Containers needed shall be performed at the Authority’s request.
In the event that the Contractor is unable to transport the Ash Residue by rail due to a
failure to perform by the railroad(s) transporting Ash Residue pursuant to this Agreement,
the Contractor must develop and implement a workable alternative transportation plan
within 72 hours to manage and transport Ash Residue delivered under this Agreement. The
excess handling and transportation costs resulting from a Major Outage of the rail system
servicing the RRF shall be a pass-through to the Authority, if caused by an Uncontrollable
Circumstance. The Contractor must not charge the Authority an amount that exceeds the
industry standard based upon a minimum of three requested competitive bids for the
emergency supplementary transportation necessitated by the Major Outage of the rail
system at the RRF. The excess transportation costs resulting from a failure to perform by
the railroad(s) for any reason, except for an Uncontrollable Circumstance, must be paid by
the Contractor and are not a pass-through to the Authority.
Section 2.2
Authority Responsibilities.
2.2.1 Operation and Maintenance of the RRF
Except for the Contractor's responsibilities under this Agreement, the Authority will provide for
the operation and maintenance of the RRF. The Authority will cooperate with the Contractor in
the Contractor's reasonable performance of its obligations under this Agreement. Authority
cooperation does not include the assumption by the Authority of any of Contractor's
responsibilities under this Agreement or of any additional financial obligation on the part of the
Authority.
2.2.2 Delivery of Ash Residue
From and after the Commencement Date, the Authority will deliver or cause to be delivered to the
Contractor for acceptance, transportation, and recycling, substantially all of the Ash Residue
generated at the RRF. While there is no guarantee that any minimum amount of ash will be
delivered, estimated ash quantities are in the range of 150,000 to 200,000 tons per year. The
Authority reserves the right to withhold small amounts of Ash Residue as necessary for operational
purposes. The Authority’s obligation to deliver Ash Residue does not include residue from solid
waste that is generated in the County, but for whatever reason is not delivered to the Transfer
Station and sent to the RRF for processing.
2.2.3 Loading Ash Residue onto Transportation Vehicles
The Contractor must cause the loading of Ash Residue into Containers, provided by the Contractor
at its cost, at the RRF, in accordance with the Service and the Operations Plan, Schedules II and
4A
III, respectively. The Contractor must cause its operations, Containers and Container handling
requirements to (a) be compatible with existing operations and equipment at the RRF and (b) meet
performance standards at least comparable to the standards for existing operations and equipment
at the RRF. Any increase in costs to the County, the Authority, or Covanta necessary for the
Contractor’s operations, must be paid by the Contractor. Additional equipment, personnel, and
other resources necessary for the operation of the Contractor’s Transportation System must be
provided by the Contractor at its cost. The Contractor must manage Ash Residue using types of
containers and equipment, reasonable and appropriate for this material. This means that the Ash
Residue must be properly contained and any liquid from the Ash Residue must be properly
contained. The Contractor must, in a timely manner, pay for the repair of any damage done or
caused by Contractor, its subcontractors, agents, employees or invitees to equipment,
improvements, or other material at the RRF.
2.2.4 Operation of Scales
The Authority will provide for the operation and maintenance of scales at the RRF to weigh Ash
Residue delivered to the Contractor at that location. Empty Containers will be weighed as
necessary at the scales at the RRF, the Transfer Station, or other Authority approved scale
locations, to verify tare weights. The scales at the RRF will be the basis for payment of the Service
Fee and billing as described in Section 3.2.
The Authority shall, at its expense, obtain approval of, inspect and test the scales at its scale
facilities at the RRF as required by Applicable Law, but no less frequently than once per year.
2.2.5 Contractor’s Vehicles
The Contractor shall provide to the Authority a list of all vehicles, containers, railcars, etc. that
will be used to transport Ash Residue from the RRF to the Processing Facility. Tare weights and
other identifiable information as requested by the Authority shall be provided upon request. Any
additions or subtractions to these items shall be forwarded to the Authority in a timely manner.
2.2.6 Payment of Service Fee
The Authority must pay a service fee in accordance with the provisions of Section 3.1 and Schedule
IV.
Section 2.3
Contractor Responsibilities For Cost of Ash Residue Acceptance, Transport,
and Processing at the Processing Facility and Alternate Processing Facility.
The Contractor shall pay all costs for accepting Ash Residue at the RRF and for handling,
transporting, processing and Recycling or Beneficial Reuse of Ash Residue.
2.3.1 Processing Facility
The Contractor must Recycle Ash Residue delivered to it by, or on behalf of, the Authority at the
Processing Facility as defined in Schedule I, Definitions and at no other facilities or locations.
5A
After the Ash Residue is Recycled or Beneficially Reused to the maximum extent possible, the
Contractor must dispose of any remaining Ash Residue in the manner described in Schedule III.
2.3.2 Alternate Processing Facility
With the Authority's approval, the Contractor may designate an Alternate Processing Facility. If
the Contractor designates an Alternate Processing Facility, all of the provisions of this Agreement
shall apply to the Alternate Processing Facility as if it were the Processing Facility.
Section 2.4
Ash Residue Transportation System.
The Contractor must transport Ash Residue delivered to it by, or on behalf of the Authority, to the
Processing Facility, or, as appropriate pursuant to this Agreement, to the Alternate Processing
Facility via rail transportation. The Contractor must not commingle Ash Residue from any other
source with Ash Residue it is transporting on behalf of the Authority. The Contractor must provide
sufficient amounts of equipment, including back-up equipment, consistent with the Existing
System, to accept and transport all Ash Residue received in accordance with the provisions of the
RRF Refuse Disposal Permit, RRF operational procedures and Section 2.1(d) of this Agreement.
In the event the Contractor's rail transportation system for Ash Residue is unavailable due to an
Uncontrollable Circumstance, the Contractor must achieve the performance requirements of the
Agreement using other transportation resources.
2.4.1
Loading Residue onto Vehicles
The Contractor must accept all Ash Residue delivered to it by, or on behalf of, the Authority at the
RRF. The Contractor must supervise the satisfactory loading of Ash Residue into Containers and
onto the Contractor's rail transportation vehicles at the RRF. The Contractor must at all times
ensure that the vehicles are properly loaded, secured, and covered, that the Containers are water
tight and that vehicles are properly staged and depart in a timely manner to enable the efficient
performance of the Service and reduce potential impacts to other Covanta operations. The
Containers must be designed and constructed for the express purpose of receiving and transporting
Ash Residue. The rail cars must be designed and constructed for the express purpose of
transporting the Containers.
Section 2.5
(a)
Contractor's Refusal of Deliveries.
Extent of Refusal Rights
The Contractor may reject deliveries of Unacceptable Waste at the time the Contractor’s
Container is being loaded with Ash Residue at the RRF. If the Unacceptable Waste is not
identified until after the Contractor’s Container has been loaded, the Contractor must make
arrangements at the Contractor’s expense for the proper processing of the Unacceptable
Waste at an appropriately permitted facility.
(b)
Inspection of Delivered Material
The Contractor is responsible for its own screening of Ash Residue before it is loaded into
6A
its Containers. The Authority shall reasonably cooperate with the Contractor with regard
to the screening of the Ash Residue. Neither the inclusion of programs or practices in the
Ash Residue screening programs by Covanta nor the review or comment by the Authority
upon any Contractor proposal with regard to Ash Residue screening relieves the Contractor
of any of its obligations hereunder or imposes any liability upon the Authority.
The Contractor must inspect all Ash Residue to be loaded into its Containers under this
Agreement at the RRF. The Contractor will give immediate notice to the Authority if it
believes Unacceptable Waste has been commingled with Ash Residue. The Contractor is
not obligated to Process Unacceptable Waste before it leaves the RRF.
Section 2.6
Cooperation at the Resource Recovery Facility.
The RRF is equipped with a modern rail yard, a container management system, tipping floor, and
services to accommodate rail operations and trucking if necessary.
In addition to the requirements of section 2.1 (a) and Schedule VI of this Agreement, the Contractor
must adjust its activities as necessary to prevent its interference with operations, maintenance
and/or construction at the RRF. The Contractor must comply with applicable permit and safety
requirements set forth at the RRF, including but not limited to requirements to prevent spills and
leaks during loading or transport of Residue. At the Authority’s request, the Contractor must
participate in the planning of any future modifications to the RRF, if necessary.
Section 2.7
Ownership of Processing Facility and Alternate Processing Facility.
The Contractor represents and warrants that it:
(a)
owns in fee simple, possesses, controls, and manages the Processing Facility, or has longterm contractual relationships with recycling and disposal facilities sufficient to meet the
requirements of this Agreement.
(b)
has all permits and approvals necessary for it to receive Ash Residue at the Processing
Facility pursuant to and for the duration of this Agreement and to ensure ongoing
obligations regarding operation and maintenance of the Processing Facility beyond the
term of the Agreement.
(c)
if utilizing a landfill, the Processing Facility and Alternate Processing Facility are not U.S.
EPA Subtitle C landfills, and are duly permitted as landfills that meet the requirements of
U.S. EPA Subtitle D standards and meet other requirements of Applicable Law, or are
federal, State and locally approved Recycling or Beneficial Use facilities permitted to
accept Residue.
(d)
will not at any time accept Unacceptable Waste, except in a manner that complies with its
permit requirements, at the Processing Facility.
(e)
the Processing Facility is not now and will not be operated in violation of Applicable Law,
7A
including any applicable host community agreement.
At least 180 days prior to any change or termination of any agreement, lease or transfer of
ownership, possession or control of the Processing Facility, the Contractor must notify the
Authority in writing of the proposed changes. The notification must include: (i) identification of
the party to whom Contractor proposes to lease, transfer, assign, or otherwise move possession or
control of the Processing Facility; (ii) a detailed description of the party's experience operating
similar facilities; and (iii) the proposed changes affecting any agreement relating to an Alternate
Processing Facility if specified. The Contractor must provide the Authority with a certified
statement from the party identified in subsection(i) above that meets and includes the following
financial criteria (in 2015 dollars) and other information specified below:
1.
2.
3.
4.
5.
6.
7.
Net worth for each of the last three fiscal years of $7,000,000 or more.
The ratio of net cash flow from continuing operations to annual debt (net interest
and principal) for two of the last three fiscal years equal to at least 1:1;
The "current ratio" for two of the last three fiscal years equal to at least 1:1;
Cash and/or cash equivalent of at least $1,000,000 on the date of the most recent
audited financial statement;
No material adverse change in financial position shall have occurred since the end
of the most recent fiscal year;
The party has or can obtain insurance in amounts sufficient to satisfy the
requirements of this Agreement; and
Information on citations and/or notices of violation of environmental laws received
within the last five years at other waste or residue processing facilities owned by or
under the control of the party identified in sub provision (i) or an affiliate of such
party.
Failure of the new ownership to meet these requirements to the satisfaction of the Authority will
be an Event of Default by the Contractor.
Section 2.8
Receiving Hours and Storage Times for Ash Residue at the RRF.
The Contractor must accomplish all tasks associated with the acceptance, loading, temporary
storage, and transport of Ash Residue at the RRF in accordance with applicable restrictions on
hours specified in the permits for these facilities. Ash Residue will not be delivered by the
Authority on the following holidays, unless there is a Major Outage or other emergency in which
case the Contractor will be notified by the Authority as soon as practical. The Authority shall
designate the dates on which the holidays are to be observed.
New Year’s Day
Memorial Day
Independence Day
Section 2.9
Labor Day
Thanksgiving Day
Christmas Day
Scales and Weighing Records.
The Authority scales at the RRF are to be used for determining quantities of Ash Residue for
8A
Service Fee payments. Weights measured at the Authority scales for loaded Containers minus the
tare weights shall be used as the basis for determining the amount of Ash Residue delivered to the
Contractor. Containers shall be weighed empty or scales shall be zeroed out each time before
containers are filled. If the permanent scales at the RRF are not available, the Authority may
require the Contractor, on a temporary basis, to use scales at the Processing Facility. If scales at
the Processing Facility are used, weights measured at the scales for loaded vehicles and Containers
minus the tare weights shall be used as the basis for determining the amount of Ash Residue
delivered to the Processing Facility. In the event no scales and equipment meeting the
requirements of Applicable Law are operational at either the RRF or the Processing Facility, the
Authority shall estimate the quantity of Ash Residue delivered on the basis of truck or container
volumes and historical information about the Ash Residue. These estimates shall take the place
of actual weighing records during a complete scale outage at both ends of the Transportation
System. In order to participate in estimating quantities of Ash Residue during a scale outage, the
Contractor may have an employee or agent present at the scale at the RRF before Containers are
loaded onto railcars.
The Contractor shall maintain daily records of: (a) the total tonnage of Ash Residue delivered to
the Processing Facility; and (b) the tonnage of Ash Residue accepted by the Contractor under this
Agreement. The Contractor shall submit monthly reports as to items (a) and (b) using a format
acceptable to the Authority. The Contractor must allow the Authority access to its books and
records on a reasonable basis concerning any data or information collected under this Agreement.
The Contractor shall cooperate with the Authority to provide this information electronically or on
disk in a format compatible with Authority or Authority software and computer equipment. The
Contractor must provide a formal summary report of all such information for each month, within
ten days after the end of the month. The Contractor shall keep copies of all weight tickets for at
least three years. Weight tickets shall be available for inspection by the Authority upon request.
Section 2.10
Title to Ash Residue Delivered to the Contractor.
Title to and responsibility for Ash Residue delivered to the Contractor passes to the Contractor
upon loading the material into the Containers. All Ash Residue that is loaded into the Containers
belongs to the Contractor, and the Contractor is responsible for the proper Processing and related
costs of such material in accordance with the terms of this Agreement. Notwithstanding anything
to the contrary in this paragraph, prior to leaving the RRF, the Contractor may remove any
Unacceptable Waste inadvertently placed in the Container.
Section 2.11
No Ash Residue Guarantee.
Subject to Section 2.2.2, the Authority does not guarantee delivery of a specific amount of Ash
Residue to the Contractor. The Authority and the Contractor understand that regional market
changes in solid waste services, technology, and developments and programs in waste reduction
and recycling and reuse programs, as well as adjustments in tip fees of nearby jurisdictions, may
affect the amount of Ash Residue produced at the RRF and, consequently, provided to the
Contractor for processing.
9A
Section 2.12
Contract for Project Management; Performance Security.
(a)
The parties acknowledge that the dependable operation and maintenance of the Processing
Facility and other equipment and facilities providing the Service is in the interests of the
parties to this Agreement. The Contractor shall not enter into or maintain any contract or
subcontract with any Person other than an affiliate of the Contractor for the operation,
management, or control of the Processing Facility without the prior written consent of the
Authority. The Authority will not unreasonably withhold or delay its consent to any such
contract or subcontract.
(b)
No contract or subcontract between the Contractor and any other person will affect the
Contractor’s obligation under this Agreement. The Contractor has full responsibility for
execution of this Agreement.
(c)
Concurrently with the execution of this Agreement, the Contractor shall deliver to the
Authority a Performance Bond or Letter of Credit from a surety, insurance company, or
financial institution acceptable to the Authority, covering the performance obligations of
the Contractor under the Agreement. The Performance Bond or Letter of Credit shall be
in an amount equal to 100,000 Tons times the per-Ton price for Ash Residue acceptance,
handling, loading, transportation and Processing stated in Schedule IV of this Agreement.
The Authority and the County shall be named as beneficiaries of the Performance Bond or
Letter of Credit. The Performance Bond shall be in the form set forth in Schedule VIII of
this Agreement. If a Letter of Credit is used in lieu of a Performance Bond, the Letter of
Credit shall be irrevocable and in form and content reasonably satisfactory to the Authority.
The Contractor shall maintain the Performance Bond or Letter of Credit until all obligations
have been performed by the Contractor under this Agreement and the Performance Bond
or Letter of Credit has been expressly released by the Authority. The Authority shall
release the Performance Bond or Letter of Credit upon Contractor's completion of
performance of its obligations under this Agreement or earlier termination of this
Agreement, provided that the Contractor is not in default of any obligations under this
Agreement and only to the extent the Performance Bond or Letter of Credit is not being
drawn or has not been drawn upon by the Authority.
Section 2.13
Repairs and Maintenance.
The Contractor, at its own expense, shall maintain the Processing Facility in good condition at all
times, and make all repairs and replacements required for the Contractor to perform its obligations
under this Agreement. The Contractor shall maintain the safety of the Processing Facility at a
level consistent with Applicable Law and best management practices.
Section 2.14
Access by the Authority or Its Designee.
The Authority and its respective agents, licensees and invitees may visit or inspect, without notice,
the Processing Facility at any reasonable time during the term of this Agreement. The Authority
and its respective agents, licensees and invitees shall conduct visits to the Facilities in a manner
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that does not unreasonably interfere with the Contractor's operations. To the extent practical, the
Authority shall provide the names of all invitees to the Contractor in advance. The Contractor may
require any person on a Processing Facility site to comply with its reasonable rules and regulations
and to sign a statement agreeing (i) to assume the risk of the visit but not the risk of injury due to
the intentional or negligent acts or omissions of the Contractor or any of its subcontractors, agents,
or employees and (ii) not to disclose or use any Confidential Information of the Contractor other
than for the purpose for which it was furnished or, in the case of Authority employees and agents,
except in accordance with Section 10.10.
Section 2.15
Clean-Up and Processing.
The Contractor shall keep the Processing Facility, or cause the Processing Facility to be kept, free
from accumulation of Residue (except in approved containers and locations) and shall maintain
and operate the Processing Facility, or cause the Processing Facility to be maintained and operated,
so as to prevent the Processing Facility from violating any permit or license conditions or
becoming unsightly or a nuisance under Applicable Law.
Section 2.16
Regulatory Requirements.
The Contractor shall perform its obligations under this Agreement and operate the Processing
Facility, or cause the Processing Facility to be operated, in accordance with all requirements of
Applicable Law and host community agreements. Applicable rules and regulations include, but
are not limited to, those listed in Schedule IX. The Contractor shall obtain and maintain, or cause
to be obtained and maintained, all permits and licenses required by Applicable Law to perform its
obligations hereunder. The Contractor will not breach its obligations under this Section if (i) the
Contractor is contesting the Applicable Law in good faith by appropriate proceedings conducted
with due diligence and the Applicable Law allows continued operation of the affected portion
of the Processing Facility pending the resolution of the contest or (ii) the Contractor is diligently
seeking to comply with such Applicable Law or to obtain or maintain any such permit or license
and Applicable Law allows continued use and operation of the affected portion of the Facilities.
The Contractor must (a) provide, or cause to be provided, to the Authority, upon the Authority’s
request, copies of reports submitted to public agencies as required by existing permits for the
Processing Facility and (b) report any notices of violations it receives from any public agency
pertaining to any portion of the Processing Facility pertinent to the performance of the Service.
Section 2.17
Other Legal Requirements.
The Processing Facility and any Alternate Processing Facility must have all applicable permits and
must comply with any applicable solid waste management plan for the jurisdiction where the
facility is located and must be authorized, both in the plan and by any host community agreement,
to receive Ash Residue in accordance with this Agreement from outside of the host jurisdiction.
At any time during the duration of this Agreement if any permit for construction or operation of
the Processing Facility, or for any portion of the Facilities necessary for the Contractor to provide
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the Service, has less than 12 months remaining on the permit, the Contractor must provide
evidence (a) of submission of a completed renewal application to the applicable regulatory
authority, and (b) that Applicable Law allows for the continued operation of the affected portion
of the Facilities while the application is under review by the designated review agencies.
Section 2.18
Operational Requirements.
The Contractor must observe all operational rules and safety requirements established by the
Authority and Covanta at the RRF, including but not limited to those which are attached hereto as
Schedule VI. These rules and regulations may be changed from time to time to address bona fide
safety concerns.
Section 2.19
Reporting Requirements.
The Contractor must provide reports to the Authority relevant to its performance under this
Agreement as discussed in Schedule V in a format acceptable to the Authority. The Contractor
must prepare and maintain, or cause to be prepared and maintained, accurate and complete books
and records of all transactions related to the Facilities.
ARTICLE III - SERVICE FEE; DAMAGES; PAYMENTS; SHARING OF COST
SAVINGS
Section 3.1
Service Fee, Damages, Payments, Cost Savings.
(a)
From and after the Commencement Date, the Contractor shall be paid a fixed Service Fee
by the Authority as shown in Schedule IV for each Ton of Ash Residue accepted,
transported and Recycled or Beneficially Reused, or disposed of in accordance with this
Agreement. The Contractor shall also be paid pass-through amounts agreed to by the
Authority, including, but not limited to pass-through amounts for any increases in cost to
the Contractor as a result of the Authority's designation of a location other than the RRF
for the delivery of Ash Residue to the Contractor.
(b)
The Authority may deduct from any monthly payment of the Service Fee and pass- through
amounts any credits or offsets to which the Authority is entitled and any amount of the
Service Fee that has been disputed in accordance with provisions of this Agreement. For
any billing period, the Contractor must pay the Authority and the Authority may retain or
set-off from any amounts due the Contractor amounts the Contractor owes the Authority
under this Agreement and Authority Damages incurred as a result of Contractor's failure
to comply wholly or in part with any terms of this Agreement. In the event the Contractor
disputes the amount of a set-off claimed by the Authority for amounts the Authority claims
are due it by the Contractor, the Authority agrees that it will set aside such disputed off-set
amount into a restricted subaccount held by the Authority. Subject to the terms of this
Agreement, the subaccount will only be released by the Authority upon the consent of the
Contractor or the final resolution of allocation of the disputed off-set amount. Interest on
the subaccount shall accrue to the successful party. The provisions regarding a subaccount
apply only to a bona fide disputed set-off.
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(c)
Under certain circumstances mutually agreeable to both parties, and on a case by case basis,
there may be cost savings or revenues to be shared between the parties. If the Contractor
and the Authority agree on a less expensive Beneficial Reuse or Recycling alternative for
the Ash Residue, the parties shall share the net savings or revenues equally. The Contractor
must credit to the Authority the Authority's share of any cost savings effected pursuant to
this Agreement.
Section 3.2
(a)
(b)
Monthly Billing.
The Contractor shall provide the Authority with an original statement or invoice for all
amounts payable hereunder by the ninth day of the calendar month immediately succeeding
the calendar month for which such amounts are payable. The statement or invoice shall
be in a form acceptable to the Authority. Amounts invoiced are due 30 days after receipt
of the invoice by the Authority. Each invoice shall set forth the amount of the Service Fee
and other charges payable to the Contractor for the applicable period, together with
supporting documentation including scale records, sufficient to allow the Authority to
verify the Contractor's calculations of the Service Fee and other charges for such period.
The amounts payable monthly in accordance with Schedule IV are calculated as follows:
(i)
the amount due for Service Fee payments shall be the product of the per Ton price
multiplied by the number of Tons of Ash Residue accepted, transported, and
processed at the Processing Facility; plus
(ii)
adjustments pursuant to section 3.1(b) and section 3.1(c).
All Contractor invoices and statements shall be delivered by hand or mailed first class,
postage prepaid and emailed, to:
Northeast Maryland Waste Disposal Authority
Tower II, Suite 402
100 S. Charles Street
Baltimore, Maryland 21201
authority@nmwda.org
With a copy to:
Montgomery County DEP
Shady Grove Processing Facility and Transfer Station
Division of Solid Waste Services
16101 Frederick Road
Derwood, Maryland 20855
Ray.wimbrough@montgomerycountymd.gov
(c)
The Authority shall have no obligation to make payment for any amount of Ash Residue
delivered to the Processing Facility other than Ash Residue loaded into vehicles or
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Containers at the RRF, unless exceptions are explicitly stated in amendments to this
Agreement.
(d)
The Contractor may not submit an invoice for any service or obligation under this
Agreement more than 12 months after the service was provided or the obligation incurred.
The Authority will not be obligated to pay any invoice submitted more than 12 months
after the date of service or after the obligation was incurred. The Authority will make a
good faith effort to invoice any setoff, credit or disputed amount under this Agreement
within 30 days of resolution.
Section 3.3
Late Payment.
Any amounts payable under this Agreement by the Authority or the Contractor that are not paid
when due in accordance with this Agreement shall, unless otherwise specifically provided, shall
bear interest at the amount equal to the Bank of America N.A. prime interest rate of interest, as
adjusted from time to time, plus 2%.
Section 3.4
Disputes as to Service Fee, Other Charges, and Adjustments.
If the Authority or the Contractor disputes any amount owed as the Service Fee or other charges
and adjustments pursuant to Sections 3.1 or 3.2, the disputed amount is not effective until
resolution of the dispute. The undisputed portion of the statement or invoice shall be paid in
accordance with the payment schedule in this Agreement. Within 30 days after the resolution of
a disagreement about a Service Fee, other charge or adjustment, the party whose position does not
prevail shall reimburse the other party for the aggregate amount of any underpayment or
overpayment.
Section 3.5
Inflation Adjustor.
The Service Fee will be adjusted for inflation in accordance with the formula set forth in Schedule
IV of this Service Agreement.
Section 3.6
(a)
Books and Records, Audit and Reports.
The Contractor and any subcontractor it uses in the performance of the Service shall
maintain all books, records, and accounts necessary to record all matters affecting this
Agreement, including, but not limited to, the Service Fee, other charges and adjustments,
applicable damages or other amounts payable by or to the Authority or the Contractor under
this Agreement or other agreements, including but not limited to, policies for Required
Insurance, policy amendments, and all other related documents. The Contractor shall
maintain all such books, records and accounts in accordance with Generally Accepted
Accounting Principles. The Contractor's, and its subcontractors' books, records and
accounts shall accurately, fairly and in reasonable detail reflect all the Contractor's
dealings and transactions under this Agreement and other agreements and shall contain
sufficient data to enable those dealings and transactions to be audited in accordance with
Generally Accepted Auditing Standards. The Contractor and its subcontractors shall
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maintain all such books, records and accounts available for inspection and photocopying
by the Authority within a reasonable period of time upon written request by the Authority.
(b)
The Contractor shall provide the Authority with the reports and information set forth in
Schedule V at the times required by the Agreement. The report format can be modified
with the approval of the Authority.
(c)
The Contractor and its subcontractors must prepare and maintain separate, accurate and
complete books and records of all transactions related to the Processing Facility and this
Agreement.
(d)
The Contractor certifies that all information the Contractor has provided, or will provide
to the Authority, is true and correct and can be relied upon by the Authority in awarding,
modifying, making payments, or taking other action with respect to this Agreement.
Section 3.7
Accounting.
Beginning July 1, 2018, within 45 days following the end of each Fiscal Year, the Contractor shall
provide an accounting to the Authority of all payments made by the Authority for the Fiscal Year
and all amounts payable by the Authority for such Fiscal Year.
ARTICLE IV - UNCONTROLLABLE CIRCUMSTANCES
Section 4.1
Effect of Uncontrollable Circumstances.
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 due to the occurrence of an Uncontrollable
Circumstance and any such failure or delay shall not constitute an Event of Default under this
Agreement, provided that proper notice of such Uncontrollable Circumstance is given by the party
claiming the Uncontrollable Circumstance and such party is exercising due diligence to mitigate
the effect of the Uncontrollable Circumstance.
If the Processing Facility is unavailable for any reason other than an Uncontrollable Circumstance
for a period of 30 days, the Contractor will be in default of this Agreement. If the Processing
Facility is unavailable due to an Uncontrollable Circumstance and the Alternate Processing
Facility is not available for any reason other than an Uncontrollable Circumstance for a period of
30 days, the Contractor will be in default of this Agreement. The lack of capacity or other refusal
to receive Ash Residue under this Agreement at the Alternate Processing Facility is not an
Uncontrollable Circumstance.
Section 4.2
(a)
Changes Necessitated by Uncontrollable Circumstances.
Promptly upon knowledge of an Uncontrollable Circumstance, the party claiming the
Uncontrollable Circumstance shall give the other party oral notice of the Uncontrollable
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Circumstance and shall, within fifteen (15) days thereafter, provide the other party with a
written statement describing (i) the Uncontrollable Circumstance and its cause (to the
extent known), (ii) a description of the conditions preventing performance of the
obligations of the party claiming the Uncontrollable Circumstance, (iii) the date on which
the Uncontrollable Circumstance commenced, (iv) the estimated duration and impact of
the Uncontrollable Circumstance, and (v) a description of the efforts of the party claiming
the Uncontrollable Circumstance to mitigate the effect of the Uncontrollable
Circumstance. The party claiming the Uncontrollable Circumstance must use best efforts
to eliminate the cause of the Uncontrollable Circumstance and resume performance of its
obligations. The party claiming the Uncontrollable Circumstance must give prompt notice
to the other party of the termination of the Uncontrollable Circumstance.
(b)
If a Processing Facility is unavailable due to an Uncontrollable Circumstance, the
Contractor must diligently investigate and present alternatives to the Authority which will
provide for the Service under this Agreement.
The Authority may, in its discretion,
approve any alternative relative to the initially identified Facilities and may elect to
implement the Contractor's proposed alternative or pursue other options available to the
Authority.
In no case will the Service Fee or other charges increase without the Authority's consent
due to an Uncontrollable Circumstance called by the Contractor except for pass-throughs
expressly agreed upon pursuant to this Agreement.
(c)
The Contractor shall answer any inquiries of the Authority regarding the conditions caused
by the Uncontrollable Circumstance and shall provide the Authority with such information
as the Authority reasonably requests. Upon the request of the Authority, a consulting
engineer, at the Authority’s expense, may review the Contractor’s estimate of the time
schedule for repairing a Facility or the alleged cause of the Uncontrollable Circumstance.
ARTICLE V - INSURANCE AND INDEMNIFICATION
Section 5.1
5.1.1
Indemnification.
Injury or Death or Property Loss or Damage
The Contractor must protect, indemnify, and hold the Authority and the County, along with their
officials, employees, contractors and agents (the "Indemnified Party") harmless from and against
all liabilities, actions, damages, claims, demands, judgments, losses, costs, expenses, liens,
encumbrances, suits or actions and reasonable attorneys' fees, and the reasonable cost of the
defense of the Indemnified Party in any suit, including appeals, for personal injury to, or death of,
any person or persons, or loss or damage to property caused by the willfu1 misconduct or negligent
acts, errors or omissions of the Contractor, its officials, agents, contractors or employees, in
connection with or as a result of this Agreement or the performance by the Contractor of its
obligations hereunder, except to the extent that the injury, death, loss or damage was the result of
the willful misconduct or negligent act, error or omission of such Indemnified Party. The
Indemnified Party must promptly notify the Contractor of the assertion of any claim against which
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it is indemnified hereunder and must, to the extent permitted by Applicable Law, give the
Contractor the opportunity to defend such claim, and must not settle such claim without the
approval of the Contractor which approval must not be unreasonably withheld or delayed.
In case any action is brought against the Indemnified Party, in respect of which payment or
satisfaction may be sought against the Contractor pursuant to this section, the Indemnified Party
must promptly notify the Contractor in writing, and the Contractor shall be entitled to participate,
at its own expense, in the defense, or if it so elects within a reasonable time after receipt of such
notice, with respect to any defense not being provided by or on behalf of the Authority, to assume
the defense of any suit brought to enforce any such claim, but if it so elects to assume the defense,
such defense shall be conducted by counsel chosen by it and reasonably approved by the
Indemnified Party. In the event that the Contractor elects to assume the defense of any such suit
and retains such counsel, the Indemnified Party must cooperate in such defense and have the right
to retain separate counsel in any such action and participate in the defense thereof, but, except for
reasonable costs associated with the defense provided by or on behalf of the Authority, the fees
and expenses of such counsel shall be at the expense of the Indemnified Party unless the retaining
of such counsel has been specifically authorized by the Contractor. The Contractor shall not be
liable for amounts payable in respect of any settlement or any such action effected without its
consent. If any such action is settled with the consent of the Contractor, or if there is a final
judgment for the plaintiff in any such action, the Contractor must promptly pay all such costs and
satisfy such judgment.
5.1.2
Patent Infringement
The Contractor must indemnify and hold harmless the Indemnified Party from and against all
liabilities, actions, damages, claims, demands, judgments, losses, costs, expenses, suits or actions
and reasonable attorney's fees, and the reasonable cost of the defense of the Indemnified Party in
any suit, including appeals, based upon or arising out of an allegation of infringement, violation
or conversion of any patent, license, proprietary right or other related interest in connection with
or as a result of this Agreement or the performance by the Contractor of any of its obligations
under this Agreement.
5.1.3
Violation of Applicable Law
The Contractor must protect, indemnify and hold the Indemnified Party harmless from and against
all penalties, fines and charges of any federal, state or local government having jurisdiction over
the Processing Facility or any aspect of the Service, all liabilities, actions, damages, claims,
demands, judgments, losses, costs, expenses, suits or actions and reasonable attorneys' fees, and
the reasonable cost of the defense of the Indemnified Party in any suit or action (including appeals)
arising from any violation of Applicable Law by the Contractor in connection with, or as a result·
of, this Agreement or the performance of its obligations under this Agreement. The Contractor is
not responsible to an Indemnified Party under this Section for a violation of Applicable Law to the
extent that the violation was the result of the willful misconduct or negligent act, error or omission
of the Indemnified Party. The Indemnified Party must promptly notify the Contractor of the
assertion of any claim against which it is indemnified hereunder, and must not settle such claim
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without the approval of the Contractor, which approval must not be unreasonably withheld.
5.1.4
Use of Processing Facility or Alternate Processing Facility
The Contractor must protect, indemnify and hold harmless the Indemnified Party from and against
all liabilities, actions, damages, claims, penalties, demands, judgments, losses, costs, expenses,
suits or actions and reasonable attorneys' fees, and the reasonable costs of defense of the
Indemnified Party (including, without limitation, any costs of response, removal of material,
remediation, any other cleanup costs, liabilities and/or penalties under the Comprehensive
Environmental Response Compensation and Liability Act, [42 U.S.C. 9601 et seq.], the Solid
Waste Processing Act [42 U.S.C. 6901 et seq.] or comparable State or Federal law based upon or
arising out of (i) the actual use of or (ii) the discovery of Hazardous Waste or hazardous substances
at the Facilities used for or relating to the transportation or Processing of Residue under this
Agreement.
Section 5.2
Insurance.
The Contractor must provide insurance naming the Authority and the County as additional
insureds with the minimum coverage set out in Schedule VII. The liability insurance required
pursuant to this Agreement must include coverage for, and of, the indemnifications provided in
Section 5.1 of this Agreement.
ARTICLE VI - DEFAULT
Section 6.1
6.1.1
Remedies for Default.
Contractor Remedies
(a)
If the Authority breaches any of its obligations under this Agreement, the right of the
Contractor to recover damages or to be reimbursed ordinarily constitutes an adequate
remedy. Therefore, the Contractor may not terminate its obligations under this Agreement
for cause or any breach unless an Event of Default (as defined in Section 6.3) on the part
of the Authority has occurred and is continuing.
(b)
If the Event of Default under Section 6.3 has occurred on the part of the Authority and that
Event of Default remains uncured after the cure period, damages, exclusive of outstanding
Service Fee amounts, incurred by Contractor by such Event of Default must be offset by
the fair value of the revenues received for Processing of such other Ash Residue.
6.1.2
(a)
Authority Remedies
The Contractor acknowledges that a breach of this Agreement or an Event of Default by
the Contractor entitles the Authority to recover, to the extent proven, all of its damages, as
set forth in this Agreement, caused by such default or Event of Default and entitles the
Authority to other appropriate forms of relief.
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(b)
The Authority and the Contractor agree that monetary damages are not necessarily an
adequate remedy for the Contractor's Event of Default under this Agreement, nor could
monetary damages be the equivalent of the performance of such obligations hereunder,
and, accordingly, the Contractor hereby consents to the remedy of specific performance for
an Event of Default. Specific performance is a remedy in addition to, and not in lieu of,
damages.
Section 6.2
Events of Default by the Contractor.
Each of the following constitutes an Event of Default on the part of the Contractor.
(a)
The failure or refusal by the Contractor to fulfill any of its obligations to the Authority in
accordance with this Agreement, unless such failure or refusal is excused or justified
pursuant to this Agreement. Regardless of whether there exists an Event of Default, if the
Contractor fails or refuses to perform any of its obligations, the Contractor shall be liable
to the Authority for the full amount of the Authority Damages. No such failure or refusal
on the part of the Contractor or Guarantor shall constitute an Event of Default unless and
until:
(i)
the Authority has given written notice to the Contractor stating that in its opinion a
particular default or defaults (described in reasonable detail in such notice) exist
that shall, unless corrected, constitute a material breach of this Agreement on the
part of the Contractor and that give the Authority a right to terminate its obligations
to the Contractor under this Agreement for cause under this Section unless such
default is corrected within a reasonable period of time; and
(ii)
the Contractor has neither corrected such default nor initiated reasonable steps to
correct it within a reasonable period of time (a reasonable period of time, for
purposes of this paragraph, shall be five Business Days from the date of the notice
given pursuant to clause (i) of this Section 6.2(a)), provided that if the Contractor
has commenced to take reasonable steps to correct such default within such
reasonable period of time, the default shall not constitute an Event of Default for
as long as the Contractor is continuing to take reasonable steps to correct it and
the Contractor's provision of Service is not materially interrupted; or
(b)
If, by the order of a court of competent jurisdiction, a receiver, liquidator, custodian, or
trustee of the Contractor or its property is appointed and is not discharged within 60 days,
or if, by decree of such court, the Contractor is adjudicated insolvent or a major part of
its property is sequestered and such decree has continued undischarged and unstayed for
60 days after the entry of such decree, or if a petition to reorganize the Contractor pursuant
to the Federal Bankruptcy Code or any other similar statute applicable to the Contractor,
as now or hereinafter in effect, is filed against the Contractor and is not dismissed within
60 days after such filing; or
(c)
If the Contractor is adjudicated bankrupt or files a petition in voluntary bankruptcy under
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any provision of any bankruptcy law or consents to the filing of any bankruptcy or
reorganization petition against it under any such law, or (without limitation of the
generality of the foregoing) files a petition to reorganize the Contractor pursuant to the
Federal Bankruptcy Code or any other similar statute applicable to it, as now or hereafter
in effect; or
(d)
If the Contractor makes an assignment for the benefit of creditors, or admits, in writing,
an inability to pay debts generally as they become due, or consents to the appointment of
a receiver or liquidator or trustee or assignee in bankruptcy or insolvency of either the
Contractor or of a major part of its property; or
(e)
If the Contractor provides or has provided, or caused to be provided, materially false or
misleading information to the Authority; or
(f)
The failure of the Contractor or other operators of any portion of the Facilities to comply
with Applicable Law; or
(g)
The failure of the Contractor to provide a fully operational Service by the Commencement
Date, or failure to provide evidence upon request of the Authority that the Facilities will
be available by the Commencement Date; or
(h)
The processing of any material other than Ash Residue from the Authority pursuant to this
Agreement unless such material is specifically authorized by the Authority pursuant to this
Agreement.
(i)
The Contractor persistently or repeatedly materially breaches its obligations under this
Agreement even though any single breach may not rise to the level of an Event of Default.
(j)
Pursuant to Section 2.8, a change in ownership or control of the Processing Facility is
made to an owner that does not meet the requirements of Section 2.8.
(k)
Pursuant to Section 4.1, if the Processing Facility is unavailable for any reason other than
an Uncontrollable Circumstance for a period of 30 days.
Section 6.3
Events of Default by the Authority.
The following constitutes an Event of Default on the part of the Authority:
The failure by the Authority to pay an undisputed amount in excess of $1,000,000.00 that the
Authority is required to pay to the Contractor under this Agreement within 60 days after receipt
by the Authority of written demand from the Contractor accompanied by notice stating that unless
such amount is paid within 60 days after such demand the failure shall constitute an Event of
Default.
In no event shall the Authority’s failure to deliver Ash Residue constitute an Event of Default
under this Agreement since the Authority has not guaranteed delivery of any minimum quantity of
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Residue (see Section 2.12).
Section 6.4
Mitigation of Damages
The Contractor and the Authority must make reasonable efforts to mitigate the damages they
respectively incur due to a default or Event of Default caused by the breaching party.
ARTICLE VII - TERMINATION
Section 7.1
Termination for Default.
The right of termination for an Event of Default may be exercised only by a notice of Termination
(the "Notice of Termination") given to the party who has failed to cure an Event of Default. The
proper exercise of the right of termination is in addition to and not in substitution of other remedies,
whether damages or otherwise, of the party exercising the right of termination.
Section 7.2
Termination for Certain Uncontrollable Circumstances.
If, as a result of the occurrence of one or more Uncontrollable Circumstances, the Processing
Facility is closed for 10 or more days and the Alternate Processing Facility is not available, then
the Authority may terminate this Agreement upon notice to the Contractor. If this Agreement is
so terminated, then neither party shall owe or be liable to the other party for any amounts otherwise
due hereunder, except for (i) Service Fee and pass-through amounts due for Ash Residue actually
delivered prior to the effective date of the termination and (ii) amounts otherwise owed by the
Contractor under this Agreement.
Section 7.3
Termination for Convenience.
In the event the Authority terminates this Agreement for convenience, the Contractor will be
entitled to Service Fees earned as of the date the Agreement is terminated. At the election of the
Authority, the Authority may negotiate a fair and reasonable price to purchase from the Contractor
the rolling stock bought by the Contractor specifically to provide the Services in this Agreement
(“Dedicated Equipment”). If the Authority decides not to buy the Dedicated Equipment and the
Contractor has no other use for the Dedicated Equipment, the Contractor shall dispose of the
Dedicated Equipment on a competitive basis for its fair market value. The Contractor will be
entitled to payment by the Authority of reasonable, documented, previously unbilled expenses
incurred as a direct result of the termination for convenience, less the revenue obtained from the
sale of the Dedicated Equipment. In no event will the Contractor be entitled to (a) unearned
Service Fees, or (b) anticipatory profits.
ARTICLE VIII- TERM; RENEWAL
Section 8.1
Term.
The Original Term of this Agreement is from July 1, 2017 to June 30, 2024.
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Section 8.2
Renewal.
Upon 360 days written notice to the Contractor, the Authority may, at its sole discretion, renew
this Agreement for one term of seven additional years on the same conditions as those of the
Original Term (“Renewal Term”). If the Authority exercises its option for the Renewal Term, at
the start of the Renewal Term the Contractor must provide, at its cost, new replacements for all
Containers used in performing the Service, and the mechanical overhaul, refurbishment or
replacement of other contract-related equipment to like new or excellent mechanical condition.
Section 8.3
Multi-Year Agreement Contingency.
Continuation of this Agreement in future years is contingent upon the subsequent appropriation of
funds and encumbrance of those appropriated funds for this Agreement by the County; if funds
are not appropriated and encumbered for future years of this Agreement, this Agreement will
become null and void. Contractor is aware that no funds have been appropriated at this time for
future years of this Agreement nor have any funds been encumbered at this time for future years
for this Agreement. Contractor acknowledges that the County has no obligation to appropriate or
encumber funds for the subsequent years of the Agreement.
ARTICLE IX - REPRESENTATIONS AND WARRANTIES
Section 9.1
Representations and Warranties of the Authority.
The Authority hereby makes the following representations and warranties, as of the date of
execution and delivery of this Agreement which are ongoing during the term and any renewal of
this Agreement, to and for the benefit of the Contractor:
(a)
The Authority is a body politic and corporate established by Title 3, Subtitle 9 of the
Natural Resources Article of the Maryland Code to assist its participating political
subdivisions of Maryland and other public entities in providing adequate solid waste
disposal facilities, including facilities for the generation of steam, electricity or fuels and
recovery of materials that are derived from or are otherwise related to waste disposal.
Participating jurisdictions ("the Members” or “Member Jurisdictions”) include Baltimore
City and Anne Arundel, Baltimore, Carroll, Frederick, Harford, Howard and Montgomery
Counties. The Authority acts as a coordinating agency and a financing vehicle for solid
waste management projects. The Authority is a body politic and corporate validly existing
under the Constitution of laws of Maryland, with full legal right, power and authority to
enter into and perform its obligations under this Agreement.
(b)
The Authority has duly authorized the execution and delivery of this Agreement and 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.
(c)
Neither the execution or delivery by the Authority of this Agreement, nor the performance
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of the Authority's obligations in connection with the transactions contemplated hereby nor
the Authority's fulfillment of the terms or conditions of this Agreement (i) conflicts with,
violates or results in a breach of any Applicable Law, or (ii) conflicts with, violates or
results in a breach of any term or condition of any judgment or decree, or any 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 thereunder.
(d)
No approval, authorization, order or consent of, or declaration, registration or filing with,
any governmental authority is required for the valid execution and delivery by the
Authority of this Agreement except those laws that have been duly obtained or made.
(e)
The Authority enters into this Agreement on behalf of Montgomery County, MD and its
sole source of funding for payment for Services in this Agreement is through funds
provided in accordance with the Authority’s Intergovernmental Agreement, Task Order 14
with Montgomery County.
Section 9.2
Representations and Warranties of the Contractor.
In addition to representations and warranties made elsewhere in this Agreement, the Contractor
hereby makes the following representations and warranties, which are ongoing during the term
and any renewal of this Agreement, to and for the benefit of the Authority:
(a)
The Contractor is duly organized and validly existing as a Corporation under the laws of
the __________ of ___________ and is registered to do business in the State of Maryland
with full legal right, power and authority to enter into and perform its obligations under
this Agreement, and is duly qualified to do business and is in good standing in each
jurisdiction in which the character of the properties owned by it therein or in which the
transaction of its business makes such qualification necessary, including but not limited to,
the State of Maryland.
(b)
The Contractor has duly authorized the execution and delivery of this Agreement and this
Agreement has been duly executed and delivered by the Contractor and constitutes a legal,
valid and binding obligation of the Contractor, enforceable against the Contractor in
accordance with its terms.
(c)
Neither the execution or delivery by the Contractor of this Agreement, nor the performance
by the Contractor of its obligations in connection with the transactions contemplated
hereby, or the fulfillment by the Contractor of the terms or conditions of this Agreement
(i) conflicts with, violates or results in a breach of any Applicable Law, or (ii) conflicts
with, violates or results in a breach of any term or condition of any judgment or decree, or
any 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 thereunder or (iii) will
result in the creation or imposition of any lien, charge or encumbrance of any nature
whatsoever upon any of the properties or assets of the Contractor.
(d)
No approval, authorization, order or consent of, or declaration, registration or filing with,
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any governmental authority is required for the valid execution and delivery of this
Agreement or for the performance by the Contractor during the term of the Agreement,
except such as have been duly obtained and made and except for any pending permit
amendment application allowing for the Processing of Residue pursuant to this Agreement
at the Processing Facility. The Contractor has submitted such permit amendment
application to all appropriate authorities and has no reason to believe the permit amendment
application will not be granted.
(e)
Except as disclosed to the Authority, in writing, there is no action, suit or proceeding, at
law or in equity, before or by any court or governmental authority, pending or, to the best
of the Contractor's knowledge, threatened against the Contractor, wherein an unfavorable
decision, ruling or finding would materially adversely affect the performance by the
Contractor of its obligations hereunder or in connection with the transactions contemplated
hereby, or which, in any way, would adversely affect the validity or enforceability of this
Agreement, or any other agreement or instrument entered into by the Authority in
connection with the transactions contemplated hereby.
(f)
There are no violations of Applicable Law, or notices of violations of Applicable Law with
respect to the Processing Facility or, to the best of Contractor’s knowledge, information
and belief, any Alternate Processing Facility.
(g)
There are no pending or threatened eminent domain actions or sales in lieu of eminent
domain for all or any portion of the Processing Facility or the Alternate Processing Facility.
The Contractor must give the Authority notice of any change in any representation or warranty
made by it in this Agreement.
ARTICLE X - MISCELLANEOUS
Section 10.1
Authority Representative and Contractor Representatives.
(a)
The Authority Representative is the Executive Director of the Northeast Maryland Waste
Disposal Authority or the Executive Director’s designee.
(b)
The Contractor Representative is the President of the Contractor's company or any vice
president of the Contractor's company who the Contractor designates as the Contractor
Representative and who is authorized to contractually bind the Contractor.
(c)
Any party may change its authorized representative upon five (5) Business Days' written
notice to the other party. Only the Authority Representative or the Contractor
Representative may make the approvals, requests and notices by a party to the other party
under this Agreement.
Section 10.2
Assignment/Third Party Beneficiary.
The Contractor may not assign this Agreement without the prior written consent of the Authority.
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The parties agree that Montgomery County is a third-party beneficiary of all of the obligations of
the Contractor under this Agreement. The County has the right, but not the obligation, to enforce
rights, remedies, powers and privileges of the Authority under this Agreement if the County
provides ten days prior written notice to the Authority and the Contractor.
Section 10.3
Notices.
All notices, designations, consents, approvals, and other communications required, permitted
or otherwise delivered under this Agreement shall be in writing and may be emailed, sent by
facsimile or delivered by hand or mailed by first class registered or certified mail, return receipt
requested, postage prepaid, and in any case shall be addressed as follows:
If to the Authority:
Executive Director
Northeast Maryland Waste Disposal Authority
Tower II, Suite 402
100 S. Charles Street
Baltimore, MD 21201
Phone: (410) 333-2730
Fax: (410) 333-2721
With Copy to the County:
Chief, Division of Solid Waste Services
Montgomery County DEP
101 Monroe Street, 6th Floor
Rockville, MD 20850
If to the Contractor:
___________________________
___________________________
___________________________
Phone: ___________
Fax: ____________
Any party entitled to receive communications under this Agreement may change the address to
which its communications are delivered by notice to the other parties. Any communications given
by mail in accordance with this Section 10.3 shall be deemed to have been given five Business
Days after the date of mailing; communications given by any other means shall be deemed to have
been given when delivered.
Section 10.4
Entire and Complete Agreement.
This Agreement (including Schedules I through XI to this Agreement) constitutes the entire and
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complete agreement of the parties with respect to its subject matter and supersedes all prior or
contemporaneous understandings, arrangements, commitments and representations, all of which,
whether oral or written, are merged into this Agreement. The Schedules to this Agreement are an
integral part of this Agreement and shall be afforded full force and effect as though incorporated
in their entirety in the Articles of this Agreement.
Section 10.5
Binding Effect.
This Agreement binds and inures to the benefit of the parties to this Agreement and any successor
or assigns acquiring an interest hereunder permitted by Section 10.2.
Section 10.6
Further Assurances and Amendments.
Each party shall execute and deliver any instruments and perform any acts necessary and
reasonably requested by the other party in order to give full effect to this Agreement.
Section 10.7
Governing Law and Venue.
The laws of the State of Maryland govern the validity, interpretation, construction and performance
of this Agreement. The parties agree that any action arising out of or related to this Agreement
shall be brought by the parties and tried in a court of Montgomery County in the State of Maryland.
To the extent that any action brought is within the jurisdictional powers of the Circuit Court for
Montgomery County, Maryland, the action must be brought in the Circuit Court.
Section 10.8
Counterparts.
The Authority and the Contractor may execute this Agreement in counterparts, each of which is
deemed an original, and all of which, when executed and delivered, together constitute one and
the same instrument.
Section 10.9
Amendment or Waiver.
Neither the Authority nor the Contractor may change, modify, amend or waive this Agreement
or any provision of this Agreement except by a written instrument signed by the party against
whom enforcement of such change, modification, amendment or waiver is sought.
Section 10.10 Confidential Information.
The rights and obligations of the parties set forth herein with respect to Confidential Information
are subject to Applicable Law, including Title 4 of the General Provisions Article of the Annotated
Code of Maryland, as amended (the "Maryland Public Information Act").
To the extent permitted by Applicable Law, the Authority shall hold Confidential Information in
strict confidence and take all reasonable precautions to prevent disclosure to third parties. The
Contractor must identify and mark any information which it believes to be confidential and
covered by a privilege pursuant the Maryland Public Information Act. The Authority shall
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promptly notify the Contractor of any Person who requests a disclosure of Confidential
Information. The Authority in its sole discretion shall determine the response to any request for
disclosure of Confidential Information and is not required to withhold disclosure of information
upon a lawful request for information if the information is not protected by the Maryland Public
Information Act. The Authority shall consider any information or legal arguments presented by
the Contractor before the disclosure of the requested information.
Section 10.11 Severability.
If a court of competent jurisdiction determines any provision of this Agreement is, for any
reason, invalid, illegal or unenforceable in any respect, the parties hereto shall negotiate in good
faith and make such amendments, modifications or supplements of or to this Agreement, that to
the maximum extent practicable in light of such determination, implement and give effect to the
intentions of the parties as reflected herein, and the other provisions of this Agreement shall, as so
amended, modified or supplemented, or otherwise affected by such action, remain in full force and
effect.
Section 10.12 Reserved.
Section 10.13 Effect of Authority Approvals.
(a)
No review, comment or approval by the Authority under this Agreement affects the rights,
remedies, powers or privileges of the Authority in connection with (i) licenses, permits,
reviews or approvals pursuant to Applicable Law, (ii) the enactment, interpretation or
enforcement of any Applicable Law, (iii) any of its other governmental functions, or (iv)
matters not related to this Agreement.
(b)
No review, comment or approval, nor any failure to review, comment or give approval, by
the Authority under this Agreement relieves the Contractor of any of its obligations under
this Agreement or imposes any liability upon the Authority.
Section 10.14 Dispute Resolution.
The Authority and the Contractor shall in good faith attempt to resolve any dispute or matter in
controversy under this Agreement. All disputes under this Agreement, if not resolved by the
parties, shall, in accord with Section 10.7, be resolved by courts of competent jurisdiction in
Montgomery County, MD and in accordance with the laws of the State of Maryland.
Section 10.15 Limitation of Liability and Defenses.
(a)
The execution and delivery of this Agreement by the Authority shall not impose any
personal liability on the members, officers, directors, employees or agents of the Authority.
No recourse shall be had by the Contractor for any claims based on this Agreement against
any member, officer, employee or other agent of the Authority in his individual capacity,
all such liability, if any, being expressly waived by the Contractor by the execution of this
Agreement.
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(b)
Unless specifically excused by this Agreement, the Contractor shall not assert impossibility
or impracticality of performance, the existence, nonexistence, occurrence or nonoccurrence
of a foreseen or unforeseen fact, event or contingency that may be a basic assumption of
the Contractor, or commercial frustration of purpose as a defense against any claim by the
Authority against the Contractor.
(c)
The execution and delivery of this Agreement by the Contractor shall not impose any
personal liability on the members, officers, directors, employees or agents of the Contractor
except in circumstances of fraud or that would justify piercing of the corporate veil. No
recourse shall be had by the Authority for any claims based on this Agreement against any
member, officer, employee or other agent of the Contractor in its individual capacity
except as stated above, all such liability, if any, being expressly waived by the Authority
by the execution of this Agreement.
Section 10.16 Minority-Owned Business Participation Requirements.
There are no requirements for use of Minority-Owned businesses. If inclined, the Contractor is
encouraged to utilize the Montgomery Procurement Regulations regarding participation in the
Minority-Female-Disabled (MFD) procurement program.
Section 10.17 Time of the Essence.
Time is of the essence in the performance of this Agreement.
Section 10.18 Eminent Domain.
In the event the Processing Facility is acquired by a condemning authority by condemnation or
sale, the parties agree that upon such acquisition becoming effective, the Contractor shall make
payments to the Authority under the following circumstances and in the following amounts:
(a)
If all or a significant portion of the Processing Facility is acquired by a condemning
authority and an Alternate Processing Facility is unavailable, the Contractor shall pay the
Authority as liquidated damages the sum of the Service Fee for each Ton of Ash Residue
delivered by the Authority for the previous 12 months (prorated if less than 12 months)
plus five percent (5%).
(b)
The Contractor must provide the Authority with prompt notice of any attempt or desire by
a condemning authority to acquire any portion of the Processing Facility. The Contractor
must not enter into an agreement of sale of the Processing Facility, or a significant portion
of the Processing Facility, with a condemning authority without: (i) having an Alternate
Processing Facility available to satisfy the terms of this Agreement; and (ii) providing for
nine (9) months advance notice of the pending sale; and (iii) providing for the payment of
liquidated damages to the Authority in the amount of the Service Fee for each Ton of Ash
Residue delivered by the Authority for the previous 12 months (protracted if less than 12
months) plus five percent (5%).
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(c)
If a condemning authority acquires all or a significant portion of the Processing Facility
and an Alternate Processing Facility is available, the Service Fee for each Ton of Ash
Residue delivered by the Authority will be reduced by a fair and reasonable amount
determined by the Authority relative to the exact circumstances associated with the shift in
operations to the Alternate Processing Facility, but in no case greater than Three Dollars
($3.00) in 2015 dollars.
Section 10.19 Parent Company Guaranty.
As a condition of and a material inducement to the Authority to enter into this Agreement, the
Contractor's parent company, _________________ (“Guarantor”), has agreed to and does
guaranty the performance of all of Contractor's obligations and responsibilities under this
Agreement. Concurrently with the Contractor’s execution of this Agreement it must provide a
Guaranty from __________________ substantially in the form in Schedule XI.
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IN WITNESS WHEREOF, the Authority and the Company have executed and sealed this
Agreement.
WITNESS:
NORTHEAST MARYLAND WASTE
DISPOSAL AUTHORITY
______________________________
By: ______________________________________
Date:
WITNESS:
[COMPANY]
______________________________
By: ______________________________________
[Representative]
Date:
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SCHEDULES
Table of Contents
SCHEDULE I – Definitions ......................................................................................................... 1
SCHEDULE II - Definition of the term "Service" .................................................................... 7
SCHEDULE III – Operations Plan [As Submitted by Contractor] ....................................... 11
SCHEDULE IV – Service Fee .................................................................................................... 12
SCHEDULE VI - RRF Operations and Maintenance Plan: Safety ....................................... 19
SCHEDULE VII – Required Insurance ................................................................................... 27
SCHEDULE VIII – Performance Bond Format ...................................................................... 30
SCHEDULE IX - Partial List of Applicable Rules and Regulations ..................................... 34
SCHEDULE X – Monthly Invoice Format ............................................................................... 35
SCHEDULE XI – Guaranty ...................................................................................................... 36
SCHEDULE I – Definitions
The following definitions apply to this Agreement:
"Agreement” means this Agreement between the Contractor and the Authority including Schedules
I through XI and their exhibits, attachments, and appendices and includes in order of precedence,
the Agreement, the Request for Proposals dated ____________ (“RFP”) and any addenda thereto,
and the Contractor’s Proposal dated ________________ (“Proposal”) and any Best and Final
Offers (“BAFO”).
"Alternate Processing Facility" means an approved and permitted location for processing Residue
for recycling or beneficial use in the event the primary Processing Facility is not available.
“Applicable Law” means any law, regulation, requirement or order of any federal, state or local
agency, court or other governmental body (including, without limitation, the Montgomery County
Comprehensive Solid Waste Management Plan and the permits, licenses and governmental
approvals in place as of the date of this Agreement), applicable from time to time to: (I) the
acquisition, design, construction, equipping, testing, ownership, possession or operation of the
Processing Facility or Alternate Processing Facility; (2) the Transportation System; (3) the
Agreement; (4) the provision of the Service or (5) the performance of any obligations under the
Agreement or any other agreement entered into in connection with the Agreement. Applicable Law
does not include any law adopted by a governmental body which is enacted for the sole purpose of
modifying rights or obligations under the Agreement. Compliance with Applicable Law includes
the requirement that the Contractor is in compliance with any host community agreements.
"Ash Residue" means the material (including, but not limited to, fly ash, bottom ash, and sifting)
that remains after waste has been combusted at the Resource Recovery Facility, and after
salvageable items, if any, have been removed from the material.
“Authority” means the Northeast Maryland Waste Disposal Authority its successors and permitted
assigns.
"Authority Damages" means all costs, expenses, and losses incurred or suffered by the Authority
as the result of the Contractor’s failure to comply, in whole or in part, with the terms of this
Agreement, including, but not limited to costs and expenses related to: transportation costs,
Processing costs at another facility, a new procurement, delay damages, and any other losses, costs,
or damages incurred as a result of a breach of this Agreement by the Contractor.
“Beneficial Reuse” or “Beneficially Reused” means the use of material generally treated as Ash
Residue for a worthwhile purpose such as construction, mine reclamation, or manufacturing in an
application where the material serves as a substitute for virgin or other alternative materials and
causes no net adverse effects on the environment. Beneficial Reuse also includes use of such
material on an experimental basis to determine the feasibility of reuse of the material.
“Business Day” means any day other than Saturday, Sunday or a day on which either State or
national banks in Maryland are not open for normal banking business.
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“Commencement Date” means July 1, 2017.
“Confidential Information” means information that is deemed to be confidential commercial or
financial information as defined by the Maryland Public Information Act, Title 4, General
Provisions Article of Maryland Code.
"Container" means any containers, boxes, trailers, and other equipment routinely used in the Ash
Residue industry to temporarily store and transport Ash Residue provided by or on behalf of the
Contractor to satisfy the Contractor's obligations under this Agreement.
"Contractor" means _________________
"County" means Montgomery County, Maryland, and its successors and assigns.
"Covanta" means Covanta Montgomery, Inc. and its permitted successors and assigns.
"DEP/DSWS" means the Montgomery County Department of Environmental Protection /Division
of Solid Waste Services or any successor agency.
"Existing System" means the County's solid waste management system including the Transfer
Station, the RRF, and the rail transportation system facilities and associated equipment in place on
July 1, 2017.
"Facilities" means all those certain portions of the facilities, sites and equipment involved in and
peculiar to the performance of the Contractor's obligations under this Agreement including but not
limited to the Processing Facility, Alternate Processing Facility, the Transportation System and
Facility Improvements where the Contractor is accepting, handling, loading, unloading, disposing,
Recycling or staging equipment, materials, Containers and Ash Residue.
"Fiscal Year" means the year commencing on July 1 of any calendar year and ending on June 30
of the succeeding calendar year.
"Guarantor" means __________________________________________
"Hazardous Waste":
(a)
Any material or substance which, because of its composition or characteristics, is unlawful
to treat, store or dispose of at the Processing Facility or Alternate Processing Facility and
is considered hazardous under Applicable Law, including, without limitation, materials that
are:
(i)
regulated as a toxic or hazardous waste as defined under either Subtitle C of the
Solid Waste Disposal Act, 42 U.S.C. SS 6921-6939a, or Section 6(e) of the Toxic
Substances Control Act, 15 U.S. C. SS 2605(e), as replaced, amended, expanded or
supplemented, and any rules or regulations promulgated thereunder, or under the
Environment Article of the Annotated Code of Maryland, Title 7, Section 7-101 et
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seq., as replaced, amended, expanded or supplemented; or
(ii)
(b)
low level nuclear materials, special nuclear materials or nuclear by-product
materials, all within the meaning of the Atomic Energy Act of 1954, as replaced,
amended, expanded or supplemented, and any rules, regulations or policies
promulgated thereunder; and
Any other material which any governmental body or unit having appropriate jurisdiction
shall lawfully determine, from time to time, to be ineligible for Processing or processing at
the Processing Facility or, if applicable, the Alternate Processing Facility because of the
harmful, toxic or dangerous composition or characteristics of the material or substance.
RACM managed in accordance with applicable laws and regulations shall not be considered
a Hazardous Ash Residue in the context of this Agreement.
"Major Outage" means the unavailability of the Transfer Station or RRF to transport or process
Waste such that the storage capacity at the RRF is or can reasonably be expected to be exceeded
within 72 hours.
"Operations Plan" means the Authority approved Contractor Operations Plan provided in Schedule
III.
"Person" means any individual, corporation, partnership, joint venture, association, joint stock
company or unincorporated organization, or any government unit or agency or political subdivision
not otherwise expressly named in this Agreement.
"Processing" means landfill processing, sorting, screening, mixing or using other technologies to
make the Ash Residue or portions of the Ash Residue more amenable for Beneficial Reuse or
Recycling, including use as alternate daily cover or as a construction material. It also means
stabilizing material prior to placement in another type of Processing Facility.
"Processing Facility" means ___________________
“Recycling” means the processing of Ash Residue to produce new products for use, as defined by
the rules and regulations of the state in which the processing occurs.
"Required Insurance" means the types and amounts of insurance set forth in Schedule VII.
"Resource Recovery Facility (RRF)" means the Montgomery County refuse-to-energy, solid waste
processing facility located near Dickerson, Maryland, in accordance with the County’s Ten-Year
Plan.
"Service" means the definition set forth in Schedule II.
"Service Fee" has the meaning set forth in Schedule IV of this Agreement.
"Subtitle D" means the requirements set forth in the EPA Solid Waste Processing Facility Criteria:
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Final Rule, 40 CFR, Parts 257 and 258, as published in the Federal Register on October 9, 1991 as
amended.
"Ton" means a short ton which is two thousand (2,000) pounds.
"Transfer Station" means the Transfer Station facilities owned by the County and located at 16101
Frederick Rd., Derwood, Maryland, together with all improvements located at the site.
"Transportation System" means all trucks, rail cars, tractors, chassis, containers, loaders, cranes,
standby vehicles, and all other equipment necessary for the Contractor's acceptance and handling
of Ash Residue at the RRF, and transportation of the Ash Residue to the Processing Facility or
Alternate Processing Facility.
"Unacceptable Waste" means Hazardous Waste or material that is not Ash Residue.
"Uncontrollable Circumstance" means an event or condition listed in this definition, affecting the
Facilities or the County Facilities, the County, the Authority, Covanta or the Contractor, that has a
material and substantial adverse effect on the Parties' obligations under the Agreement, the
Facilities or the County Facilities, or the acquisition, design, construction, testing, operation,
ownership, or possession of the Facilities or the County Facilities, or upon the delivery of Ash
Residue to the Processing Facility or Alternate Processing Facility, if such event or condition is
beyond the control, and not the result of willful or negligent action or a lack of due diligence, of
the non-performing party relying thereon as justification for not performing any obligation or
complying with any condition required of such party, or for delaying such performance or
compliance. The following events or conditions, and no others, constitute Uncontrollable
Circumstances if they meet the requirements of the preceding sentence:
(a)
An act of God (but not including reasonably anticipated weather conditions for the
geographic area of the Processing Facility or Alternate Processing Facility), hurricane,
flood, landslide, earthquake or similar occurrence, fire, explosion or other casualty, or
blockade, insurrection, riot, general arrest or restraint of government and people, civil
disturbance or similar occurrence, or sabotage.
(b)
The order or judgment or other enforceable administrative determination of any
governmental body, if it is not also the result of willful or negligent action or a lack of
reasonable diligence of the non-performing party and the non-performing party does not
control the administrative agency or governmental officer or body, and has not solicited
such action from the administrative agency or governmental officer or body and has
exercised all reasonable efforts to oppose such action, provided that the diligent contest in
good faith of any such order or judgment shall not constitute or be construed as willful or
negligent action or a lack of reasonable diligence of such non-performing party;
(c)
The adoption, promulgation, issuance, material modification or change in enforceable
administrative or judicial application, after the date of the Agreement, of any federal, state,
County, or local law, regulation, rule, requirement, plan or ordinance, provided that the
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non-performing party has exercised reasonable efforts to oppose any such promulgation or
interpretation; a law, regulation, rule, requirement, plan or ordinance is deemed to be duly
adopted, promulgated, issued or otherwise officially modified or changed in interpretation,
when it is in provisional, interim or final form and effective or to become immediately
effective without any further action by any Governmental Body having jurisdiction;
(d)
The failure to issue, termination, suspension, denial or failure of renewal of, or
unreasonable delay in connection with the foregoing with respect to any permit, license,
consent or approval (including, without limitation, the permits, approvals and consents
necessary to operate the Processing Facility and Alternate Processing Facility necessary for
the performance of the non-performing party's obligations under this Agreement, or, after
the date of execution of, this Agreement, the imposition of any new condition in a permit,
license, consent or approval, provided that the non-performing party has given the other
party sufficient notice of the application for and proceedings relating to the permit, license,
consent or approval to afford the other party an opportunity to participate fully in those
proceedings;
(e)
The failure of the jurisdiction in which the Processing Facility or Alternate Processing
Facility as applicable is situated or the appropriate federal or state agencies or public
utilities having operational jurisdiction in the area of location of such facilities to provide
and maintain and assure the maintenance of all utilities services to the Processing Facility
or Alternate Processing Facility necessary for operation of such facility, provided they are
essential to such operation, and provided that the Processing Facility or Alternate
Processing Facility as applicable has made good faith efforts to work with pertinent utility
providers to remedy issues relating to the discontinuation of utility services;
Subcontractor's default or a labor action are not Uncontrollable Circumstances. The term
"reasonable control" includes investigation or planning that is required by sound management or
industry practices. No change in any applicable law imposing or increasing any Nonmaterial Tax,
fee, assessment or charge shall constitute an Uncontrollable Circumstance. Contractor accepts the
risk of any such Nonmaterial Tax, fee, assessment or charge and is responsible for any such tax,
fee, assessment or charge event that merely makes the Contractor's performance more expensive.
"Waste" means all waste which is not Unacceptable Waste, such as:
(a)
Household garbage, trash, rubbish, offal and refuse of the kinds normally generated by
residential housing units and non-industrial commercial establishments located in the
County, including, without limitation:
(i)
large household items such as beds, mattresses, sofas, bicycles, baby carriages,
automobile parts, and roofing materials of the types and in proportionate amounts
that are generally collected by the County and private haulers from residential
housing units located in the County; and
(ii)
trees, branches, leaves, twigs, grass and plant cuttings which are not diverted to
composting facilities due to size, the presence of impurities, or other reasons; and
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(iii)
automobile or small vehicle tires; and
(b)
The types of commercial and light industrial waste that are normally generated by
governmental, commercial and light industrial and manufacturing establishments located
in the County.
(c)
Non-processible Waste, and Bypass Waste from the RRF.
(d)
Non-processible Waste delivered to the Transfer Station including but not limited to
nonhazardous construction and demolition debris.
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SCHEDULE II - Definition of the term "Service"
The Service includes but is not limited to the following responsibilities:
Work Statement/Specifications
I.
Overview and General Requirements
A.
Complete Ash Residue Handling, Transportation, and Processing System - The
Contractor must provide a complete Ash Residue handling, transportation and
Processing system to manage all Ash Residue requiring Processing which is
produced at the RRF.
B.
Transportation - The Contractor must provide a complete Ash Residue
transportation system to transport Ash Residue from the RRF via rail to the
Processing Facility, any Alternate Processing Facility, or other permitted
Processing or recycling facilities in accordance with this Agreement. The Ash
Residue transportation system must include all Containers, rail cars, and other
equipment required for the loading of Ash Residue and the transportation of all of
the Ash Residue to the Processing Facility or other facility designated by the
Authority in accordance with this Agreement.
C.
RRF Resources and Capabilities - At the RRF, the Contractor must provide and
maintain [the number of] Containers for the receipt of Ash Residue. Containers
must be readily available to Covanta at all times to enable the operation of the RRF
to continue without material adverse effects due to the Contractor activities or lack
thereof. The Contractor must also maintain a sufficient number of extra Containers
at the RRF to accommodate a minimum of two days of maximum Ash Residue
generation at 540 Tons per day. These Containers would be used if there were any
substantial problem with the transportation system or critical transfer and receiving
locations. The Contractor must work with Covanta to assure the efficient movement
of filled Containers at the rail yard and the loading and unloading of filled and empty
Containers from the rail system.
D.
Provision of Processing Facilities - The Contractor must take all actions necessary
to enable the Ash Residue to be properly accepted, transported and disposed or
recycled at the Processing Facility, any Alternate Processing Facility, or other
Processing or recycling facilities in accordance with this Agreement. An Authorityapproved Alternate Processing Facility or other Ash Residue management facility
approved by the Authority and satisfying the requirements of this Agreement must
be provided or made available to receive Ash Residue in the event the Processing
Facility is not available for any reason for any period of time.
E.
Ash Residue Must Only Be Transported to Authority Approved Facilities- The
Contractor must not store, handle or dispose of Ash Residue delivered by the
Authority at any site or facility, other than those explicitly approved under this
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F.
II.
III.
Agreement, without written permission from the Authority.
Contractor Must be Ready by the Commencement Date - The Contractor must
have all things necessary including Containers, equipment, appropriate staff and
other resources at the RRF, the Processing Facility, and other facilities critical to
the Ash Residue Transportation and Processing System ready and available for
operation in accordance with this Agreement by the Commencement Date.
Residue Acceptance and Recycling Facilities
A.
Acceptance of All Residue - The Contractor must be able to manage, transport and
recycle at the Processing Facility all Residue delivered at the RRF which requires
Processing.
B.
Containers - The Contractor must provide and maintain the minimum number of
Containers to be situated at the RRF as required for the efficient operation of the
Residue transportation and Processing system for the acceptance, handling,
transport, and Processing of all Residue. Containers must be available to receive
Residue during all operating hours. The Contractor must also maintain a sufficient
number of extra Containers at the RRF to accommodate a minimum of two days of
maximum Residue generation. Containers must all be in new condition at the
beginning of the Contract, and the Container fleet must be completely replaced
every seven (7) years.
C.
Authority Ash Residue Only- The Contractor must not receive into the Containers,
including those provided pursuant to Section 2.2.6, material from any other source.
D.
Unacceptable Waste - If Hazardous Waste is delivered to the Contractor, placed in
the Contractor's Containers or other containers in use as part of the Residue
transportation and Processing system, and transported by the Contractor from the
RRF, the Contractor is obligated to (a) notify the County of delivery of such
Hazardous Waste, (b) set aside and isolate such Hazardous Waste from all other
Ash Residue, and (c) transport and dispose (or arrange for transportation and
Processing) of the Hazardous Waste in accordance with all applicable state and
federal statutes and regulations, subject to Section 2.11(d) herein.
Ash Residue Transportation System
A.
Technical Compatibility - The Contractor must provide Containers and equipment
sufficiently compatible with the Authority’s Existing System to minimize impacts
on existing operations. All Containers and equipment associated with the rail
transportation system must meet applicable requirements of CSX Transportation.
B.
Container Requirements - The Contractor must comply with the following
requirements:

A sufficient number of Containers and other equipment, including back-up
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equipment needed or beneficial to meet good engineering practices and good
operating practices, must be provided to handle all Ash Residue delivered
to the Contractor pursuant to the Agreement.
IV.

Containers that receive Ash Residue must be or able to become totally
enclosed. Open top containers must have tight fitting covers. All Containers
must have water tight doors.

All Containers must have a uniform appearance. The color of painted
equipment must be approved by the Authority and the equipment must be
kept clean and free of damaged paint.

The Contractor will be responsible for the condition of all Containers, and
equipment that constitute the Contractor's transportation system. The
Contractor must maintain all such equipment in good repair so that it meets
its intended function, presents a clean appearance and is free of graffiti, and
is free from odors sufficient to cause a nuisance. Container seals must be
cleaned each time they are emptied. Containers must be cleaned as
necessary and kept free of debris in accordance with best management
standards in the industry. Rusted areas causing holes and any physical
damage to the containers must be repaired in a timely manner. Any
container not meeting all applicable regulatory requirements must be taken
out of service and repaired or replaced. The Contractor must have ample
spare containers to anticipate expected levels of maintenance.
Processing Facility, Alternate Processing Facility, and Other Approved Management
Facilities
A.
Processing Facility - The Contractor must provide for and ensure the availability
and maintenance of the Processing Facility for receipt of Ash Residue under this
Agreement for the entire term of the Agreement. The Processing Facility must
demonstrate that it can regularly receive the Ash Residue and process it for
Beneficial Reuse or Recycling in accordance with Applicable Law and industry
standards.
B.
Approved Recycling Alternatives- Ash Residue, or any sorted material that makes
up Ash Residue, may be taken to a processing facility, approved by the Authority,
instead of the Processing Facility and recycled into a useful product. Processing
facilities, such as those which process municipal waste combustor ash into
construction materials, must have all permits required under Applicable Law for
these types of facilities at their given locations.
C.
Alternate Processing Facility - In the event the Processing Facility becomes
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unavailable due to an Uncontrollable Circumstance, or the Contractor has
information indicating that the Processing Facility may not be available at some
time within the agreed contract term, the Contractor must immediately notify and
provide the Authority with the option of using an Alternative Processing Facility.
Use of an Alternate Processing Facility must be pursuant to the terms of this
Agreement.
D.
Prohibition on Receipt of Unacceptable Waste- The Processing Facility, Alternate
Processing Facility, or other facility approved by the Authority for the management
of Ash Residue must not be permitted to receive Unacceptable Waste which is
required under Applicable Law to be disposed of in a Subtitle C hazardous waste
facility, and, pursuant to Section 2.ll(b) of this Agreement, the Contractor must not
accept or otherwise receive Unacceptable Waste from any source at the Processing
Facility or, to the extent within the Contractor's control, an Alternate Processing
Facility.
F.
Operation of the Processing Facility - The Contractor must operate the Processing
Facility in a manner to meet the following requirements:




the Processing Facility must have and maintain all necessary permits and
approvals subject to Applicable Law needed to operate.
the Processing Facility must be open at all times necessary to receive Ash
Residue delivered under this Agreement, subject to Applicable Law.
security measures must be provided to prevent sabotage and illegal access
to facilities and equipment.
weigh scales must be maintained within legal tolerances and certification
requirements at all times. At least annually, the accuracy of the scales at the
Processing Facility must be verified. The findings must be reported in
accordance with the Agreement. If scale performance falls outside
tolerances established in Applicable Law, the County's Representative must
be notified in writing, and the situation must be remedied and invoices
adjusted in accordance with the provisions of this Agreement.
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SCHEDULE III – Operations Plan [As Submitted by Contractor]
11S
SCHEDULE IV – Service Fee
The Service Fee will be set for a year based upon the per ton price proposed by the Contractor for
the Request for Proposals for Transportation and Recycling of Ash Residue from the Montgomery
County Resource Recovery Facility dated ___________________. The per ton price will be
modified only in accordance with the Inflation Adjustment as set below.
Beginning on July 1, 2016 and each July 1 thereafter through the end of the contract, the “Inflation
Index” shall adjust the Service Fees set forth in Schedule 3 on an annual basis. The Inflation Index
shall be 75% of any increases in the Bureau of Labor Statistics' Consumer Price Index ("CPI"), All
Urban Consumers Washington-Baltimore
All
Items,
November 1996=100
CUURA311SA0, using the most recently reported index before each adjustment date. The first
adjustment shall compare July 1, 2017 to July 1, 2016. The second adjustment shall compare July
1, 2018 to July 1, 2017. Thereafter, the adjustment shall be calculated by the latest index as of
July 1 to the same index from twelve (12) months prior. The final adjustment calculation shall be
rounded to the nearest tenth of a percentage point.
The Inflation Adjustor shall be calculated as shown below. The resulting percent change shall be
the CPI adjustment for the contract year and shall not exceed 1.04.
CPI for current period less CPI for previous period equals the index point change. Multiply the
index point change by 0.75 and then divide that number by the previous period CPI and add 1 to
equal the Inflation Adjustor. The Inflation Adjuster will be rounded at the second decimal place.
The maximum Inflation Index increase, for each one-year period, shall not exceed 1.04, or 4%.
Example Calculation:
CPI for current period – 120.8
CPI for the previous period – 117.2
Index Point Change = 120.8-117.2 = 3.6
Inflation Adjustor = (3.6x.75)/117.2+1 = 1.02
There shall also be a fuel adjustment in the event the cost of diesel fuel rises above $4.00 per
gallon. The proposer must include a proposal for fuel adjustment in their proposal which will be
negotiated and included in the final contract.
12S
13S
SCHEDULE V - Reports
During and after the Agreement, the Contractor must provide certain notices and submissions to
the Authority and County. These will include, but are not limited to:
1.
Reports, Notices, and Listings
A.
If utilizing a landfill for Beneficial Reuse, annual reports will be required
indicating remaining capacity, overall and specifically reserved for the Authority
at the Processing Facility and capacity which is available, if needed, to the
Authority at the Alternate Processing Facility. The annual reports must include
information on how much Ash Residue delivered under the Agreement, and
residue from other sources, was processed at the Processing Facility and Alternate
Processing Facility, percent of permitted daily capacity committed to other users
of the Facility. Updated site plans, as applicable, reflecting filled areas and future
areas to receive solid waste (including an indication of any reserved areas) must
also be provided.
B.
A listing of all reports and notices submitted to or received from authorities
regulating portions of the Processing Facility or any portion of the Processing
Facility in which Ash Residue under this Agreement is placed must be submitted
to the Authority and County on a monthly basis. The Authority and County must
be provided with complete copies of any items on the list upon request. Any
notices of violation, potential violation, or citations pertaining to any area of the
Processing Facility or Alternate Processing Facility, if same is in use by the
Contractor pursuant to the Agreement, must be promptly submitted to the
Authority and County.
C.
Copies of all reports and notices submitted to or received from a host community
pursuant to a host community agreement. Access to copies of any amendments to
any host community agreement for either the Processing Facility or the Alternate
Processing Facility, if same is in use by the Contractor pursuant to the terms of the
Agreement, must be made available upon request by the Authority. Notice must
be given of any amendments to the host community agreement(s) which affect any
aspect of this Agreement.
D.
Any material adverse change in the financial condition of the Guarantor must be
reported.
E.
All data necessary for Covanta, the Authority and the County to comply with
reporting requirements of all applicable permits.
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Recordkeeping, and Reporting Forms
2.
The forms provided in this section are for use as a guide in providing the necessary reporting
information for the Service Agreement. The Contractor may provide other forms for use with the
written approval of the Authority.
A.
Monthly Report Format for Ash Residue Quantities
DISPOSAL/PROCESSING RECORDS
Date:
#of
containers
this month
#of
trucks
this
month
Month of
_____
(tons
received)
#of
containers
since July
1
#of
trucks
since July
1
Tons of
Waste
Received
Since July
1,
DISPOSAL
LOCATION
(Facility, Cell
#, Processing
Facility, etc.)
Waste Type:
Ash Residue
Other (please specify)
TOTAL
B.
REMAINING CAPACITY ANNUAL REPORT
(for landfills, forms for other types of facilities will be developed as appropriate)
Date:
FACILITY
Cell receiving
Montgomery County
Ash Residue
Estimated Cell
Capacity in
Tons and Cubic
Yards currently
available
Future Permitted
Cells available to
Montgomery
County
Processing Facility
Alternate Processing Facility
• Construction schedules and other applicable information may be requested as appropriate.
15S
Estimated
Future Cell
Capacity in
Tons and
Cubic Yards
C.
Date
Unacceptable Waste Reporting Form
Waste
Characteristics
Waste Amount
(lbs. or gal.)
Where
Identified
Actions taken
Attach Contractor Name, Disposal Location, and Copy of Manifests and Invoices
16S
Final
Disposition of
Waste•
Costs for
Disposal
Date (mm/dd/yy)
Time of
Arrival at
Processing
Vehicle
Regis. #
Truck
Container
#
#
Material
Type
Gross
Weight
(tons)
Tare
Weight
(tons)
Facility
TOTAL
R=Ash Residue; U=Non-Processibles; O=Other
17S
Tons
Delivered
Daily Rail Reporting Form
Date·
RRF
# Rail
Cars
# Containers
(Specify
F=Full and
E=Empty)
End
Destination
Depot
Train
Arrival
Time:
List ID #s of
cars and
Containers
Train
Departure
Time:
List ID #s of
Cars and
Containers
18S
#Rail Cars
# Containers
(Specify F=Full and
E=Empty)
SCHEDULE VI - RRF Operations and Maintenance Plan: Safety
The following is an excerpt from Covanta Montgomery’s “Operations and Maintenance Plan for
the Dickerson Massburn Facility as revised in November, 2013.”
8.0
RISK MANAGEMENT
8.1
Safety Program
The Safety Program utilized at the Montgomery Facility was developed specifically for Covanta
Resource Recovery plants and is currently in use at all company plants. The overall Program is
centrally coordinated and monitored from the Covanta Morristown office but implementation is
conducted by each plant in accordance with its specific needs. The Program provides initial
training followed by on-going review and updating on safety practices, techniques and problems
and encourages employee awareness and active participation.
The Facility Safety Coordinator (FSC) is designated to serve as the Safety coordinator for the
plant. Working under the overall guidance and support of the Covanta Regional Safety Manager,
the FSC will be responsible for accomplishing the various prerequisite procurement and
arrangements as well as implementing, coordinating and maintaining the on-going program.
Basically, the Program includes the following major components:
--
Newly hired employees receive orientation on the Facility Safety Program and
specific instruction regarding HazCom, work rules, personal safety, and the Safe
Clearance and Tagging Procedure.
--
A full-plant safety meeting will be conducted once each month. Its purpose will be
to introduce the Safety theme for the month and present basic training or
information concerning that subject. Typically, the meeting program includes
video tapes, workbooks, demonstrations, handout materials and active participation
by the employees. The Covanta Safety Manager’s system-wide report, for the
preceding month, will be summarized and pertinent points, such as findings of
unsafe conditions and/or significant accidents near-accidents, are discussed in
detail.
--
Individual, work group safety meetings will be held weekly, during the normal
work day for the maintenance and administrative/clerical staffs and during the
assigned shift of each operations team. The agenda of each meeting will be
established in accordance with the monthly theme. The meetings typically address
a particular safety rule, procedure, tool, protective equipment, or potentially
hazardous condition. In addition, the details and conditions of any recent accidents
within the plant, especially those relating to the tasks performed by the individual
work group are fully discussed with emphasis on avoiding previous mistakes.
Where appropriate, the meetings utilize visual aids and demonstration gear and
always allow time for questions and discussion.
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--
Minutes of all safety meetings are recorded and filed in the Facility. The minutes
include the leader’s name and main topics of discussion, a list of the attendees,
unanswered questions, if any, and recommendations which may have been brought
up. The Operations Supervisor will follow up on all questions or recommendations
with the assistance of the Safety Manager, if necessary.
--
First Aid instruction will be provided for all members of the Facility staff.
Arrangements are usually made with a local agency or association that is qualified
to conduct American Red Cross First Aid instruction.
--
In compliance with the Federal Hazard Communication Standard, operators and
maintenance personnel as well as administrative employees, where appropriate,
receive specific instruction regarding the hazards associated with the chemicals
utilized at the Facility, precautions to be followed, and the location of the
manufacturer’s information concerning each chemical. This file will be maintained
in up-to-date condition in the control room, with the master set kept in the
Administrative office.
--
Fire prevention and firefighting instruction are periodically conducted for all
employees in the Facility. Where possible, arrangements will be made with local
fire authorities for qualified assistance in conducting the training.
--
In accordance with OSHA requirements, detailed accident reports and records are
prepared and maintained at the Facility. In addition, Workman’s Compensation
reports are forwarded to the appropriate insurance carrier and copies of all reports
are forwarded to the Covanta Service Morristown office.
--
A thorough investigation of all accidents will be conducted to ascertain the cause
and methods of preventing a reoccurrence. If appropriate, the Facility staff will be
assisted by members of the Covanta Services Morristown staff.
--
Routine inspection and testing of all safety related equipment and protective
devices includes emergency breathing gear, firefighting equipment, first aid
supplies, and gas detectors. The objective will be to demonstrate the correct
operability of the piece of equipment, its availability for use in an emergency and
its physical condition with regard to its future use.
--
Safety bulletins or posters will be posted on the Facility bulletin boards. Such
bulletins include information concerning accidents, hazards or hazardous
conditions occurring elsewhere in the industry as well as safety reminders.
--
Walk-through inspection will be routinely conducted by the Facility staff
throughout all areas of the Facility. The inspections are intended to seek out
potential or current safety hazards including permanent equipment and building
features, housekeeping problems, personnel working habits, safe clearance
violations, and tool failures. In addition to the inspections by the Facility staff, the
Covanta Service Morristown staff will periodically survey the plant. These
inspections also cover safety equipment, training, records and other aspects of the
Facility Safety Program. All inspections are followed by a written report of the
20S
findings and recommendations where necessary. Follow up inspections are
performed by the home office staff when serious safety problems are found. Copies
of all reports are retained in the Facility as well as forwarded to the Covanta
Services Morristown office.
8.2
Emergency Plan
The Facility Manager has developed comprehensive emergency Plans of response for the
following conditions:
- Spill Prevention Control and Counter Measure Plan
- Fire and General Emergency Plan
- Crisis Management Plan
These procedures will be designed to permit frame of reference for all types of emergencies and
will in all cases provide for close coordination and cooperation with local agencies.
8.3
Fire Prevention/Fire Fighting
As integral parts of the Safety Program and the Emergency Plans, fire prevention and inspection,
and firefighting capability will be among the top priority requirements of the Montgomery Facility.
Employee awareness of the possibility and dangers of fire as well as the means of preventing fires
shall be a frequent topic of Safety Meetings and the subject of bulletin board poster. Training
sessions and drills will also instruct employees in:
- Emergency escape procedures and route assignments
- Emergency equipment operation or shutdown procedures
- Emergency rescue and medical assignments
- Firefighting team assignments and response procedures
Fire reporting, communications and coordination procedures with local fire
authorities
The designated Facility Safety Coordinator will contact the Local Fire Department to review the
Facility’s fire procedures and to establish an effective method of communication and coordination
with that authority. The local authority will be invited to offer recommendations for in-plant fire
response and assistance in training the Facility staff.
8.4
Employee Personal Protection Equipment
The Covanta safety department has evaluated the Facilities to determine hazards present or likely
to be present. Periodically, the safety department audits the Facility to ensure compliance with all
federal and state / provincial safety regulations as well as Covanta’s corporate safety procedures.
To protect our employees from occupational injuries and illness, corporate safety procedures and
site specific procedures have been developed. Covanta employs engineering and work practice
controls to eliminate hazardous conditions, whenever possible. Whenever these measures are
unsuccessful in eliminating the hazard, employees are required to use personal protective
equipment.
8.4.1
Head Protection
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



Hazard Evaluation
Potential for materials to fall from a higher elevation, potential for contacting a live
power source, potential for striking equipment or materials.
PPE Required
Hard hats are required to be worn by all personnel, contractors, vendors, temporary
employees and visitors in all areas of the Facility, except the administrative areas,
control rooms, offices, scale house, break rooms, and the maintenance shop, etc.,
unless there is a potential of injury from falling objects or overhead work in
progress.
All hard hats shall meet ANSI Z89.1 or CSA Z94.1-92 requirement for a Class B
or Class E hard hat. Metal hard hats are not permitted to be worn by any persons
required to wear a hard hat.
The use of an adjustable band is preferred, but not required.

All components of the hard hat are to be inspected on a frequent basis for defects
and/or damage.

Accessories may be attached to the hard hats provided the integrity of the outer
shell is maintained.

Holes may not be drilled into the outer shell for any reason.

The suspension systems are to be installed as recommended by the manufacturer.

If a hard hat is subject to any damage or has a worn suspension system, the hard hat
shall be inspected to determine if replacement is necessary.

Only Company provided hard hats may be worn.

The hard hat must be worn at all times within the facility boundaries in accordance
with safety policies.

To ensure maximum protection, the hard hats must be worn as intended by the
manufacturer, with the bill forward.

Only Company issued labels or stickers may be attached to the hard hat in limited
quantities, so as not to interfere with the ability to inspect the hat for defects.
8.4.2

Eye and Face Protection
Hazard Evaluation
Potential for exposure to flying particles and chemicals.
22S

PPE Required
The Company requires eye protection in most areas and provides approved safety
glasses to each employee.

It is the responsibility of the employee to request replacement when glasses are
damaged or broken.

Only Company-approved safety glasses may be used.

Safety glasses with attached side shields or goggles shall be worn in all areas of the
Facility except the administrative area (control room, offices, scale house, break
rooms, etc.), and where maintenance work poses a potential eye hazard anywhere
in the Facility as required by Appendix A of this procedure.

All eye protection shall meet the most recent ANSI Z87.1 or CSA Z94.3-92
standard for protective eye wear. All persons who are required to wear corrective
lenses shall wear ANSI Z87.1 or CSA Z94.3-92 approved eye protection over the
corrective lenses.

All safety glasses shall have attached side shields.

Different job functions may require additional eye protection, such as burning,
welding and grinding. Please refer to Appendix A.

Respiratory protection may also be required while performing these job functions
as determined by specific facility procedures. Please refer to S.P. No. 11, Appendix
A.

Welding and burning operations shall use filter lenses to protect the eyes from
injurious light radiation. Once welding or hot work is complete or the employee
removes the welding shield or burning goggles, safety glasses shall be worn before
continuing work.
8.4.3
Hand Protection

Hazard Evaluation
There is a potential for employee exposure to sharp objects, hot surfaces and
chemicals.

PPE Required
Company issued work gloves must be worn as appropriate to the work being
performed, in accordance with safety procedures and should be carried at all times.
23S

Damaged or worn out gloves must not be used and replacements should be obtained
through the supervisor.
While handling any chemicals, gloves shall be worn.
o The gloves chosen shall be resistant to the chemicals being handled.
o To determine the chemical resistance of gloves, refer to the manufacturer’s
information on the resistance of the glove.
o Acid and caustic materials shall be handled according to the manufacturer’s
safety data sheet (SDS) and the Facility’s Safety Procedure on handling
chemicals.

Hand protection shall be used when handling any materials which may be a thermal
hazard.

The use of heat resistant gloves when welding and burning is required.
8.4.4
Foot Protection

Hazard Evaluation
Potential for slips or falls, contact with chemicals, puncture by sharp objects,
materials falling on foot.

PPE Required
Proper foot protection is essential.

The Company provides a $140 subsidy (effective 1/1/09) annually for employee
purchase of ANSI-approved or CSA approved leather upper, steel-toed, protective
work boots with puncture resistant or high-density medium-lug soles, for all
personnel working at Covanta facilities, whose work duties are in areas where
safety boots are required, and not bound by safety boot reimbursement stipulations
in collective bargaining agreements.

Foot wear worn in plant areas, other than administrative areas, shall be purchased
through the Covanta work boot program, according to specifications effective
2/22/05.

Specific boot styles, pre-selected to meet this specification, have been identified by
each of numerous boot vendors for Covanta employee use.

Safety boots must be purchased off the pre-selected lists and from the three vendors
identified in the Covanta Protective Work Boot Program.

No reimbursement for safety boots purchased outside of these specifications will
be provided.
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
Union facility subsidies are as specified in the labor agreement.

All footwear shall be chemical, oil, slip and puncture resistant or high density sole
per the footwear specifications as listed below.
8.4.5


Clothing Protection
Hazard Evaluation
During normal and repair work activities the potential exists for contacting sharp
objects, hot surfaces, chemicals, hexavalent chromium exposure as a result of
inconel welding, and electrical hazard exposure.
PPE Required
100% cotton uniforms, including long sleeved shirts should be tucked in (sleeves
must be rolled down and no short-sleeved uniform shirts are to be provided),
trousers, jackets and coveralls, are provided.

The Company provides laundering for all uniforms, at no cost to the employee.

Dirty uniforms must be left at the facility and cannot be worn, taken home or
laundered at home.

Only Company issued labels or patches may be worn on the uniform.

Employees, contractors and temporary labor assigned to perform job duties in all
plant locations shall wear long pants and long sleeve shirts with sleeves rolled
down.

Tyvek coverall are also available and shall be used as required for boiler entry and
other designated job tasks.

At the end of the work day employees shall remove his/her work uniform and place
them in the designated laundry bin.

Tyvek coveralls shall also be removed and appropriately disposed of in labeled
containers.
8.4.6

Respiratory Protection
Hazard Evaluation
During normal operations, there are typically no respirator hazards present that
require the use of respiratory protection.
25S

Engineering, work practice, and administrative controls are required to be used to
prevent and/or reduce employee exposures to hazardous environments (see S.P.
No.’s 11 and 13). When these measures are not sufficient, respiratory protection
shall be used.

Emergency situations such as fires, chemical leaks or any other unforeseen
emergency could pose respiratory hazards.

PPE Required: During normal operations, respiratory protection is not normally
required, depending upon conditions (see S.P. No.’s 11 and 13). Employees may
use a respirator for personal comfort, if desired. Whenever employees may be
exposed to heavy metals, dust, and/or welding fumes, respiratory protection is
required and proper ventilation must be maintained within the work area.

Respirators are required for certain work activities. Where possible, engineering,
work practice, and administrative controls are used to reduce employee exposure
below the PEL for any airborne contaminant present. If these controls are not able
to reduce employee exposures, then respirators shall be used in accordance with
Respiratory Protection Policy – S.P. No. 11. All respirators used shall meet all
NIOSH and ANSI requirements.
8.4.7 Hearing Protection

Hazard Evaluation
PPE Required: All employees are required to wear hearing protection as required
in the Hearing Conservation Program – S. P. No. 12.
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SCHEDULE VII – Required Insurance
MANDATORY MINIMUM INSURANCE REQUIREMENTS
Provide Acceptance And Transportation By Rail Of Ash Residue Generated At The
Montgomery County Resource Recovery Facility Located In Dickerson, MD To Its Permitted
Processing Facility For Recycling And/Or Beneficial Reuse In A Manner That Enables
Recycling Credit To Be Given To Montgomery County, Maryland In Accordance With
Maryland Department Of The Environment Recycling Guidelines And Regulations Through a
Service Agreement with The Northeast Maryland Waste Authority (on Behalf of the County)
Prior to the execution of the contract by the County, the proposed awardee/contractor must obtain,
at their own cost and expense, the minimum following insurance coverage with an insurance
company/companies licensed to conduct business in the State of Maryland and acceptable to the
Division of Risk Management. This insurance must be kept in full force and effect during the term
of this contract, including all extensions. The insurance must be evidenced by a certificate of
insurance, and if requested by the County, the proposed awardee/contractor shall provide a copy of
the insurance policies and additional insured endorsements. The minimum limits of coverage listed
below shall not be construed as a limitation of any potential liability on the part of the proposed
awardee/contractor to the County nor shall failure to request evidence of this insurance in any way
be construed as a waiver of proposed awardee / contractor’s obligation to provide the insurance
coverage specified. The Contractor's insurance shall be primary. Subject to applicable law, the
insurance companies providing insurance coverage, as referenced in this agreement, may not limit
coverage to their insured, or the County as an additional insured, to stated minimum amount(s) of
insurance referenced in this contract/agreement.
Worker's Compensation/Employer's Liability
Meeting all statutory requirements of the State of Maryland Law and with the following minimum
Employers’ Liability limits:
Bodily Injury by Accident - $1,000,000 each accident
Bodily Injury by Disease - $5,000,000 policy limits
Commercial General Liability
A minimum limit of liability of five million dollars ($ 5,000,000) per occurrence, for bodily injury,
and property damage including the following coverages:
Contractual Liability
Premises and Operations
Independent Contractors
Personal Injury
Products and Completed Operations
Broad Form Property
Fire and Rescue Services Damage Legal Liability
Automobile Liability Coverage
A minimum limit of liability of five million dollars ($5,000,000), combined single limit, for bodily
injury and/or property damage coverage per occurrence including the following:
owned automobiles
hired automobiles
non-owned automobiles
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Policy shall delete the pollution exclusion with respect to the actual, alleged, or threatened
discharge, dispersal, seepage, migration, release or escape of pollutants
a) That are, or that are contained in any property that is
i. Being transported or towed by, handled or handled for movement into,
onto or from the covered auto;
ii. Otherwise in the course of transit by or on behalf of the insured.
The policy shall also include MCS-90 endorsement with a sublimit in the amount of
$1,000,000 each accident.
Environmental Impairment Liability Insurance (on site and off site)
A minimum limit of liability of ten million dollars ($10,000,000) each occurrence
Such insurance shall cover any release of toxic or hazardous waste or other hazardous substance
requiring monitoring, clean-up or other corrective actions under the Comprehensive Environmental
Response Compensation and Liability Act (CERCLA).
Additional Insured
Montgomery County, Maryland, its elected and appointed officials, officers, consultants, agents and
employees and Northeast Maryland Waste Disposal Authority must be included as an additional
insured on all liability policies for liability arising out of contractor’s products, goods and services
provided under this contract. The Additional Insured endorsements shall have no added exclusions
or limitations of coverage to limits of liability contractually required; or percentage of negligence
attributed to the named insured. The stipulated limits of coverage above shall not be construed as a
limitation of any potential liability to Customer and failure to request evidence of this insurance
shall in no way be construed as a waiver of Contractor’s obligation to provide the insurance
coverage specified.
Policy Cancellation
Should any of the above policies be cancelled before the expiration date thereof, written notice must
be delivered to the County in accordance with the policy provisions.
Deductible
Deductibles over $50,000 will require the approval of Montgomery County’s Risk Management
Division which may include submission of supporting documents for review.
Certificate Holders
Montgomery County, Maryland
Solid Waste / Dan Locke
16101 Frederick Rd
Derwood, MD 20855
Northeast Maryland Waste Disposal Authority
Tower II, Suite 402
100 S. Charles St.
Baltimore, MD 21201
Attn: Chris Skaggs
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CERTIFICATE OF INSURANCE REVIEW FORM
date:
PLEASE REVIEW THE FOLLOWING INFORMATION AND ATTACHMENTS TO THIS FORM FOR (CHECK ONE):
PRE-BID REQUIREMENTS
ATTACHMENTS: (CHECK AS APPROPRIATE)
CERTIFICATE OF INSURANCE
CONTRACT REQUIREMENTS
INSURANCE REQUIREMENTS SPECIFIED IN:
RFP
IFB
CONTRACT
AMENDMENT
RFP
IFB
CONTRACT
CONTRACT VALUE:
AMENDMENT
SPECIFICATIONS/SCOPE OF SERVICES OF THE:
RFP/IFB/CONTRACT #
NAME OF CONTRACTOR:
SERVICES PROVIDED:
Provide Acceptance And Transportation By Rail Of Ash Residue Generated At The Montgomery
County Resource Recovery Facility Located In Dickerson, MD To Its Permitted Processing Facility
For Recycling And/Or Beneficial Reuse In A Manner That Enables Recycling Credit To Be Given
To Montgomery County, Maryland In Accordance With Maryland Department Of The Environment
Recycling Guidelines And Regulations Through a Service Agreement with The Northeast Maryland
Waste Authority (on Behalf of the County)
AGENCY/DIVISION:
Department of Environmental Protection, Division of Solid Waste Services
CONTRACT MANAGER:
Peter Karasik
PROCUREMENT SPECIALIST:
PHONE #
FAX:
PHONE #
FAX: 7-9952
Comments:
THE ATTACHED SCOPE OF SERVICES REQUIRES
THE FOLLOWING INSURANCE COVERAGE:
REQUIREMENTS:
WORKERS’ COMPENSATION & EMPLOYERS
LIABILITY $1,000,000 / $5,000,000
COMMERCIAL GENERAL LIABILITY
$5,000,000
AUTOMOBILE LIABILITY
$5,000,000
ENVIRONMENTAL IMPAIRMENT LIABILITY
$10,000,000
ADDITIONAL INSURED
THE ATTACHED CERTIFICATE OF INSURANCE:
MEETS
REQUIREMENTS
DOES NOT MEET
REQUIREMENTS
RECOMMEND
WAIVER
NOTICE OF CANCELLATION PER POLICY
PROVISIONS
ALL RISK PROPERTY
PLEASE LIST THE REASON(S) FOR WAIVER, IF APPLICABLE, IN THE COMMENTS SECTION BELOW.
Comments:
____________________________________
____________
PREPARED/APPROVED: WINNIE JORDAN
date
INSURANCE SECTION, DIVISION OF RISK MANAGEMENT
***************************************************************************************************************************************
Based on Risk Management’s recommendation, I approve a waiver of the above checked items.
Approved by Contracting Officer, Procurement: __________________________________ DATE: _______________
RISK MANAGEMENT, PLEASE RETURN THIS FORM TO:
PMMD-62R
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Copy to Procurement
SCHEDULE VIII – Performance Bond Format
FORM OF PERFORMANCE BONDS
PERFORMANCE BOND
__________________________________
Principal
____________________________________________________________________________
Business Address of Principal
____________________________________________________________________________
Surety
a corporation of the State of ________________ and authorized to do business in the State of
Maryland.
Obligee:
Northeast Maryland Waste Disposal Authority and Montgomery County, Maryland
Penal Sum of Bond
(express in words and figures)
Date of Contract:
, 2015
Date Bond Executed:
, 2015
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The Agreement to provide Northeast Maryland Waste Disposal Authority and Montgomery
County [describe service].
Contract Number: _______________
KNOW ALL MEN BY THESE PRESENTS, That we, the Principal named above and Surety
named above, are held and firmly bound unto the Obligee named above in the Penal Sum of this
Performance Bond stated above, for the payment of which Penal Sum we bind ourselves, our heirs,
executors, administrators, personal representatives, successors, and assigns, jointly and severally,
firmly by these presents. However, where Surety is composed of corporations acting as
co-sureties, we, the co-sureties, bind ourselves, our successors and assigns, in such Penal Sum
jointly and severally as well as severally only for the purpose of allowing a joint action or actions
against any or all of us, and for all other purposes each co-surety binds itself, jointly and severally
with the Principal, for the payment of such sum as appears above its name below, but if no limit
of liability is indicated, the limit of such ability shall be the full amount of the Penal Sum.
WHEREAS, Principal has entered into or will enter into a contract with the Northeast Maryland
Waste Disposal Authority (the “Authority”), which contract is described and dated as shown
above, and incorporated herein by reference. The contract and all items incorporated into the
contract, together with any and all changes, extensions of time, alterations, modifications or
additions to the contract or to the work to be performed thereunder or any of them, or to any other
items incorporated into the contract shall hereinafter be referred to as “the Agreement.”
NOW, THEREFORE, during the term of said Agreement and any extensions thereto that may be
granted by the Authority, this Performance Bond shall remain in full force and effect unless and
until the following terms and conditions are met:
1.
Principal shall well and truly perform the Contract; and
2.
Principal and Surety shall comply with the terms and conditions in this Performance
Bond.
Whenever Principal shall be declared by the Authority to be in default under the Agreement, the
Surety may within fifteen (15) days after notice of default from the Authority notify the Authority
of its election to either promptly proceed to remedy the default or promptly proceed to complete
the contract in accordance with and subject to its terms and conditions. In the event the Surety
does not elect to exercise either of the above stated options, then the Authority thereupon shall
have the remaining contract work completed, Surety to remain liable hereunder for all expenses of
completion up to but not exceeding the penal sum stated above.
The Surety hereby stipulates and agrees that no change, extension of time, alteration or addition to
the terms of the Agreement or to the work to be performed thereunder or the Specifications
accompanying the same shall in any way affect its obligations on this Performance Bond, and it
does hereby waive notice of any such change, extension of time, alteration or addition to the terms
of the Agreement or to the work or to the Specifications.
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This Performance Bond shall be governed by and construed in accordance with the laws of the
State of Maryland and any reference herein to Principal or Surety in the singular shall include all
entities in the plural who or which are signatories under the Principal or Surety heading below.
IN WITNESS WHEREOF, Principal and Surety have set their hands and seals to this
Performance Bond. If any individual is a signatory under the Principal heading below, then each
such individual has signed below on his or her own behalf, has set forth below the name of the
firm, if any, in whose name he or she is doing business, and has set forth below his or her title as
a sole proprietor. If any partnership or joint venture is a signatory under the Principal heading
below, then all members of each such partnership or joint venture have signed below, each member
has set forth below his or her title as a general partner, limited partner, or member of joint venture,
whichever is applicable. If any corporation is a signatory under the Principal or Surety heading
below, then each such corporation has caused the following: the corporation’s name to be set forth
below, a duly authorized representative of the corporation to affix below the corporation’s seal and
to attach hereto a notarized corporate resolution or power of attorney authorizing such action, and
each such duly authorized representative to sign below and to set forth below his or her title as a
representative of the corporation. If any individual acts as a witness to any signature below, then
each such individual has signed below and has set forth below his or her title as a witness. All of
the above has been done as of the Date of Bond shown above.
In Presence of:
Individual Principal
As to
(SEAL)
Witness
In Presence of:
Witness
Partnership Principal
_____________________________ (SEAL)
Name of Partnership
______________________________ as to ______________________________ (SEAL)
______________________________ as to ______________________________ (SEAL)
______________________________ as to ______________________________ (SEAL)
--------------------------------------------------------------------------------------------------------------
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Corporate Principal
Attest:
__________________________________
(Name of Corporation)
________________________________ as to
Corporate Secretary
__________________________________
President
AFFIX
CORPORATE
SEAL
______________________________
(Surety)
Surety
Attest:
__________________________________
Signature
By:
_______________________________
Title: _______________________________
AFFIX
CORPORATE
SEAL
Business Address of Surety: _____________________________________
_____________________________________
_____________________________________
Bonding Agent’s name:
_____________________________________
Agent’s Address:
_____________________________________
_____________________________________
_____________________________________
Approved as to legal form and sufficiency this ______ day of _____________ 2015.
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SCHEDULE IX - Partial List of Applicable Rules and Regulations
Applicable Law includes, but is not limited to, the following laws and regulations promulgated
thereunder, permits, etc. The following rules and regulations are applicable at all Facilities except
for facility-specific permits which are only pertinent to the permitted facility:
1.
Solid Waste Disposal Act as amended by the Resource Conservation and Recovery
Act (RCRA).
2.
Federal Water Pollution Control Act (Clean Water Act)
3.
Comprehensive
(CERCLA)
4.
Clean Air Act
5.
Code of Maryland Regulations Title 26 Department of the Environment, Subtitle
04 Regulation of Water Supply, Sewage Disposal, and Solid Waste.
6.
Regulations promulgated by the Virginia Department of Environmental Quality.
7.
Resource Recovery Facility (RRF) Refuse Disposal Permit #2013-WTE-0538), as
amended and renewed, issued by the Maryland Department of the Environment.
8.
RRF air emissions permit Part B, 2(e), which references COMAR 26.11.06.08 and
26.11.06.09 which generally prohibit the discharge of emissions beyond the property line
in such a manner that a nuisance or air pollution is created.
9.
Environmental
Response,
Compensation,
and
Liability
Act
OSHA Rules and Regulations including bloodborne pathogens; respiratory, eye, hearing
protection; lead, arsenic, cadmium standards; etc.
10. Storm water management and sediment control permits.
11. Spill Prevention, Control, and Countermeasures requirements included in applicable
plans at all Facilities.
12. Montgomery County Code Noise Ordinance and the February 14, 1995 Final Decision
and Order by the Director, Department of Environmental Protection relating to the RRF.
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SCHEDULE X – Monthly Invoice Format
Either use the form below or another mutually agreed upon invoice form.
Date:
Invoice
#:
Processing Location:
Time Period (Month, Year):
Material
(Credit)
Tons*
Unit Charge
Total
Charge
Ash Residue
Service Fee Adjustments in accordance with Section 3.1(b) or 3.1(c)
TOTAL
*Fractions of tons equal or greater than 0.05 should be rounded up to the next highest one tenth
(0.1) ton. Fractions of tons less than 0.05 should be rounded down to the next lowest tenth (0.1)
of a ton.
Authority scale records showing Authority records of the weight of the Ash Residue will be
provided to the Contractor by the sixth day of the month. Weight tickets must be attached and
summarized.
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SCHEDULE XI – Guaranty
GUARANTY AGREEMENT
from
<COMPANY>
to
THE NORTHEAST MARYLAND WASTE DISPOSAL AUTHORITY
Dated
________, <YEAR>
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ARTICLE I
DEFINITIONS AND INTERPRETATION
SECTION 1.1. DEFINITIONS ................................................................................................................ A-2
SECTION 1.2. INTERPRETATION ....................................................................................................... A-2
ARTICLE II
REPRESENTATIONS AND WARRANTIES OF THE GUARANTOR
SECTION 2.1. REPRESENTATIONS AND WARRANTIES OF THE GUARANTOR ...................... A-4
ARTICLE III
GUARANTY COVENANTS
SECTION 3.1. GUARANTY TO THE AUTHORITY ........................................................................... A-5
SECTION 3.2. RIGHT OF AUTHORITY TO PROCEED AGAINST GUARANTOR ........................ A-5
SECTION 3.3. GUARANTY ABSOLUTE AND UNCONDITIONAL ................................................. A-6
SECTION 3.4. DEFENSES, SET-OFFS AND COUNTERCLAIMS .................................................... A-7
SECTION 3.5. WAIVERS BY THE GUARANTOR ............................................................................. A-8
SECTION 3.6. PAYMENT OF COSTS AND EXPENSES.................................................................... A-8
SECTION 3.7. SUBORDINATION OF RIGHTS .................................................................................. A-9
SECTION 3.8. SEPARATE OBLIGATIONS; REINSTATEMENT ...................................................... A-9
SECTION 3.9. TERM.............................................................................................................................. A-9
ARTICLE IV
GENERAL COVENANTS
SECTION 4.1. MAINTENANCE OF CORPORATE EXISTENCE ...................................................... A-9
SECTION 4.2. ASSIGNMENT ............................................................................................................. A-10
SECTION 4.3. QUALIFICATION IN MARYLAND ........................................................................ A-10
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SECTION 4.4. CONSENT TO JURISDICTION .................................................................................. A-10
SECTION 4.5. BINDING EFFECT ...................................................................................................... A-10
SECTION 4.6. AMENDMENTS, CHANGES AND MODIFICATIONS ............................................ A-10
SECTION 4.7. NOTICES ...................................................................................................................... A-10
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GUARANTY AGREEMENT
THIS GUARANTY AGREEMENT (this “Agreement”) is made and dated as of ________,
<YEAR>, by <COMPANY>, a limited liability company organized and existing under the laws
of <STATE> (together with any permitted successors and assigns hereunder, the “Guarantor”), in
favor of, and for the benefit of, the Northeast Maryland Waste Disposal Authority, a body politic
and corporate organized and existing under the laws of the State of Maryland (the “Authority”).
RECITALS
The Authority and <COMPANY> (the “Company”), a <STATE> limited liability company, have
entered into a <SERVICE AGREEMENT>, dated as of __________, <YEAR> (as may be
amended, supplemented or modified, the “<SERVICE AGREEMENT>”), relating to the
Company’s Transportation and Recycling Ash Residue from the <SITE COMMON NAME and
JURISDICTION> located at <ADDRESS> (the “Project”).
The Company is a subsidiary of the Guarantor.
A condition for the Authority entering into the <Service Agreement> is that the Guarantor
guarantees the performance by the Company of all of the Company’s responsibilities and
obligations under the <Service Agreement> as set forth in this Agreement.
In order to induce the execution and delivery of the <Service Agreement> by the Authority and in
consideration thereof, the Guarantor agrees as follows:
ARTICLE I
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 capitalized word or term used but not defined herein is used
as defined in the <Service Agreement>.
“Obligations” means the amounts payable by, and the covenants and agreements of, the Company
pursuant to the terms of the <Service Agreement>.
“Transaction Agreement” means any agreement entered into by the Company or the Authority in
connection with the transactions contemplated by the <Service Agreement>, including, but not
limited to, the <Service Agreement>, and any amendments, modifications or supplements thereto.
SECTION 1.2.
INTERPRETATION.
In this Guaranty, unless the context otherwise requires:
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(A)
References Hereto. The terms “hereby”, “hereof”, “herein”, “hereunder” and any similar
terms refer to this Guaranty, and the term “hereafter” means after, and the term “heretofore”
means before, 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.
(E)
Entire Agreement. 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, provided that the Authority and the Guarantor acknowledge and agree
that the County is an express third party beneficiary under this Guaranty and, as such, the
County has the right, but not the obligation, to enforce the rights, remedies, powers and
privileges of the Authority under 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 Maryland.
(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 Guarantor’s
liability 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 II
REPRESENTATIONS AND WARRANTIES OF THE GUARANTOR
SECTION 2.1.
REPRESENTATIONS AND WARRANTIES OF THE GUARANTOR.
The Guarantor hereby represents and warrants that:
(1)
Existence and Powers. The Guarantor is duly organized and validly existing as a
corporation under the laws of <STATE> with full legal right, power and authority to enter
into and perform its obligations under this Guaranty.
(2)
Due Authorization and Binding Obligation. The Guarantor has duly authorized the
execution and delivery of this Guaranty, and this Guaranty has been duly executed and
delivered by the Guarantor and constitutes the legal, valid and binding obligation of the
Guarantor, enforceable against the Guarantor in accordance with its terms except insofar
as such enforcement may be affected by bankruptcy, insolvency, or moratorium or by
general equity principals of reorganization and other similar laws affecting creditors’ rights
generally and general principals of equity.
(3)
No Conflict. Neither the execution or delivery by the Guarantor of this Guaranty nor the
performance by the Guarantor of its obligations hereunder (a) to the Guarantor’s
knowledge 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 material
breach of any term or condition of the Guarantor’s corporate charter or by-laws or any
judgment, decree, 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
such judgment, decree, agreement or instrument, or (c) to the Guarantor’s knowledge will
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 or by any
Transaction Agreement.
(4)
No Governmental Approval Required. No approval, authorization, order or consent of, or
declaration, registration or filing with, any governmental authority is required of the
Guarantor for the valid execution and delivery by the Guarantor of this Guaranty, except
such as shall have been duly obtained or made.
(5)
No Litigation. Except as disclosed in the Guarantor’s filings with the Securities and
Exchange Commission pursuant to the requirements of the Securities Exchange Act of
1934, as amended, there is no action, suit or other proceeding, at law or in equity, before
or by any court or governmental authority, pending or, to the Guarantor’s knowledge,
threatened against the Guarantor which has a likelihood of an unfavorable decision, ruling
or finding that would materially and adversely affect the validity or enforceability of this
Guaranty.
(6)
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
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performance by the Guarantor of this Guaranty and the transactions contemplated by this
Guaranty.
(7)
Consent to Agreements. The Guarantor is fully aware of the terms and conditions of the
<Service Agreement>.
(8)
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 will result in a material benefit to the Guarantor.
ARTICLE III
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 and the County (1) the full and prompt payment when
due of each and all of the payments required to be credited or made by the Company under the
<Service Agreement> to, or for the account of, the Authority, when the same shall become due
and payable pursuant to the <Service Agreement>, and (2) the full and prompt performance and
observance of each and all of the Obligations. Notwithstanding the foregoing or any other
provision of this Guaranty Agreement, in no event shall Guarantor’s liability to the Authority
hereunder exceed $<DOLLAR AMOUNT TBD> (“Limit of Guarantor’s Liability”).
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 Company to pay or
perform any Obligation guaranteed hereunder, the Authority shall have the right to proceed against
the Guarantor under this Guaranty, without first proceeding against the Company and without
exhausting any other remedies against the Company which the Authority may have. Subject to
and 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
Company 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 Company
other than providing the Company with any notice of such payment or performance as may be
required by the terms of the <Service Agreement> or required to be given to the Company 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
Company or to the enforcement of remedies under the <Service Agreement>. Upon any unexcused
failure by the Company in the payment or performance of any Obligation and the giving of such
notice or demand, if any, to the Company or Guarantor as may be required in connection with such
Obligation or this Guaranty, the liability of the Guarantor shall be effective and shall immediately
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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 Company shall have fully discharged the
Obligations in accordance with their respective terms, 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 Company, 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)
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 <Service
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;
(2)
any permitted transfer or assignment of rights or obligations under the <Service
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 Project or in, to or under any of the Transaction Agreements;
(3)
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 Project;
(4)
any renewal, amendment, change or modification in respect of any of the Obligations or
terms or conditions of any Transaction Agreement;
(5)
the voluntary or involuntary liquidation, dissolution, sale or other disposition of all or
substantially all the assets, marshalling of assets and liabilities, receivership, insolvency,
bankruptcy, assignment for the benefit of creditors, reorganization, moratorium,
arrangement, composition with creditors or readjustment of, or other similar proceedings
against, the Company 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 had 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);
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(6)
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 Company now or hereafter owned, directly or indirectly, by the
Guarantor or any Affiliate, or any change in composition of the interests in the Company;
(7)
any failure on the part of the Company for any reason to perform or comply with any
agreement with the Guarantor;
(8)
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 Company as a
condition to the enforcement of Obligations pursuant to the <Service Agreement>;
(9)
any failure of any party to the Transaction Agreements to mitigate damages resulting from
any default by the Company or the Guarantor under any Transaction Agreement;
(10)
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;
(11)
any legal disability or incapacity of any party to the Transaction Agreements; or
(12)
the fact that entering into any Transaction Agreement by the Company 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 (12) above, then, in any such case,
such money, together with all additional sums due hereunder, but only to the extent that the amount
of such money and additional sums, when added to amounts previously paid by Guarantor to the
Authority, do not exceed the Limit of Guarantor’s Liability, shall nevertheless be recoverable from
the Guarantor as though the Guarantor were principal obligor in place of the Company pursuant to
the terms of the <Service 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 Company’s rights, benefits, duties or obligations under the <Service
Agreement>. To the extent that any of the matters specified in subparagraphs (1) through (4) and
(6) through (12) would provide a defense to, release, discharge or otherwise affect the Company’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 Company may have under the <Service Agreement> or under Applicable Law (other
than bankruptcy or insolvency of the Company and other than any defense which the Company
has expressly waived in the <Service 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 Company is permitted to assert
pursuant to the <Service Agreement>, if any.
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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 that 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 Company required pursuant to the <Service 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 Company;
(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 Company) or
security,
(7)
any requirement that the Company 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 Company; and
(9)
all demands upon the Company 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, 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 reasonable costs and expenses, legal or
otherwise (including counsel fees), but only to the extent that the amount of such costs and
expenses, when added to amounts previously paid by Guarantor to the Authority, do not exceed
the Limit of Guarantor’s Liability, 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 costs and expenses that the Authority incurs
in performing any of its obligations under the <Service Agreement>, or other applicable
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Transaction Agreement, where such obligations are a condition to performance by the Company
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
Company 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 Company until
the Company 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 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 Company
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 <Service Agreement>, or any applicable Transaction Agreement, or
the Company’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 Company have been fully paid and performed or waived by the
Authority.
ARTICLE IV
GENERAL COVENANTS
SECTION 4.1.
(A)
MAINTENANCE OF CORPORATE EXISTENCE.
Consolidation, Merger, Sale or Transfer. The Guarantor covenants that during the term of
this Guaranty it will 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; 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 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 Maryland, and (b) delivers to the Authority an
opinion of counsel to the effect that its obligations under this Guaranty are legal, valid,
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binding and enforceable subject to applicable bankruptcy and similar insolvency or
moratorium laws, in the courts of the State.
(B)
Continuance of Obligations. If a consolidation, merger or sale or other transfer is made as
permitted by this Section 4.1, the provisions of this Section 4.1 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 4.1. 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 4.1.
SECTION 4.2.
ASSIGNMENT.
Without the prior written consent of the Authority, this Guaranty may not be assigned by the
Guarantor, except pursuant to Section 4.1 hereof.
SECTION 4.3.
QUALIFICATION IN MARYLAND.
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 Maryland.
SECTION 4.4.
CONSENT TO JURISDICTION.
The Guarantor irrevocably: (1) agrees that any Legal Proceeding arising out of this Guaranty shall
be brought in Montgomery County or federal courts in Montgomery County, Maryland having
appropriate jurisdiction; (2) consents to the jurisdiction of such court 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 of such courts; and (4) waives its right to a trial by jury in any Legal
Proceeding in any of 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 or modified or terminated and none of its provisions
may be waived, except with the prior written consent of the Authority and of the Guarantor.
SECTION 4.7.
NOTICES.
All notices, demands, requests and other communications hereunder shall be deemed sufficient
and properly given if in writing and delivered in person to the following addresses or sent by first
class mail and facsimile, to such addresses:
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(a)
If to the Guarantor:
<PRIMARY CONTACT>
With a copy to:
<COUNSEL>
(b)
If to the Authority:
Tower II, Suite 402
100 South Charles Street
Baltimore, MD 21201-2705
Attention: Executive Director
Phone: 410-333-2730, FAX: 410-333-2721
Email: authority@nmwda.org
With a copy to:
<COUNTY CONTACT>
Either party may, by like notice, designate further or different addresses to which subsequent
notices shall be sent. Any notice hereunder signed on behalf of the notifying party by a duly
authorized attorney at law shall be valid and effective to the same extent as if signed on behalf of
such party by a duly authorized officer or employee. Notices and communications shall be deemed
to have been given upon receipt.
[SIGNATURES APPEAR ON FOLLOWING PAGE]
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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:
SEAL
(IMPRESSED ON
EXECUTION COPIES)
Accepted and Agreed to by:
NORTHEAST MARYLAND WASTE DISPOSAL AUTHORITY
By:
Name:
Title:
48S
],
Attachment B
Cost Proposal
(Contractor’s Name)
Cost to Transport and Recycle Ash Residue from
the Montgomery County Resource Recovery Facility
Signature of Responsible Party
Title
Date
1B
$
per/ton
Attachment C
Proposal Checklist
1. Name of Proposer: ___________________________
2. Price Proposal Form:
YES
NO
3. Proposal Bond for $20,000: YES
NO
a. Name of Surety: ____________________________________________________
4. Description of Company
a. Name
b. Address
c. Organization Type
d. Contact Person
e. Years in Operation
f. Other names used by Company
g. Subsidiary information
h. Joint Venture
i. Disclosure
j. Subcontractors
YES
NO
5. Qualifications and References:
YES
NO
Similar Project # 1
Name: _________________________________________________________
Location: _______________________________________________________
Capacity: ____________________ Year Developed: ______________
Contact Person Name: _____________________________________________
Address /Phone:__________________________________________________
Involvement:_____________________________________________________
Similar Project # 2
Name: _________________________________________________________
Location: _______________________________________________________
Capacity: ____________________ Year Developed: ______________
Contact Person Name: _____________________________________________
Address /Phone:__________________________________________________
Involvement:_____________________________________________________
1C
Similar Project # 3
Name: _________________________________________________________
Location: _______________________________________________________
Capacity: ____________________ Year Developed: ______________
Contact Person Name: _____________________________________________
Address /Phone:__________________________________________________
Involvement:_____________________________________________________
6. Résumés of Key Personnel
YES
a. Project Manager
b. Contract Administrator
c. Finance Manager
d. Equipment Procurement and Installation
e. Construction Management
f. Operations
g. Maintenance
h. Records and Administration
NO
7. Description of Proposed Facility and Services
YES
a. Rail System
b. Container Loading
c. Processing Facility
d. Recycling or Beneficial Reuse after Processing
e. Guarantees on the Amount to be Recycled
f. Desired modifications to RRF
g. Disposal of Residuals
h. Contingencies
i. Backup Processing Facility
j. Processing Method
8. Financial Information:
YES
NO
9. Environmental Compliance:
YES
NO
NO
10. Performance Bond Letter:
YES
NO
a. Name of Surety: ____________________________________________________
2C
Attachment D
RRF Site Plan
1D