RESTATED OPERATION, MANAGEMENT AND LEASE AGREEMENT
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This Agreement ("Agreement") is made by and between CASELLA WASTE SYSTEMS,
INC., a foreign domestic corporation having its principal place of business at
Box 866, Rutland, Vermont 05702 ("Casella"), and CLINTON COUNTY, a New York
State Municipal Corporation, created under Article 9 of the New York State
Constitution, having a principal place of business at 137 Margaret Street,
County of Clinton, City of Plattsburgh, State of New York 12901 ("County").
WHEREAS, the County is the owner of certain facilities relative to the
collection and management of solid waste located within Clinton County, and
WHEREAS, the County did circulate a request for proposal (Exhibit "1") for
the operation, management or lease of those facilities, and
WHEREAS, the County has determined that the proposal submitted by Casella
best complies with the request for proposals and it is in the best interest of
the County to enter into a contract with Casella, and
WHEREAS, pursuant thereto the County and Casella did enter into an
Operation, Management and Lease Agreement on the 8th day of July, 1996, and
WHEREAS, the parties now desire to modify that Agreement to correct minor
errors in said Agreement and to conform the Agreement to newly discovered facts,
and
WHEREAS, said modifications are minor and more properly bring the Agreement
in conformity with the understandings of the parties.
NOW, THEREFORE, in consideration of the representations, warranties,
promises, covenants and agreements hereinafter contained and other good and
valuable consideration the receipt and sufficiency of which is hereby
acknowledged, the parties agree as follows:
1. DEFINITIONS
For the purpose of this Agreement the following words and phrases shall
have the following meanings:
1.01 "Acceptable Waste" - shall mean discarded putrescible and
non-putrescible waste including, without limitation, Special Waste, garbage,
refuse, trash, yard waste, C & D, and other discarded materials of the type
which are typically found in household, commercial or municipal refuse, whether
such materials are from residential, commercial, institutional, or industrial
sources, but shall not include Excluded Waste.
1.02 "Air Space" - means the existing or anticipated volume of Acceptable
Waste, that may be disposed in the Landfill, or any portion thereof.
1.03 "Annual Capacity" - shall mean the annual ability of the Lined
Landfill to accept at least 125,000 Tons of Acceptable Waste.
1.04 "Anticipated Capacities" - shall mean the anticipated capacity of the
Lined Landfill beyond Phase I, II, and III as set forth in Schedule "G", or as
it might be approved by the New York State Department of Environmental
Conservation.
1.05 "Approved Area" - shall mean the geographic area excluding that area
within the State of New York south of the County of Saratoga Springs.
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1.06 "Base Rate" - shall mean the rate charged for Approved Waste generated
within the County per ton as a Tipping Fee for a particular year prior to
adjustment. The initial Base Rate shall be $54.75 per ton.
1.07 "Closing" - means the consummation of the transaction through the
exchange of closing documents as described herein.
1.08 "Closing Date" - means 60 days after the later of the execution of the
original contract pursuant to the request for proposal and the obtaining of the
necessary legislative and SEQRA approvals in order to proceed to closing, or
such other time or date as the parties mutually agree upon in writing. Casella
and the County shall use their best efforts to close this transaction on the
Closing Date.
1.09 "Closure" - shall mean those acts and activities required by New York
State Environmental Conservation Law and the regulations adopted thereunder
which result in a permanent cessation of use of a municipal landfill, as those
requirements and regulations may be amended or modified, and which result in a
stabilized municipal landfill which is not in active use excluding those acts
and activities which are required for Post-Closure Care including monitoring,
reporting and maintenance for the periods set forth in the relevant
environmental statutes and regulations, as they may be amended or shortened as
the case might be.
1.10 "Consent Order" - shall mean the consent order with amendment through
the 24th day of March, 1996, entered into between the County and the New York
State Department of Environmental Conservation together with any succeeding
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amendments or modifications thereto related to the maintenance, existence and
operation of the Unlined Landfill, annexed hereto as Exhibit "2".
1.11 "Convenience Stations" - shall mean the existing convenience stations
utilized by the County being eleven (11) in number together with one (1)
transfer station all more particularly described in the schedule annexed as
Schedule "D". These convenience stations are utilized for the pick-up, receipt
and transportation of solid waste from residents of the County.
1.12 "CPI" - shall mean the Consumer Price Index for the region including
the City Of Plattsburgh as published by the United States Department of Labor
Bureau of Labor Statistics.
1.13 "Effective Date" - shall mean the date the original Agreement was
executed.
1.14 "Excluded Waste" - shall mean highly flammable substances, Hazardous
Waste, liquid wastes, certain pathological and biological wastes, explosives,
radioactive materials, oil, petroleum, municipal waste water sludge and
industrial sludge material, or any other waste excluded by an applicable
environmental law or regulation, or excluded by any of the terms and conditions
of any permits, licenses or approvals obtained with respect to the operation of
the Facilities. This term shall also include such other waste material which
Casella finds, in its sole discretion, to pose an unreasonable risk or danger to
the operation or safety of the Facilities or the environment.
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1.15 "Facilities" - shall mean the Landfill, Personal Property, Convenience
Stations, Recycling Program presently operated, to be construed, utilized or
owned by the County in the handling of solid waste and recyclables, intended to
be all personal, real, and intangible property subject of this agreement.
1.16 "Force Majeure" - shall mean any act, event or condition affecting the
facilities or the parties to the extent that it materially and adversely affects
the ability of either party to perform or comply with any obligation, duty or
agreement required of the party under this Agreement, the Host Agreement or the
Labor Utilization Agreement, if such act, event, or condition is beyond the
reasonable control of a party or its agents relying thereon and is not the
result of the willful or negligent action, inaction or fault of the party
relying thereon. Including, without limitation: (a) an act of God, epidemic,
landslide, lightening, earthquake, fire, explosion, storm, flood or similar
occurrence; (b) an act of public enemy, war, blockage, insurrection, riot,
general arrest or restraint of government and people, civil disturbance or
disobedience, sabotage or similar occurrence, interference by third parties with
any solid waste disposal operations or any other duties of Casella, or the
County; (c) a strike, work slowdown, or similar industrial or labor action; (d)
an order or judgment (including, without limitation, a temporary restraining
order, temporary injunction, permanent injunction, or cease and desist order) or
other act of any federal, state, county or local court, administrative agency or
governmental office or body, including without limitation, such an order or
judgment which limits the duration of this Agreement to less than 25 years plus
extensions; (e) the denial, loss, suspension,
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expiration, termination or failure of renewal of any permit, license or other
governmental approval required to operate the Facilities which does not result
from any negligent or willful act or omission of the party; (f) adoption or
change (including a change in interpretation or enforcement) of any federal,
state, county or local law, rule, permit, regulation or ordinance after the
effective date applicable to the parties or the Facilities, adversely affecting
any obligations hereunder, including, without limitation, such changes which
have an adverse effect on the cost of development, construction, operation or
maintenance of the Facilities; (g) the institution of a legal or administrative
action, or similar proceeding, by any person, firm, corporation, agency or other
entity which delays or prevents any aspect of the development or operation of
the Facilities, including, without limitation, comments on or challenges to the
consideration or issuance of any permit, license or other approval required to
construct or operate the Facilities; or (h) if Casella is for any reason (other
than any reason resulting from its negligent or willful act or omission) delayed
or barred by governmental or judicial action from collecting all or any part of
the fees to be paid under this Agreement, as may be from time to time adjusted,
and any other payments that may become due and owing.
1.17 "Hazardous Waste" - shall mean any pollutant, contaminant, chemical,
industrial, toxic or other waste that constitutes hazardous waste as defined
pursuant to the Resource Conservation and Recovery Act, 42 U.S.C. ss. 9601 et.
seq, or the New York State Environmental Conservation Law, Article 27, ss.
27-1301(1), or the regulations adopted thereunder.
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1.18 "Host Agreement" - shall mean the agreement intended to be executed
simultaneously herewith by and between Casella and the County and the Town of
Schuyler Falls relative to the obligations of Casella, the County, and the Town
of Schuyler Falls relative to the ongoing deposit of waste at the Landfill and
the fees paid therefrom and all more particularly described in said agreement,
annexed as Exhibit "4".
1.19 "Host Fee" - shall mean a payment paid to the County and the Town of
Schuyler Falls for solid waste disposed of or at the Landfill, partially in lieu
of all town, county and school taxes and more particularly described in the Host
Agreement.
1.20 "Identified Personal Property" - shall mean that Personal Property
that has been specifically identified on Schedule M.
1.21 "Labor Adjustment" - shall mean an adjustment to the Tipping Fee made
by virtue of the provisions of the Labor Utilization Agreement.
1.22 "Labor Agreement" - shall mean the agreement by and between the County
and the CSEA relative to the employees of the County effected by this Agreement
and annexed hereto as Exhibit "5".
1.23 "Landfill" - means all of the County's assets and properties used or
held for use by the County in connection with the Clinton County Landfill,
including land, buildings, appurtenances, office furniture, equipment and
fixtures, the full benefit of all utility arrangements, licenses and permits,
including rights of assignment to the
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extent any such licenses and permits may be assignable and all other rights,
assets and interests all as used in connection with the Clinton County Landfill.
1.24 "Lease Payments" - shall mean the consideration that Casella will pay
the County for the lease of the Facilities, exclusive of the Unlined Landfill
which is subject to the operating portion of this Agreement and not the lease.
1.25 "Lined Landfill" - shall mean that portion of the Landfill, excluding
the Unlined Landfill, which includes existing partially constructed lined
capacity and projected lined Air Space capacity of approximately 1.804 million
cubic yards and the Anticipated Capacities, all encompassing 160 acres together
with the full benefit of all utility arrangements, licenses and permits, to the
extent any such licenses and permits may be assignable and all other rights,
assets and interests all as used in connection with the Lined Landfill more
particularly described in Schedule "B".
1.26 "Option Payment" - shall mean the payment to be made to the County in
the event that this Agreement is extended for a term of 25 years which payment
shall be in the amount of $1,000,000.00 (One Million).
1.27 "Personal Property" - means all of the personal property used or held
for use by the County in connection with the operation of the Landfill,
Recycling Program and the Convenience Stations together with certain delineated
equipment related thereto, exclusive of real property. The Personal Property is
intended to be all personal property and interests related thereto subject of
this Agreement including the Identified Personal Property and is more
particularly described in Schedule "E" annexed hereto, excluding, however, the
following: water truck, County radio
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communication system, messenger pick up truck and four personal computers with
printers, all which shall be retained by the County. (See Schedule N).
1.28 "Phase I" - shall mean that portion of the Lined Landfill which is
partially constructed and consists of 6.1 acres containing 3 lined cells having
a total Air Space capacity of approximately 521,000 cubic yards.
1.29 "Phase II" - shall mean that portion of the Lined Landfill which is
intended to be constructed second and consists of 6.4 acres containing 2 lined
cells having a total Air Space capacity of approximately 547,000 cubic yards.
1.30 "Phase III" - shall mean that portion of the Lined Landfill which is
intended to be constructed third and consists of 9.2 acres containing 3 lined
cells having a total Air Space capacity of approximately 735,000 cubic yards.
1.31 "Post Closure Care" - shall include those acts and activities which
are required for post-closure care including monitoring, reporting and
maintenance for the time set forth in the relevant environmental statutes and
regulations, as they may be amended or shortened as the case might be.
1.32 "Property" - shall mean any parcels of real property located in the
County on which the Facilities are located, exclusive of the Unlined Landfill,
more particularly described in the annexed Schedule "F".
1.33 "Recycling Payment" - shall mean payments due to the County from
Casella through the operation of the Recycling Program.
1.34 "Recycling Program" - shall mean all of the equipment and buildings
associated with the County's existing recycling program more particularly
described
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in the schedule annexed as Schedule "C", together with the program as it may be
amended.
1.35 "Special Waste" - shall mean any discarded waste material other than
those which are typically found in household, commercial or municipal refuse,
including, without limitation, materials such as industrial waste, institutional
waste, animal manure, petroleum contaminated soil of a nonhazardous nature,
residue from incineration, food processing wastes, dredging wastes, tires and
asbestos, or waste which requires special or exceptional handling or approval
from DEC, but shall not include Excluded Waste.
1.36 "Tipping Fee" - shall mean the tipping fees established for the
disposal of a single Ton of Acceptable Waste at the Facilities paid to, and
retained by Casella, in accordance with paragraph 10 herein.
1.37 "Ton(s)" - shall mean 2000 pounds.
1.38 "Unlined Landfill" - means that portion of the Clinton County Landfill
which has been operated by the County as an unlined landfill which consists of
the areas within the Landfill that is utilized as an unlined landfill plus an
additional 100 foot buffer zone and which is intended to be subject to the
operating provisions of this Agreement together with the full benefit of all
utility arrangements, licenses and permits, and all other rights, assets and
interests all as used in connection with the Unlined Landfill more particularly
described in Schedule "A".
1.39 "Labor Utilization Agreement" - shall mean the agreement intended to
be executed simultaneously herewith by and between Casella and the County
relative
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to the utilization of labor at the Facilities and adjustments made thereto and
all more particularly described in said agreement, annexed as Exhibit "3".
2. LEASE PAYMENT
The County hereby leases to Casella the Facilities, excluding the Unlined
Landfill, to Casella for a term of twenty-five (25) years commencing on the
Closing Date on the terms and conditions as more fully set forth as follows:
Casella shall pay to the County the sum of $10,501,284.00 (Ten million,
five hundred and one thousand, two hundred and eighty four), payable in
accordance with Schedule "H", for a period of seven (7) years from the date of
the first payment for a total of 28 payments. The obligation of Casella to make
Lease Payments shall be suspended on July 1, 1997 in the event that the County
has failed to complete construction of Phase I and has not supplied Casella with
all necessary permits and authorities for Casella to operate Phase I at the
Annual Capacity by that date. Casella shall resume Lease Payments in accordance
with the schedule above referenced after construction has been completed and all
permits and authorities have been supplied, provided, however, that Casella
shall have no obligation to remit, without effecting the total amount due, any
payments that would have been due during the suspension period.
3. HOST FEE
Casella will pay the sum of $2.50 for each ton of Acceptable Waste disposed
of at the Landfill. Payment shall be made to the parties to the Host Agreement
at the
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same time, same manner and subject to the adjustments as specified in the Host
Agreement.
4. PURCHASE OPTION
Casella may, during the term of this Agreement or any renewals hereof,
elect to purchase the Lined Landfill, Personal Property, Recycling Program,
Property and Convenience Stations subject to the necessary County approval of
the same. In the event, that the County approves such purchase option, the Lease
Payments, upon the closing of title, shall cease and there shall be an
acceleration of the unpaid Lease Payments and the County shall be paid at
closing a purchase price equal to the unpaid Lease Payments calculated by
referring to the annexed Schedule "H". In the event that the purchase option is
exercised and approved after all Lease Payments have been made, and only in that
event, the purchase price shall be equal to a sum equal to the last two years
Recycling Payment which sum shall represent an acceleration of monies due for
the succeeding two years of this Agreement following sale, for which Casella
shall be given credit against future monies due. No Recycling Payment shall be
due from Casella for the following two (2) years following the closing of the
purchase. There shall be an adjustment made with respect to the credit for the
amount paid to the County versus the actual amount due the County for the two
year period for which acceleration has been made. Casella shall at the
conclusion of the two years remit to the County any additional sums that might
be due based on the actual Recycling Payment or, should money be due Casella,
Casella shall be entitled to a credit against the third year or years for the
amount overpaid.
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A. PROPERTY
The Property to be conveyed to Casella shall be conveyed by Bargain and
Sale Deed with covenants and in proper statutory form for recording, being
clear of all liens and encumbrances, subject, however, to the following:
1. Provisions of existing building, zoning land use, subdivision and
environmental laws and regulations whether imposed by federal, state
or municipal or other governmental units or authority;
2. Rights of the public and others in respect to streets and ways
abutting and laying within or between parcels.
3. All rights of way, plans, easements, conditions, restrictions,
covenants, liens or claims of record.
B. PERMITS
All permits for the utilization of the Facilities as may be required, which
allow use of the Facilities in the manner and at the capacities set forth
herein, shall be transferred to Casella by the County to the extent
permitted by applicable law and shall be a condition of closing.
C. PERSONAL PROPERTY
All Personal Property shall be transferred free and clear of all liens and
encumbrances in "as is" condition. In the event that specific personal
property has been substituted, in accordance with the procedures set forth
in paragraph 5 herein, such substituted or upgraded personal
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property shall be transferred provided, however, that no additional
payments shall be required from Casella.
D. OBLIGATION TO PURCHASE
Casella's obligation to close the purchase under this Agreement is
conditioned upon the following:
1. The issuance to Casella prior to closing, of those permits or licenses
as may be required in Casella's sole opinion to operate the Landfill
at the capacities set forth herein; or
2. The receipt prior to closing of preliminary authorization, to
Casella's satisfaction, by all governmental authorities having
jurisdiction to permit Casella to operate in the matter desired; and
3. The receipt from Casella of those assurances that might be necessary
in the discretion of Casella's counsel, which would allow Casella's
counsel to issue an opinion letter to Casella that there is no state
of facts which would impair, restrain or prohibit the consummation of
the transactions contemplated hereby or which might, in Casella's
counsel's reasonable judgment, materially impair value; and
4. Receipt by Casella of the necessary Bills of Sale, Assignments, Deeds,
and other instruments of transfer, conveyance, and assignment in
accordance with the provisions hereof, transferring
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to Casella all of the County's right, title and interest in the
Facilities other than the Unlined Landfill, free and clear of all
mortgages, liens, encumbrances, pledges, equities, claims and
obligations to other persons or parties, of whatever kind and
character and allowing, to the extent applicable, the issuance by a
New York state title insurance company title, insurance guaranteeing
marketable title.
E. NONMERGER
The closing of the purchase shall only result in a merger of those
provisions of this Agreement which are relevant to the transfer, and shall
not work a termination of this Agreement beyond that necessary for the
closing, termination of the lease, and transfer of ownership.
5. PERSONAL PROPERTY
The Lease Payment shall include payments for the utilization of the
Personal Property by Casella. Casella may utilize the Identified Personal
Property at the Facilities or such other location as Casella in its sole
discretion deems appropriate, provided, however, that if any of the Identified
Personal Property are utilized in a location other than the Facilities, Casella
shall promptly notify the County of the location of the Identified Personal
Property. Casella may utilize the balance of the Personal Property at any of the
Facilities in its sole discretion as it deems appropriate. Although it is the
intent of the parties that the Personal Property, other than the
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Identified Personal Property, be used for the purposes covered by this
Agreement, Casella may use the Personal Property, other than the Identified
Personal Property, outside of Clinton County for purposes outside the scope of
the Agreement with the consent of the County, which consent may not be
unreasonably withheld. Title to the Personal Property shall remain with the
County, subject, however, to the provisions herein, absent a closing under the
purchase option at which time the title to the Personal Property will be
transferred to Casella.
It is agreed by the County and Casella that the Personal Property have a
useful life based on the date of purchase of the particular personal property.
The agreed upon useful life of each personal property is set forth in Schedule
"I". In consideration for the maintenance of the Personal Property by Casella
for the balance of the term of its useful life, the County agrees that upon the
end of the agreed upon useful life for each of the personal property, the County
will abandon its interest in the particular personal property to Casella for
payment by Casella equal to the scrap value of the particular personal property
which the parties agree shall be 1% of the value of the Personal Property as set
forth in Schedule "J".
Casella may at any time during the useful life of a personal property,
request that the County upgrade or replace the personal property in order to
ensure a more efficient operation of the Landfill, the Recycling Program, or the
Convenience Stations. In the event Casella so requests the County, the County
shall, in accordance with public acquisition requirements, acquire replacement
equipment in accordance with the specifications submitted by Casella. The
personal property for which the
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upgrade is sought shall be declared surplus by the County and shall be sold or
traded in accordance with the procedures set forth in law and the sum realized
from said sale shall be utilized, in whole or in part, to pay for the newly
acquired personal property. In the event there is a shortfall between the monies
realized from the auction sale and the acquisition price of the newly acquired
personal property, Casella shall, after receiving delivery of the replacement
personal property, remit to the County on the next Payment Date, as an
additional Lease Payment the difference between the realized auction price and
the acquisition price for the newly acquired personal property. In the event of
an early termination of this agreement, the proportionate useful life remaining
of the newly acquired equipment shall be multiplied times the amount paid by
Casella which shall be a credit to Casella. This payment by Casella shall be
considered in full satisfaction of that portion of Casella's lease obligations
under this Agreement for the newly acquired personal property, and the newly
acquired personal property shall be added to this Agreement and to the schedules
contained on Schedules "E" and "J", a useful life shall be established and added
to Schedule "I", and thereafter the personal property shall be subject to the
terms of this Agreement.
Alternatively, Casella may also at any time decide that a personal property
is surplus and not necessary to the operations of the Landfill. In the event
that Casella makes such determination, it shall inform the County in writing and
within thirty (30) days the County will advise Casella whether the County agrees
with that determination. In the event that the County so agrees, the personal
property shall be
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auctioned off by the County pursuant to the procedures previously set forth, and
the amount realized at said auction shall be credited to Casella against any
payments due the County under this Agreement. In the event that the County
disagrees with Casella's determination that the personal property is surplus,
the County shall, within the time specified, inform Casella and shall assume
control of the personal property. Casella and the County shall thereafter
mutually select an appraiser, or in the event that mutual agreement cannot be
had, each shall mutually select an appraiser which appraisers shall select a
third appraiser, and an appraisal of the personal property shall be made.
Casella shall be entitled to a credit against any payment under this Agreement
for the value of the personal property determined by the above-referenced
procedures. The personal property declared surplus shall be deleted from
Schedules "E", "I" and "J" and shall no longer be subject to the terms of this
Agreement.
6. ALLOCATIONS
The payments under this Agreement shall be allocated as follows:
(i) Long-term real estate lease 63%.
(ii) Good will 17%.
(iii) Equipment 20%.
In the event that a closing should take place pursuant to the Purchase
Option contained herein, the above percentages shall be utilized provided,
however, that in the event, prior to the closing that payments have been
adjusted by reason of
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personal property having been declared surplus, a percentage adjustment shall be
made to reflect that event.
7. RECYCLING PROGRAM
Casella shall operate at the County's existing sites a recycling program,
which shall be generally modeled after its existing program in the State of
Vermont, for material generated from the existing convenience stations servicing
County residents. It is intended that the recycling program be comprehensive to
the extent economically feasible. Casella shall be responsible for the marketing
of all the recycled material and retain the recycling revenue as an offset of
its operational costs associated therewith.
8. RECYCLING REVENUE
With respect to the material generated through the recycling program, the
County Legislature shall set, by either local law or resolution, the "per bag"
disposal rates at the convenience stations. The present disposal rate is $1.00
per 15 gallon bag. Based on that rate, Casella agrees to pay to the County the
Recycling Payment in the sum of $50,000 per year, payable on January 15th of the
succeeding year, with the first year to be apportioned. Subject to, and
conditioned on, legislative approval, the County agrees to increase the disposal
rate to $1.25 per bag for the period April 1, 1997 though March 31, 1998 and
$1.50 for the period April 1, 1998 through March 31, 1999. Based on, and subject
to, those timely enactments, Casella agrees to pay the County the Recycling
Payment in the manner set forth herein as follows:
$1.25 per 15 gallon bag $125,000.00 per year
$1.50 per 15 gallon bag $200,000.00 per year
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After April 1, 1999 Casella shall be entitled to set the per bag rate at an
amount per convenience station which, on an annual basis, will equal the
previous year's costs for operating the convenience station plus the then
present cost of disposal including transportation, but in no event less than
$1.50 per bag. The County will, subject to legislative approval, enact whatever
local legislation is necessary to effectuate the rates. In the event that the
County fails to set a rate, as above referenced, which covers Casella's costs,
the disposal costs, and the cost of marketing the recyclables then, in that
event, Casella shall have a right to close the convenience station.
9. CONVENIENCE STATIONS
The Lease Payments hereunder encompass payment for the Convenience Stations
containing the real and personal property delineated on Schedule "D". Until
April 1, 1999 Casella shall be responsible for operating the convenience
stations at the same approximate level as is presently operated by the County.
Casella, after April 1, 1999 may modify the hours of operation of the
convenience stations in its sole discretion, provided, however, that the total
hours of operation for all the convenience stations, in total, shall not be
reduced to less than 80% of the existing total operational hours, subject,
however, to the provisions of paragraph 8 above which allows Casella to
terminate certain operations, which terminations, if any, shall not be factored
in the percentage of service required under this paragraph. The parties
recognize that certain Convenience Stations are not on County property. The
County agrees to hold harmless and indemnify Casella from any loss, claim or
expense associated with a third-party assertion of contrary or superior rights.
Casella
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shall have the option, in the event that the County is not able to obtain legal
or leasehold title in a reasonable period of time to close these Convenience
Stations which shall not be included for purposes of the percentage calculations
noted above. Casella shall collect at the convenience stations such bags as may
be left by County residents and shall charge the specified rate per bag as is
either set forth pursuant to this Agreement or may be set by the County. Casella
shall keep accurate and complete records, subject to audit, of bags collected
and monies collected. Its records shall be available for County inspection upon
reasonable notice.
10. TIPPING FEE
The Tipping Fee for Acceptable Waste accepted for disposal at the Landfill
generated by the County, its residents or private haulers, shall be the Base
Rate for a period of 10 years from the date of this Agreement, plus adjustments.
The initial Base Rate shall be $54.75. Adjustments, during this 10 year period,
shall be made in the Base Rate in the event the CPI increases any calendar year
in excess of five (5%) percent. In the event the CPI increases beyond five (5%)
percent for a calendar year, the amount of said increase above five (5%) percent
shall be multiplied times the previous year's Base Rate and then added to it,
which shall then become the new Base Rate for the calendar year commencing on
that following January 1.
The Tipping Fee for each year of the second ten years, shall be calculated
by taking the Base Rate for the previous year and making an annual adjustment of
seventy-five (75%) percent of the CPI increase for the previous year multiplied
times
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the previous Base Rate, which shall be added to the previous Base Rate, and
become the new Base Rate for the calendar year commencing on the following
January 1.
The Tipping Fee for each year of the last five years of the original term
of this Agreement, shall be calculated by taking the Base Rate for the previous
year and making an annual adjustment of one hundred (100%) percent of the CPI
increase for the previous year multiplied times the previous Base Rate, which
shall be added to the previous Base Rate, and become the new Base Rate for the
calendar year commencing on the following January 1.
The Tipping Fee shall not be governed by the terms of this Agreement, or as
it might be extended, after the expiration of twenty (25) years from the
Effective Date.
In addition, there shall be the Labor Adjustment to the Base Rate as
required by the provisions of the Labor Utilization Agreement.
11. OPERATING AGREEMENT/UNLINED LANDFILL
Casella and the County agree that from and after the Effective Date,
Casella shall operate for the County, and shall have full physical and
managerial control subject to the Labor Utilization Agreement, of the Unlined
Landfill, which Unlined Landfill shall not be subject to lease. The operation of
the Unlined Landfill shall, in addition to what is hereinafter set forth, be
subject to the same provisions as the Lined Landfill as set forth in
subparagraphs 13 (A)(1)(c); (B); (D)(2), (5), (6), (7); (E); (F); and (G);
herein.
Page 22 - September 5, 1996
A. Indemnification
The County agrees to hold and save harmless Casella from any damage or
claim resulting from the disposal of solid waste of any sort arising prior to
Casella's assuming operational control of the Unlined Landfill, whether such
liability arises by the operation of law or out of a wrongful act or neglect of
the County or otherwise. In the event that Casella shall sustain damage or be
forced to defend a lawsuit or claim, the County shall hold harmless and
indemnify Casella to the extent of any losses, costs or liabilities incurred,
including without limitation, fines, penalties, disbursements or attorney fees.
B. Permit
The County warrants and covenants that the Unlined Landfill has all
necessary permits and Air Space to accept additional Acceptable Waste from
outside of Clinton County in the amount of 60,000 Tons. The County further
warrants and covenants that as of the date Casella assumed operational control
of the Unlined Landfill, there was an usable Air Space capacity of 120,000 Tons.
The County warrants and covenants that such Air Space shall be available for the
disposal of Acceptable Waste by Casella and that the Unlined Landfill will be
able to utilize that Air Space, continuously, until at least June 15, 1997.
Based on these covenants, Casella covenants to reserve 60,000 Tons of Air Space
for use for County generated Acceptable Waste. The County shall retain
responsibility for permitting, closure design, and related inspection services
at its sole cost for the closure of the Unlined Landfill.
Page 23 - September 5, 1996
C. Closure
Casella agrees, upon exhaustion of the Air Space of the Unlined
Landfill as set forth above, to perform Closure of that landfill in accordance
with the regulations of the New York State Department of Environmental
Conservation and the consent order entered into by the County (Exhibit "2") at
its sole cost subject to the responsibilities of the County described in
subparagraphs "I", "J" and "K" below. Casella's obligation to perform the
Closure is subject to the following condition precedents:
1. the availability of Air Space set forth in subparagraph 11 (B)
above, both as to general capacity and as to the availability for
out of county waste; and
2. the granting of permits and authorities, as well as the
completion of construction, for the operation and leasing of the
Lined Landfill by Casella; and
3. the ability of Casella to utilize the Unlined Landfill's
specified Air Space, continuously, until at least June 15, 1997;
and
4. the repeal of the local laws, etc, set forth in subparagraph
11(E) below.
In the event the above referenced condition precedents are not satisfied in
full, Casella shall have no obligation to conduct Closure, which responsibility
shall be that of the County. Casella's sole obligation shall be to remit to the
County an amount equal to $15.00 per ton for each Ton of Acceptable Waste
accepted at the Unlined
Page 24 - September 5, 1996
Landfill, subject to any reduction for removed Excluded Waste, which monies
shall be the limit of Casella's obligation as to Closure, which sum shall be
further adjusted to credit Casella for Lease Payments already made.
D. Acceptable Waste
Casella agrees that during the term of its operation it shall only
accept at the Unlined Landfill Acceptable Waste. Casella shall keep records of
all transporters bringing waste into the Unlined Landfill, the date the waste
was brought in and Casella shall further visually inspect the waste to ensure
that it is acceptable and in accordance with the Consent Order. The County shall
have the right to visually inspect all waste as it is brought in to the
Facility. Casella shall cooperate with the County to encourage the County to
exercise that right. Whether the County exercises that right or elects not to
exercise that right, it shall be presumed, absent substantial evidence to the
contrary, that in the event Excluded Waste was deposited, it was done during the
County's control of the Unlined Landfill, thus, subjecting the County to the
provisions of subparagraph "A" above.
E. Waste Control Ordinances or Local Laws
The County has enacted certain ordinances, previous to this date,
which restricts or limits the flow of waste to the Unlined Landfill. The County
agrees, subject to legislative approval and the limitations of law, within
forty-five (45) days to repeal such ordinances or local laws. The County further
agrees to apply and seek for lead agency status under SEQRA relative to the
lease of the Lined Landfill. Nothing herein shall require the Town of Schuyler
Falls or the County to repeal their
Page 25 - September 5, 1996
local ordinances prohibiting the placement of municipal waste water sludge or
industrial sludge.
F. Subdivision
The County agrees to subdivide the Landfill so that the Unlined
Landfill and Lined Landfill are on approved separated parcels of property. The
cost of the survey shall be that of Casella. It is intended that subdivision
shall occur prior to the commencement of operation of the Lined Landfill.
G. Ownership
Ownership of the Unlined Landfill shall remain at all times with the
County. In the event that the purchase option is elected by Casella and approved
by the County, ownership of the Unlined Landfill shall not be transferred
pursuant to that Purchase Option, but shall remain with the County.
H. In Ground Separation Costs
There is presently emanating from the Unlined Landfill certain ground
water contamination which will require the creation of an impervious in ground
separation wall and ancillary construction to contain the migration. Costs
associated with such in ground separation construction shall be that of the
County and shall not be considered a closure cost. The costs, however, will be
advanced by Casella and the construction shall be done by Casella ancillary to
the Closure. In the event that Casella receives a permit by the New York State
Department of Environmental Conservation together with all local approvals for
Phase II and III at their Anticipated Capacities and Annual Capacity within five
(5) years of the date of this Agreement,
Page 26 - September 5, 1996
and in the event that the County has cooperated with Casella in the obtaining of
such approvals then, in that event, Casella agrees to absorb the cost of the in
ground separation construction that was performed at or about the time of
Closure. In the event that Phase II and III approvals are not received within
the time specified or the County has failed to cooperate in obtaining those
Phase II and III approvals, the costs of the in ground separation system shall
be a credit to Casella which may be utilized against future payments due the
County under the terms of this Agreement or shall be paid by the County should
no monies be due. Payment or credit shall be immediately due, or credit applied,
in the event of an early termination of this Agreement. In the event there is a
dispute as to the size of the credit, the fair market value of the services
performed plus interest from the date of completion, which shall be the value of
the credit, shall be determined by taking the average of three arms lengths
appraisals from experienced, reputable firms solicited pursuant to public notice
with the cost of the appraisals to be equally shared by the parties.
I. Post Closure Care
The County is responsible for Post Closure Care of the Unlined
Landfill. The County may, by separate agreement, contract with Casella for this
service. In the event the County chooses to so contract for the Unlined Landfill
or for its existing landfills in Mooers and Ausable, Casella agrees to charge
the County its own actual direct costs for this service plus a percentage of 5%
representing Casella's indirect costs.
Page 27 - September 5, 1996
J. County Closure Responsibilities
The County shall be responsible for the following, which in no event
shall be Casella's responsibility:
1) Permitting and all issues and costs related thereto; and
2) Closure design and all issues and costs related thereto; and
3) Inspection and testing services, whether surface or subsurface,
and all issued and costs related thereto.
K. Personal Property
Casella shall have the right to use all necessary Personal Property
for the operation of the Unlined Landfill, and shall have responsibility to
maintain the same. Nothing herein shall limit the right of Casella to use its
own personal property at the Unlined Landfill, which right shall be
unrestricted.
L. Use and Compliance With Law
The Unlined Landfill shall be kept by Casella in substantial order and
repair outside and inside at its sole cost and expense, other than for
pre-existing conditions, and Casella shall comply with all orders, regulations,
rules and requirements of every kind and nature, now and hereinafter in effect,
of the federal, state, municipal or other governmental authorities having the
power to enact, adopt, impose or require the same whether they be usual or
unusual, ordinary or extraordinary or whether they or any of them relate to
environmental requirements or otherwise, provided they are related to Casella's
operations, and Casella shall pay all costs and expenses incidental to such
compliance and shall indemnify and hold
Page 28 - September 5, 1996
harmless the County from all expense and damages by reason of any notices,
orders, violations or penalties filed against or imposed upon the Unlined
Landfill or against the County as owner thereof because of the failure of
Casella to comply with this covenant provided, however, that nothing herein
shall effect or limit the responsibility of the County relative to the Unlined
Landfill as to pre-existing conditions.
Casella shall have the right, at its own cost and expense, to contest or
review by legal proceedings the validity or legality of any law, order,
ordinance, rule, regulation, direction, or certificate of occupancy and during
such contest Casella may refrain from complying therewith provided that Casella
will not be subjected to criminal prosecution thereby and, that if requested to
do by the County, Casella shall furnish to the County a bond in form and amount
reasonably satisfactory to the County guaranteeing to the County compliance by
Casella such law, order, ordinance, rule or regulation, if required.
12. COOPERATION
It is the intention of the parties that the Lined Landfill be permitted to
the capacity set forth for Phases I, II and III and the Anticipated Capacities.
It shall be the responsibility of the County, within twelve (12) months from the
date of this Agreement, to obtain all permissions and approvals that might be
necessary from local governmental entities or bodies which have legal
jurisdiction over the Lined Landfill including, but without limitation, zoning
approval and the granting of any special permits that might be necessary, until
no further approvals or permissions are
Page 29 - September 5, 1996
necessary from any local governmental agency or body, in order that Phase I, II
and III may proceed for use as a municipal landfill at the specified capacities,
Annual Capacity and, to the extent possible, the Anticipated Capacities.
Casella shall cooperate with the County in obtaining these approvals.
Obtaining local approvals shall be the County's responsibility and obligation.
The County shall, other than for Phase I which shall be totally the
County's responsibility, cooperate with Casella in obtaining regulatory approval
for the Lined Landfill at the capacity specified herein and shall undertake all
reasonable steps to accomplish the same provided, however, that it shall be
Casella's responsibility to prepare the permit application, conduct geologic and
engineering studies, and to pay any consultants that might be necessary in
relation to the same. The County shall execute at Casella's request, all
documents consistent with the purposes of this Restated Operation, Management
and Lease Agreement, and will further undertake to the extent not violative of
law any steps requiring local legislation or resolution in order to obtain
contemplated approvals.
The County hereby appoints Casella as its agent or, alternatively, grants
Casella a limited power of attorney (to the extent permissible by law) to file
documents, execute documents, submit permit applications, consult with the New
York State Department of Environmental Conservation, represent the County in
front of the Department of Environmental Conservation, represent the County at
any public hearings that might be necessary relative to the obtaining of the
requisite environmental and ancillary permits that might be necessary for
approval of Phase II,
Page 30 - September 5, 1996
III, the Anticipated Capacities and the Annual Capacity, or for any further
proceedings that might be necessary for Phase I.
Nothing herein shall affect, however, the obligation of the County to
obtain approvals and complete construction of Phase I at its sole cost and
expense.
13. LINED LANDFILL
A. Exclusive Use
The County hereby grants Casella an exclusive lease, franchise,
license and privilege to build, operate and utilize a solid waste landfill at
the Lined Landfill including, but not limited to:
(1) The right to take possession of, occupy and have exclusive use of
all Facilities, other than the Unlined Landfill which shall be
governed by paragraph 11:
(a) The right to take possession, and use all Property, Personal
Property, Recycling Program, all building and fixtures which
are used at and located at the Lined Landfill. Nothing
herein shall limit the right of Casella to use its own
personal property, which right shall be unrestricted.
(b) Exclusive franchise, license and privilege to operate and
dispose of Acceptable Waste at the Lined Landfill;
(c) The use of permits in the County's name. The County agrees
to obtain and maintain in the County's name all permits and
registrations requested by Casella or to
Page 31 - September 5, 1996
transfer them into Casella's name at Casella's option if
permitted by law and to assist with all federal, state and
local agencies to obtain the issuance, modification and
amendment of all permits requested by Casella and otherwise
assist Casella in obtaining and maintaining such permits
during the term of this Agreement. The parties agree to use
good faith and due diligence in obtaining permits and any
modifications or amendments thereto.
(d) The covenant of non-competition. The County shall not during
the term of this Agreement or any extension thereof, to the
extent not violative of law, grant any other person or
entity any license, permit, franchise or right to recycle,
transfer or dispose of any waste within the County's
jurisdiction. The County further agrees not to compete with
Casella relative to the recycling, handling or disposal of
waste during the term of this Agreement (or Host Agreement)
or any extensions thereto.
B. Waste
(1) Approved Area
Casella shall have the right to recycle or dispose of Acceptable
Waste generated outside Clinton County provided the origin of the
waste is from the Approved Area. Acceptable County Waste,
Page 32 - September 5, 1996
in case of conflict, shall have priority over Acceptable Waste
originating outside Clinton County. Casella shall use best
efforts and good faith in complying with this restriction
provided, however, that Casella shall not be liable for the
removal of any such waste or damage sustained by the County so
long as Casella has operated in good faith.
(2) Transportation
Casella shall not be responsible for the transportation or
delivery of waste by or on behalf of the residents of Clinton
County. Casella shall also not be responsible for the
transportation or redelivery of any waste including, without
limitation, Excluded Waste that was improperly delivered and
subject to and in accordance with the terms of this Agreement.
Casella shall, however, be responsible for the transportation of
waste from the Convenience Stations once waste is received there.
(3) Acceptable Waste.
Casella agrees to accept only Acceptable Waste at the Lined
Landfill. Casella shall be responsible for the removal of
Excluded Waste, which provision shall not limit Casella's right
of recourse against the transporter or generator of the Excluded
Waste.
Page 33 - September 5, 1996
(4) Tonnage
Casella agrees to limit the annual tonnage of Acceptable Waste
received at the Lined Landfill to 125,000 Tons unless a higher
limit is authorized in writing by the County.
C. Construction
Casella agrees to finance and construct expansions of the Lined
Landfill to the extent permissible, pursuant to market forces and demand,
consisting of Phase II, III, and the Anticipated Capacities. Casella guarantees
that the design and construction of the expansions will meet or exceed any and
all state requirements pertaining to municipal solid waste landfills in New York
State.
Casella shall have the right to construct at the Lined Landfill such
buildings or fixed resources as it deems necessary for the operation of the
Lined Landfill including, but not limited to, recycling facilities, garages and
other construction in Casella's sole option.
D. Operation
(1) Casella shall have full control, both physical and managerial,
subject to the Labor Utilization Agreement, of the Facilities,
exclusive of the Unlined Landfill, from the Closing Date, subject
only to the express limitations of the Agreement.
(2) Casella shall be responsible for the day-to-day operation of the
Lined Landfill, including weighing waste, testing waste for
nature and consistency, preparation of waste for disposal, cell
Page 34 - September 5, 1996
construction, disposal of waste, preparing and applying daily
interim and final cover, construction of temporary roads and
other temporary access, installation and monitoring of ground
water wells, maintenance and operation of a leachate collection
system, and disposal of leachate.
(3) Casella shall be responsible for providing and maintaining all
necessary facilities for the receiving and handling of waste to
be disposed of at the Lined Landfill.
(4) Casella shall be responsible for providing:
(a) All engineering services necessary for the design,
construction and operation of the Lined Landfill (other than
Phase I).
(b) The maintenance of office facilities on the premises.
(c) The maintenance of all Personal Property necessary to
operate the Lined Landfill.
(d) The employment of all necessary personnel to operate the
Lined Landfill (subject, however, to the provisions of the
Labor Utilization Agreement).
(e) All services incidental to the business of operating the
Lined Landfill, including security, accounting, legal, fire
prevention and pollution control.
(5) Casella shall reject for disposal all Excluded Waste.
Page 35 - September 5, 1996
(6) Casella shall have the right to detain and inspect the contents
of all vehicles which are delivering waste to the Lined Landfill
to ensure that Excluded Waste is not being delivered to the Lined
Landfill. Casella shall have the right to refuse or reject such
Excluded Waste in its sole discretion or, if not detected prior
to entering the Lined Landfill, Casella shall have the right to
remove the Excluded Waste and ensure its proper disposal, all at
the hauler's expense. Casella shall have the right to ban haulers
from disposing at the Lined Landfill until such time as the
expenses for reimbursement for the removal of the Excluded Waste
are paid to Casella. Casella shall have the right to ban any and
all haulers who violate the rules governing the Lined Landfill
after consultation with the County and subject to the County's
consent, which consent shall not be unreasonably withheld.
(7) All revenue and income generated by or at the Facilities shall be
collected by Casella and shall be the property of Casella.
(8) Casella shall be responsible for Closure and Post Closure Care of
Phase I, Phase II, Phase III, and the Anticipated Capacities,
provided that such Phases were exhausted during the term of this
Agreement. Other than on account of a default by the County,
should this Agreement be terminated prior to the exhaustion of
the capacity of a particular Phase, Casella shall be responsible
for
Page 36 - September 5, 1996
a proportionate share of the Closure and Post Closure Care costs
based on the percentage of capacity Casella filled of that
particular Phase.
E. Weighing
Casella shall weigh all vehicles containing waste to be delivered to
the Lined Landfill pursuant to this Agreement. Casella shall utilize scales
approved by the State of New York to weigh all waste delivered to the Lined
Landfill. Casella shall have the right to impose additional charges beyond the
Tipping Fee for Special Waste based on volume unit, weight or characteristics.
The County or its authorized representative shall have the right at the County's
sole expense to test the accuracy of scales located at the Lined Landfill,
provided that these tests are conducted at reasonable times and do not
unreasonably interfere with the orderly operation of the Lined Landfill.
F. Hours of Operation
Casella shall have the right to operate the landfill at hours of its
choosing from 7:00 A.M. to 6 P.M., Monday through Saturday.
G. Inspection
The County shall have the right to inspect the Lined Landfill during
reasonable business hours in order to ensure that the provisions of this
Agreement are being complied with, that Acceptable Waste is being received at
the Landfill, and that the Landfill is being operated in conformity with New
York State and United States environmental laws.
Page 37 - September 5, 1996
Casella agrees to reimburse the County for the salary of one deputy
sheriff for the time the deputy sheriff spends in performing such inspections or
oversight, the reimbursement to be determined by taking the deputy sheriff's
normal and customary pay, absent overtime and paying the proportion of time that
said deputy sheriff expends at the Landfill provided, however, that Casella
shall not be responsible for more than the annual salary of said deputy sheriff.
H. Development of Phase I
The parties acknowledge and agree that the County has a permit to
operate and construct Phase I of the Lined Landfill. The construction and
granting of operational permits for Phase I shall be the responsibility of the
County and shall be completed at the sole cost and expense of the County. The
County shall make all efforts to ensure that the permit requirements are
satisfied and construction is completed and operations are authorized as
expeditiously as possible. Casella guarantees that the design and construction
of the expansions will meet or exceed any and all state requirements pertaining
to municipal solid waste landfills in New York State.
I. Effective Date Responsibilities
Upon the Effective Date, and until this Agreement is terminated,
Casella shall be responsible for all necessary maintenance, including winter
preservation, for operating control of the Lined Landfill as necessary to meet
the reasonable requirements of operation and maintaining as established by the
County engineers.
Page 38 - September 5, 1996
In addition, Casella will assume upon the Effective Date, all
negotiating responsibility for the County related to leachate disposal
associated with the Lined Landfill.
14. USE AND COMPLIANCE WITH LAW
The Facilities, other than the Unlined Landfill shall be kept by Casella in
substantial order and repair outside and inside at its sole cost and expense and
Casella shall comply with all orders, regulations, rules and requirements of
every kind and nature, now and hereinafter in effect, of the federal, state,
municipal or other governmental authorities having the power to enact, adopt,
impose or require the same whether they be usual or unusual, ordinary or
extraordinary or whether they or any of them relate to environmental
requirements or otherwise and Casella shall pay all costs and expenses
incidental to such compliance and shall indemnify and hold harmless the County
from all expense and damages by reason of any notices, orders, violations or
penalties filed against or imposed upon the Facilities, exclusive of the Unlined
Landfill, or against the County as owner thereof because of the failure of
Casella to comply with this covenant.
Casella shall have the right, at its own cost and expense, to contest or
review by legal proceedings the validity or legality of any law, order,
ordinance, rule, regulation, direction, or certificate of occupancy and during
such contest Casella may refrain from complying therewith provided that Casella
will not be subjected to criminal prosecution thereby and, that if requested to
do by the County, Casella shall furnish to the County a bond in form and amount
reasonably satisfactory to the
Page 39 - September 5, 1996
County guaranteeing to the County compliance by Casella such law, order,
ordinance, rule or regulation, if required.
15. LABOR AGREEMENTS
Casella and the County acknowledge that the County employs certain
employees at the presently functioning Facilities which are subject to a Labor
Agreement, annexed hereto as Exhibit "5", which expires on December 31, 1996.
The County acknowledges its obligation to bargain in good faith with respect to
any effect this Agreement might have on its employees, pursuant to the annexed
Labor Agreement and Casella and the County acknowledge that it is not the
intention of this Agreement to modify the existing Labor Agreement or the
obligations of the County.
Casella and the County agree to enter into a Labor Utilization Agreement
annexed hereto as Exhibit "3", relative to the existing county employees subject
of that Labor Agreement in order to maintain the status quo between the County
and its employees until the expiration of the Labor Agreement. Casella and the
County agree to be bound by the terms of the annexed Labor Utilization
Agreement.
16. GENERAL POWERS
In addition to the other powers granted to the County, it is expressly
acknowledged that in the exercise of the dominion and control of the Facilities,
Casella will be free, without restriction, to subcontract out those services
that it deems appropriate in its sole discretion, including, but not limited to,
Closure, Post-Closure Care, transportation of waste from the Convenience
Stations, or such
Page 40 - September 5, 1996
other services that Casella deems necessary, provided, however, that to the
extent applicable, Casella shall ensure that the subcontractors follow the
provisions of this Agreement.
17. LEACHATE DISPOSAL
Casella will enter into a long-term leachate disposal agreement with two
certified sources including at least one municipality located within the County
for the disposal of leachate. The responsibility for paying for leachate
disposal during the term of this Agreement shall be that of Casella.
18. RECORDS/AUDITS
The acceptance by the County of Recycling Payments or payments under the
Host Agreement, shall be without prejudice to the County's rights to an
examination of Casella's books and records from the operation of the Facilities
in order to verify the amount of Acceptable Waste or received material accepted
in the Recycling Program as provided herein, which should obligate Casella to
make payments to the County.
Casella shall, on the due date of each payment, deliver to the County a
written statement prepared and certified by Casella, showing in detail the
calculation of all payments due on that day.
Casella shall keep accurate and true records, books and dates with respect
to all material received under the Recycling Program and all Acceptable Waste
received at the Landfill. Accurate books and other records and data of account
shall be kept of
Page 41 - September 5, 1996
such business whether payment was made for cash or otherwise and whether or not
monies were actually received.
The County and its agents shall have the right at all reasonable times, but
in no event more than four times each calendar year, and on five days prior
written notice to Casella, to inspect and examine the accounts, records, books,
contracts and other data concerning the gross volume of business conducted under
this Agreement to the extent relevant to the calculation of monies due the
County. In the event that such inspection and examination shall disclose that
there is a material variation between the reports rendered by Casella as
aforesaid and the actual gross volume of business, the cost of the County's
examination shall be paid for by Casella as Lease Payments. Any information
obtained by the County as a result of such examination shall be treated as
confidential.
Casella shall not be obligated to hold the books and records for more than
2 years, provided there is no material variation as aforementioned.
19. NO JOINT VENTURE
It is further understood and agreed, that neither this Agreement nor the
method thereinbefore set forth for computing payments to the County by Casella,
nor any other provision of this Agreement or the Host Agreement, are intended
nor shall ever be construed as to create a co-partnership by and between the
County and Casella or make Casella and the County joint venturers, or make the
County in any way responsible for debts and/or losses of Casella.
20. REPRESENTATIONS AND WARRANTIES OF THE COUNTY
Page 42 - September 5, 1996
The County represents and warrants to Casella as follows:
(a) The County is a county in the State of New York with full legal right,
power and authority to enter into and to fully and timely perform its
obligations under this Agreement.
(b) The County is duly authorized to execute and deliver this Agreement and
this Agreement constitutes a legal, valid binding obligation of the County and
enforceable against the County in accordance with its terms.
(c) Neither the execution or the delivery by the County of this Agreement
nor the performance by the County of its obligations in connection with the
transactions contemplated hereby or the fulfillment by it of the terms and
conditions hereof conflicts with, violates or results in a breach of any
constitution, law or governmental regulation applicable to it or materially
conflict with, violates or results in a breach of any term or condition of any
order, judgment or decree or any agreement or instrument to which the County is
a party or by which the County or by any of its properties or personal property
are bound or constitutes a default.
(d) No approval, authorization, order, consent, declaration, bid,
registration or filing with any federal, state or local governmental authority
or referendum of voters which has not been obtained is required for the valid
execution and delivery by the County of this Agreement or the performance by the
County of its obligations hereunder.
(e) There is no action, suit or proceeding at law or inequity before or by
any Court or governmental authority pending or threatened against the County in
Page 43 - September 5, 1996
which an unfavorable decision, ruling or finding would materially adversely
affect the performance by the County of its obligations hereunder or other
transaction contemplated hereby or that in any way would materially adversely
affect the validity and enforceability of this Agreement.
(f) The permits supplied by the County to Casella for Phase I have not been
suspended, revoked or materially effected by any court, governmental authority,
regulatory ruling or regulatory advisement, and the County knows of no fact
under which the capacity of Phase I would be limited or restricted.
(g) The County knows of no facts which would prevent, limit or restrict the
granting of permits for Phase II, III at the Anticipated Capacities and Annual
Capacity from the New York State Department of Environmental Conservation or
would limit the anticipated capacity of those Phases.
(h) There are no contracts or agreements whereby any person, firm or entity
has any right over the Facilities.
(i) Annexed hereto as Exhibit "6" are full and complete permits which have
been issued relative to those portions of the Facilities requiring such permits.
All permits are in full force and effect and the County knows of no facts which
would affect the validity and continued operation of the Facilities subject of
these permits. The permits have not been suspended, revoked or affected by any
court, governmental authority, regulatory rule or regulatory advisement and the
County knows of no facts which might adversely affect these permits.
Page 44 - September 5, 1996
(j) The Labor Agreement annexed hereto as Exhibit "5" is the sole union
contract effecting personnel subject of this Agreement.
(k) There are no pending or threatened labor disputes, disturbances,
litigation, events or conditions (and to the best of the County's knowledge no
basis for same) involving the County and its employees relative to personnel
presently performing functions at the Facilities. There are no pending demands
for collective bargaining and no proceedings are pending before the Public
Employees Relations Board or any other such body having jurisdiction. The County
has not committed an unfair labor practice and is not a party to any collective
bargaining agreement related to the Facilities other than set forth in Exhibit
"5".
(l) The County covenants:
(i) None of the constructed buildings, structures and improvements
subject to this Agreement encroach on adjoining real estate.
(ii) All constructed buildings, structures and improvements are
located and constructed in conformance with all setback lines,
easements and other restructures or rights of records where it
has been established by the applicable zoning or building
ordinance or were in place prior to the institution of such
restrictions.
(iii) The improvements located on the Property are not the subject of
any official complaint or notice of violation of any applicable
zoning ordinance, use ordinance, building code, certificate of
Page 45 - September 5, 1996
occupancy or similar rule, regulation or permit and no such
violation is known to exist.
(m) None of the Facilities are subject to a security interest, mortgage,
deed of trust, lien, encumbrance or similar interest which would prevent the
culmination of this Agreement and the County owns fee simple good insurable
title to the Property except as is set forth in Schedule "K".
(n) None of the representations or warranties made by the County herein and
in the exhibits hereto and other information and material delivered by the
County to Casella contains any untrue statement of material fact or omits any
material fact necessary in order to make the statements contained herein and
therein not misleading.
(o) All reports and returns, whether to the New York State Department of
Environmental Conservation or other agency, regarding the Facilities required to
be filed with any governmental agency to date (federal, state or local) have
been filed. Except as disclosed to Casella in the consent order annexed hereto
as Exhibit "2", the County has no notice of any claim, violation of any
applicable federal, state, county and local law, ordinance or regulation,
including those applicable to discrimination in employment, pollution of the
environment and occupational safety and health. In particular the County has
filed all of the required notifications with the United States Environmental
Protection Agency and the New York State Department of Environmental
Conservation.
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21. REPRESENTATIONS AND WARRANTIES OF CASELLA
Casella represents and warranties to the County as follows:
(a) Casella is a foreign corporation duly incorporated, validly existing
and authorized to do business under the laws of the State of New York with full
legal right, power and authority to enter into and fully and timely perform its
obligations under this Agreement.
(b) Casella has duly authorized, executed and delivered this Agreement and
this Agreement constitutes a legal, valid and binding obligation enforceable
against Casella in accordance with its terms.
(c) Neither the execution or delivery by Casella of this Agreement nor the
performance by Casella of its obligations in connection with the transactions
contemplated hereby or the fulfillment of the terms and conditions hereof
conflicts with, violates or results in a breach of any law or governmental
regulation applicable to it or materially conflicts with, violates or results in
a breach of any term or condition of any order, judgment or decree or any
agreement or instrument to which Casella is a party or which Casella or any of
its properties or personal property are bound or constitutes a default
thereunder.
(d) No approval, authorization, order, consent, declaration, registration
or filing with any federal, state or local governmental authority is required
for the valid execution and delivery by Casella of this Agreement or the
performance by Casella of its obligations hereunder.
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(e) There is no action, suit or proceeding at law or in equity before or by
any court or governmental authority pending or threatened against Casella to the
best of Casella's knowledge, in which an unfavorable decision, ruling or finding
would materially and adversely affect the performance of Casella of its
obligations hereunder or any other transaction contemplated hereby or that in
any way would materially adversely affect the validity or enforceability of this
Agreement.
22. SURVIVAL OF WARRANTIES, REPRESENTATIONS AND COVENANTS
All representations, warranties, promises, agreements, covenants and
statements made herein or in any Schedule or Exhibit annexed hereto or in any
instrument or document delivered by or on behalf of any party pursuant to this
Agreement shall extend for the duration of this Agreement, as it may be
extended, regardless of what investigations the parties may have made before or
after the closing, except those representations and warranties which are
expressly waived by the party benefiting therefrom. Nothing herein contained
shall require that party to waive such representation and warranty.
23. TERMINATION
This Agreement may be terminated at any time:
(a) By mutual written agreement of the parties;
(b) By Casella if:
(1) Litigation is filed or threatened or any governmental authority
institutes an investigation of, to prohibit or takes action to
prevent consummation of any of the transactions contemplated
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hereby or does anything which in Casella's judgment renders such
consummation imprudent and the County fails to cure such default
within ninety (90) days.
(2) Any material portion of the Facilities is condemned, destroyed or
damaged by fire or otherwise.
(3) Any of the County's representations or warranties are not
materially true and accurate.
(4) If Casella is unable to enter into the anticipated leachate
disposal agreements prior to June 30, 1997.
(5) If the County fails to provide local permitting, zoning or other
obligated support pursuant to paragraphs 12 of this Agreement.
(6) If the County fails to obtain Phase I operational authority at
the defined capacities and the Annual Capacity or fails to
conclude construction pursuant to its obligations under paragraph
13(H) of this Agreement.
(c) By Casella relative to the Facilities, excluding the Unlined Landfill,
if:
(1) In the event that the County is unable to obtain operating
authority for Phase I of the Lined Landfill or, alternatively, is
unable to transfer said operational authority and/or permits
thereunder to Casella and the County fails to cure such event
within ninety (90) days.
(d) By the County if:
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(1) In the event of a default as defined by paragraph 35(B).
(2) Prior to the Closing Date through the payment of liquidated
damages in the sum of $100.00.
24. STRICT PERFORMANCE
The failure of either party to insist on the strict performance of any of
the terms, covenants and provisions of this Agreement or to exercise any option
herein contained shall not be construed as a waiver or a relinquishment for the
future of such term, covenant, condition, provision or option.
In addition to the other remedies provided in this Agreement, the County
shall be entitled to a restraint by injunction of the violation or attempted or
threatened violation of any of the terms, covenants, conditions or provisions of
this Agreement.
25. OPTION TO EXTEND LEASE
In the event that this Agreement is extended during its term, and in the
event that the extension is for a period of 25 years, then, in consideration of
that extension, Casella shall pay to the County the Option Payment, which
payment shall be due no earlier than the 7th year anniversary of the Closing
Date, or in the event the extension is executed after the 7th year anniversary,
but prior to the expiration of the original term, then the Option Payment shall
be due on the execution date of the extension agreement, whichever comes later.
If the parties shall so avail themselves of such option, the parties shall
promptly execute an extension agreement which shall contain substantially like
terms and provisions as this Agreement, except those parts hereof which shall
have been
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fully performed and except that no Lease Payments shall be required for the term
of the extension, but payments shall continue under the provisions of the Host
Agreement.
26. EMINENT DOMAIN
The County agrees to waive any rights that it might have to acquire the
leasehold, or title as the case might be, to all, or any portion of, the
Facilities and agrees to cooperate with Casella in opposing any effort by any
other governmental body to exercise its rights, if any, of eminent domain.
In the event an award is made, it shall be apportioned between the County
and Casella on the basis of the value of Casella's leasehold, or operating
contract, including any extensions, but subject to the County's reversionary
interest.
27. CHAMPLAIN VALLEY INDUSTRIES
Casella agrees to assume and hold harmless the County with respect to the
County's financial obligations to the extent of $46,355.00 (Forty six thousand,
three hundred and fifty five) to Champlain Valley Industries pursuant to the
contract annexed hereto as Exhibit "7" for the year 1996.
28. INSURANCE
Casella covenants and agrees to procure and keep in force and effect at all
times with the premiums paid, general liability, fire and workers compensation
insurance insuring both the County and Casella for the Facilities, excluding the
Unlined Landfill, in the amounts set forth in Schedule "L", insuring against
loss by solvent insurance companies authorized and licensed to issue such
policies in the
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State of New York and to maintain such insurance at all times during the term of
this Agreement and any extensions thereto. Casella agrees to pay premiums as
they so accrue and if not so paid, the County, at its option, shall pay such
premiums. Such accrued premiums, whether or not paid for by the County, shall be
deemed additional Lease Payments due and payable on the next Lease Payment due
date or the following quarter if all Lease Payments have been made. Payments of
such premium by the County shall not be deemed a waiver of the default in
payment by Casella, and the County, whether or not it should have paid such
premiums, shall have recourse to remedies hereinbefore provided in the
performance of the terms and conditions of this Agreement. It shall be the
County's responsibility to provide insurance for the Unlined Landfill and to
name Casella as an added insured on said policy to the extent of the County's
coverage.
29. COVENANT OF QUIET ENJOYMENT
The County covenants and agrees that Casella, on paying the Lease
Payments and other payments envisioned by this Agreement and observing and
keeping the covenants, agreements and stipulation of this lease on its part to
be kept, shall lawfully, peacefully and quietly hold, occupy and enjoy (or
operate, as the case might be) said Facilities, during the term and any
extensions thereto without hindrance, objection or molestation.
30. ASSIGNMENT
This Agreement may be assigned by Casella to any entity controlling,
controlled by, or under common control with Casella.
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31. CUMULATIVE REMEDIES
The specified remedies to which the County may resort under the terms
of this Agreement are not exclusive of any other remedies or means of redress to
which the County may be lawfully entitled in case of any breach or threatened
breach by Casella of any provision or provisions of this Agreement.
32. ARBITRATION
Whenever under any previous provisions of this Agreement it is provided
that a dispute be determined by arbitration, the County and Casella shall within
thirty (30) days after demand by either party to the other for the appointment
of arbitrators, each appoint a person as an arbitrator to determine such
dispute. Each party shall make its respective appointment and notify the other
thereof in writing not later than the dates so provided and in default of such
appointment or notification by either party of such date, then on written
application by the party not in default the then presiding judge of the Supreme
Court of Clinton County shall appoint a person to act as their arbitrator for
and on behalf of the party hereto that has so defaulted in making such
appointment. If two arbitrators so appointed shall within fifteen (15) days
after the date of notification of appointment of the one of them who was last
appointed, be unable to agree upon the determination of such dispute then said
two arbitrators shall appoint one other fit and impartial person to act as a
third arbitrator. If they shall fail to appoint such third arbitrator within the
said period of fifteen (15) days, then upon written application by either party
hereto, such third arbitrator shall be appointed by said justice and the person
so appointed as a third arbitrator shall
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serve and act together with the first two arbitrators for the purpose of said
arbitration.
33. CAPTIONS AND HEADINGS
Captions and headings throughout this Agreement are for convenience and
reference only and the words contained therein shall in no way be held or deemed
to define, limit, describe, explain, modify, amplify or add to the
interpretation, construction or meaning of any provision or of the scope or
intent of this lease nor in any way affect this lease.
34. MODIFICATIONS
This Agreement cannot be changed orally, but only by agreement in writing
signed by the party against whom enforcement of the change, modification or
discharge is sought or by its duly authorized agent.
35. DEFAULT/REMEDIES
(a) Breaches. A breach of this Agreement shall mean a material failure by
either party to comply with any of the material provisions of this Agreement.
(b) Events of Default. An event of default shall mean a breach of this
Agreement by the County, which breach is not cured pursuant to paragraph 36
hereof, or a breach of one of the following obligations of Casella which is not
cured pursuant to paragraph 36:
(1) Failure to make Lease Payments after proper notification.
(2) Failure to make Host Fee payments after proper notification.
(3) Failure to make Recycling Payment after proper notification.
Page 54 - September 5, 1996
(4) Breach of Closure responsibilities.
(5) Failure to provide permit required closure reserves resulting in
a determination of a permit violation.
(6) Failure to construct Phase II or Phase III in a timely manner,
subject to adequate market conditions and the cooperation of the
Town and County pursuant to their obligations under the Host
Agreement.
All other, if any, alleged breaches by Casella may be enforced by judicial or
administrative order or judgment, as the case might be, but shall not be
considered an event of default and shall not give rights to the County to
terminate this agreement.
(c) Remedies for Default.
(i) In the event of a default under this Agreement , the
non-defaulting party shall, upon five (5) days prior written notice to the
defaulting party, have the right, but not the obligation or duty, to cure such
default, including the right to offset the costs of curing the default against
any sums due or which become due to the defaulting party under this Agreement.
In any event, such costs shall be considered additional Lease Payments or
credits under the Agreement. The non-defaulting party shall use its best efforts
to employ an economically reasonable method of curing any such default.
(ii) If any event of default occurs and is not cured in the manner
allowed hereunder, then this Agreement shall continue in force and the
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non-defaulting party shall have the right to take whatever action at law or in
equity that it deems necessary or desirable to collect any amounts then due or
thereafter to become due under this Agreement or to enforce performance of any
covenant or obligation of the breaching party under this Agreement.
36. RIGHT TO CURE BREACH
Each party shall, in the case of any breach of its obligations under this
Agreement, either:
(a) Cure the breach within ninety (90) days of receipt of written notice
from the non-breaching party or;
(b) Continuously demonstrate within such cure period that it is actively
and continuously pursuing a course of action which can reasonably be expected to
lead to a curing of the breach (the ninety (90) day period will be extended for
so long as the breaching party is actively and continuously pursuing such a
course) provided, however, that (i) in the event of the failure of any party to
this Agreement to pay the other party or parties any sum or due amount required
to be paid when due hereunder, cure shall consist of payment which will be made
within fifteen (15) days of written demand from the non-breaching party together
with interest accruing at the legal rate from the date the payment was due; (ii)
in the event that Casella materially fails to limit the processing or disposal
of Excluded Waste to that allowed to be processed or disposed of by this
Agreement or unreasonably rejects Acceptable Waste from the County from
processing or disposal at the Landfill, the cure shall consist of the immediate
action to remedy these practices within thirty (30) days or
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such additional time as may be reasonably necessary to cure, provided that
Casella is actively and continuously pursuing a course of action which will
reasonably lead to a curing of the breach
37. NOTICE
All notices or other communications to be given hereunder shall be in
writing and may be given by personal delivery or by registered or certified
United States mail, return receipt requested, properly addressed as follows:
To the County: Administrator
County of Clinton
137 Margaret Street
Plattsburgh, New York 12901
With a copy to:
To Casella: James Bohlig, Vice President
Casella Waste Systems, Inc.
Box 866
Rutland, Vermont 05702
With a copy to: Ronald Sinzheimer, Esq.
23 Elk Street
Albany, N.Y. 12207
38. FORCE MAJEURE
In the event that the County or Casella is rendered unable, wholly or in
part, by an event of Force Majeure to carry out any of the obligations under
this Agreement, then, in addition to the other remedies provided in this
Agreement, the obligations of the respective party may be suspended during the
continuation of the
Page 57 - September 5, 1996
event of Force Majeure, but for no longer a period. At any time that either
party intends to rely upon an event of Force Majeure to suspend obligations as
provided in this section, the party shall notify the other party to this
Agreement as soon as reasonably practical describing in reasonable detail the
circumstances of the event of Force Majeure. Notice shall again be given when
the effect of the event of Force Majeure has ceased.
39. SEVERABILITY
In the event that any one or more of the provisions contained in this
Agreement shall for any reason be held to be invalid, illegal or unenforceable
in any respect, such illegality or unenforceability shall not effect any other
provisions of this Agreement and this Agreement shall be construed as if such
invalid, illegal or unenforceable provision had never been contained herein.
Provided, however, that it is the intention of the parties that in lieu of such
term, clause or provision that is held to be invalid, illegal or unenforceable,
there should be added by mutual agreement as a part of this Agreement a term,
clause or provision as similar in terms to such illegal, invalid or
unenforceable term, clause or provision as may be possible, valid legal and
enforceable. Notwithstanding the above, if the term of this Agreement is held to
be invalid, illegal or unenforceable in any respect, then the term of this
Agreement shall automatically be the maximum valid and legal term allowed by
applicable common or statutory law. In the event that the term held to be
invalid, illegal or unenforceable prevents the operation of the Lined Landfill
by Casella and the term may not be amended to allow such operation, Casella may,
at its option,
Page 58 - September 5, 1996
terminate this Agreement and the Lease Payments made hereunder shall be
apportioned based on the Air Space anticipated for the Lined Landfill versus the
actual Air Space utilized and the appropriate payments, or refunds, shall be
made in order to reflect that apportionment.
40. SUSPENSION AND EXTENSION
In the event the disposal of Acceptable Waste in the Lined Landfill is
delayed by judicial or legal action taken by parties other than the County or
Casella, or that the effectuation of the material terms of this Agreement is
delayed by such action, this Agreement shall be extended by the period of such
delay, whether such delay was caused by court order or by the litigation
process.
41. CONSTRUCTION
Words importing the singular number shall include the plural in each case
and vice versa, and words importing persons shall include firms, corporations,
or other entities. The terms "herein", "hereunder", "hereto", "hereof" and any
similar terms, shall refer to this Agreement; the term "heretofore" shall mean
before the date of adoption of this Agreement. This Agreement is the result of
joint negotiations and authorship and no part of this Agreement shall be
construed as the product of any one of the parties hereto.
42. ENTIRE AGREEMENT
This Agreement constitutes the entire Agreement between the County and
Casella, and cancels and supersedes all prior negotiations, representations,
understandings and agreements, either written or oral, between such parties with
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respect to the subject matter hereof. The parties acknowledge and agree that
this Agreement is entered into in contemplation of the contemporaneous execution
of the Host Agreement, and the Labor Utilization Agreement, and these agreements
shall be read and interpreted together. No changes, amendments, alterations, or
modifications to this Agreement shall be effective unless in writing and signed
by the parties hereto.
43. COUNTERPARTS
This Agreement may be executed in two (2) counterparts, each of which will
be considered an original.
44. GOVERNING LAW
This Agreement shall be governed by and construed in accordance with the
Laws of the State of New York.
45. BINDING EFFECT
This Agreement shall be binding upon and inure to the benefit of the
parties hereto, Casella and their respective successors and/or assigns.
46. AUTHORITY OF PARTIES
The individuals who have executed this Agreement on behalf of the
respective parties expressly represent and warrant that they are authorized to
sign on behalf of such entities for the purpose of duly binding such entities to
this Agreement.
47. EFFECT
This Agreement restates the Operation, Management and Lease Agreement. It
is intended to restate the Operation, Management and Lease Agreement with minor
Page 60 - September 5, 1996
variations, without effecting the full force and effect of the Operation,
Management and Lease Agreement or the obligations which commenced on the date it
was executed to the extent this Agreement differs from the Operation, Management
and Lease Agreement, this Agreement shall govern.
IN WITNESS WHEREOF, the parties have placed their signatures and seals.
COUNTY:
-------
CLINTON COUNTY, NEW YORK
------------------------
By:
---------------------------
Title:
---------------------------
Attest:
---------------------------
Date of Execution:
---------------------------
Title: (County Seal)
---------------------------
CASELLA:
--------
CASELLA WASTE SYSTEMS, INC.
---------------------------
By:
---------------------------
Title:
---------------------------
Attest:
---------------------------
Date of Execution:
---------------------------
Title: (Corporate Seal)
---------------------------
Page 61 - September 5, 1996
STATE OF NEW YORK )
) ss.:
COUNTY OF CLINTON )
On this 9th day of September, 1996, before me came John Casella, to me
personally known, who, being by me duly sworn, did depose and say that (s)he
resides in Rutland, VT, that (s)he is the President of the Casella Waste
Systems, Inc. described in, and which executed, the within Instrument; that
(s)he knows the seal of said CWS; that the seal affixed to said Instrument is
such CWS seal; that it was so affixed by order of the Board of Directors of said
CWS; and that (s)he signed his/her name thereto by like order.
---------------------------------
NOTARY PUBLIC
STATE OF NEW YORK )
) ss.:
COUNTY OF CLINTON )
On this 9th day of September, 1996, before me came Donald Garrent, to me
personally known, who, being by me duly sworn, did depose and say that he
resides in Plattsburgh, NY, that he is the Chairman County Leg. of the municipal
corporation described in, and which executed, the within Instrument; that he
knows the seal of said corporation; that the seal affixed to said Instrument is
such corporate seal; that it was so affixed by order of the County Leg. of said
corporation; and that he signed his name thereto by like order.
---------------------------------
NOTARY PUBLIC
Page 62 - September 5, 1996