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Home My WebLink About07-1050PENNSYLVANIA WASTE INDUSTRIES ASSOCIATION c/o Webber Associates One Westwind Way LeMoyne, PA 17043 Plaintiff, v. SOLID WASTE AUTHORITY OF CUMBERLAND COUNTY _ 1 S. Hanover Street Carlisle, PA 17013 and COUNTY OF CUMBERLAND 1 Courthouse Square Carlisle, PA 17013 Defendants. IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY CIVIL ACTION 0 `r • I 0 5 a? YOU HAVE BEEN SUED IN COURT. IF YOU WISH TO DEFEND AGAINST THE CLAIMS SET FORTH IN THE FOLLOWING PAGES, YOU MUST TAKE ACTION WITHIN TWENTY (20) DAYS AFTER THIS COMPLAINT AND NOTICE ARE SERVED, BY ENTERING A WRITTEN APPEARANCE PERSONALLY OR BY AN ATTORNEY AND FILING IN WMTING WITH THE COURT YOUR DEFENSES OR OBJECTIONS TO THE CLAIMS SET FORTH AGAINST YOU. YOU ARE WARNED THAT IF YOU FAIL TO DO SO THE CASE MAY PROCEED WITHOUT YOU AND A JUDGMENT MAY BE ENTERED AGAINST YOU BY THE COURT WITHOUT FURTHER NOTICE FOR ANY MONEY CLAIMED IN THE COMPLAINT OR FOR ANY OTHER CLAIM OR RELIEF REQUESTED BY THE PLAINTIFF. YOU MAY LOSE MONEY OR PROPERTY OR OTHER RIGHTS IMPORTANT TO YOU. YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER OR CANNOT AFFORD ONE, GO TO THE TELEPHONE OR THE OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP. CUMBERLAND COUNTY BAR ASSOCIATION 32 SOUTH BEDFORD STREET CARLISLE, PA 17013 1-800-990-9108 717-249-3166 DRINKER BIDDLE & REATH LLP David J. Brooman, Esq. Attorney I.D. No. 36571 Andrew P. Foster, Esq. Attorney I.D. No. 46749 Maryanne Starr Garber, Esq. Attorney I.D. No. 82795 One Logan Square, 18th & Cherry Streets Philadelphia, PA 19103 phone (215) 988 2700/fax (215) 988 2757 Attorneys for Plaintiff, Pennsylvania Waste Industries Association PENNSYLVANIA WASTE INDUSTRIES IN THE COURT OF ASSOCIATION COMMON PLEAS OF c/o Webber Associates CUMBERLAND COUNTY One Westwind Way LeMoyne, Pennsylvania 17043 CIVIL ACTION 72v .6 16" Plaintiff, V. SOLID WASTE AUTHORITY OF CUMBERLAND COUNTY 1 S. Hanover Street Carlisle, PA 17013 and COUNTY OF CUMBERLAND 1 Courthouse Square Carlisle, PA 17013 : Defendants. COMPLAINT ACTION FOR DECLARATORY JUDGMENT Plaintiff, Pennsylvania Waste Industries Association, by and through its undersigned counsel, brings this civil action for declaratory judgment against Defendants Solid Waste Authority of Cumberland County and County of Cumberland, and in support thereof avers as follows: INTRODUCTION This Complaint is brought as an action for declaratory judgment pursuant to Pa. R.C.P. 1601 et seq. and 42 Pa. Cons. Stat. Ann. § 7531 et seq. 2. Plaintiff Pennsylvania Waste Industries Association ("PWIA"), an unincorporated association, is the Pennsylvania chapter of the National Solid Waste Management Association ("NSWMA"). NSWMA is a non-profit trade association that represents the interests of the North American waste services industry. 3. Defendants Solid Waste Authority of Cumberland County and County of Cumberland are political subdivisions of the Commonwealth of Pennsylvania. 4. Under the Municipal Waste Planning Recycling and Waste Reduction Act, 53 P.S. §§4000.101 et seq. ("Act 101"), each Pennsylvania county is responsible for preparing and implementing a solid waste management plan ("Act 101 Plan"). 5. In Cumberland County, the responsibility to prepare and implement the Act 101 Plan is shared between the County itself, and the Solid Waste Authority of Cumberland County ("SWACC"). The SWACC is a duly-created Pennsylvania municipal authority that is directed by a seven member board appointed by the County Commissioners. 6. As part of implementing the Cumberland County Act 101 Plan, SWACC periodically issues Requests for Proposals for bidders to provide disposal capacity for municipal solid waste ("MSW") generated in Cumberland County. 2 7. After reviewing and accepting such proposals in accordance with Act 101 and its implementing regulations, SWACC enters into various solid waste disposal contracts for the benefit of Cumberland County. 8. On January 26, 2007, SWACC issued a new Request for Proposal (the "RFP") inviting bids for providing disposal capacity for MSW generated in Cumberland County. At issue here, the RFP provides for the payment to SWACC by all approved disposal facilities of what is called a "Contract Surcharge" of $2.50 on every ton of MSW disposed. 9. Similarly, and also at issue here, existing contracts entered into between SWACC and various disposal facilities provide for the payment to SWACC by all approved disposal facilities of what is called a "County System Fee" of $2.50 on every ton of MSW disposed. 10. Whether called a "Contract Surcharge" or a "County System Fee," the $2.50 per ton charge imposed by SWACC is illegal under Commonwealth law, both as preempted by Act 101 and its implementing regulations, and as an improper ultra vires exercise of authority. See IESI Bethlehem Landfill, et al. v. Counb? o Lehigh 887 A.2d 1289 (Pa. Commw. Ct. 2005) and Pennsylvania Independent Waste Haulers Association et al. v. County of Northumberland. et al., 885 A.2d 1105 (Pa. Commw. Ct. 2005). 11. Accordingly, in and by this action, Plaintiff PWIA seeks a declaratory judgment that the current and proposed imposition and collection by Defendants SWACC and/or Cumberland County from disposal facilities of either the proposed "Contract Surcharge" or the existing "County System Fee" is without any legal basis under Commonwealth law, and is therefore null, void, and uncollectible. 3 JURISDICTION AND VENUE 12. The Court has jurisdiction over this action pursuant to 42 Pa. C.S.A. §§ 931 and 7532. 13. Venue is proper in this Court pursuant to Rule 2103 of the Pennsylvania Rules of Civil Procedure because the cause of action asserted is against the County of Cumberland and its duly-created municipal authority. THE PARTIES 14. Plaintiff Pennsylvania Waste Industries Association ("PWIA") is the Pennsylvania chapter of the National Solid Wastes Management Association ("NSWMA"). NSWMA is a non-profit trade association that represents the interest of the North American waste services industry. 15. PWIA members include privately-owned solid waste management companies, including the owners and operators of privately-owned MSW landfills in Pennsylvania. 16. PWIA members receive MSW generated in Cumberland County. 17. PWIA maintains its offices at One Westwind Way, LeMoyne, Pennsylvania 17043. 18. Defendant County of Cumberland is a Commonwealth political subdivisions and maintains its offices at 1 Courthouse Square, Carlisle, PA 17013. 4 19. Defendant Solid Waste Authority of Cumberland County ("SWACC") is a Pennsylvania municipal authority and maintains its offices at 1 S. Hanover Street, Carlisle, PA 17013. FACTUAL ALLEGATIONS COMMON TO ALL COUNTS 20. On January 26, 2007, SWACC issued a new Request for Proposals to Provide Disposal Capacity for Cumberland County, Pennsylvania, Generated Municipal Waste (the "RFP"). A true and correct copy of the January 26, 2007 RFP is attached hereto as Exhibit A and incorporated herein by reference. 21. The RFP was issued to solicit proposals to negotiate contracts for disposal capacity for MSW generated in Cumberland County for a period of ten (10) years based upon an initial three (3) year term and renewals thereafter. 22. Responses to the RFP are due by Monday, February 26, 2007. 23. Section 4c of the Municipal Waste Disposal Contract Specifications (the "Contract Specs") set forth in Section E of the RFP provides for the imposition of what is called a "Contract Surcharge" of $2.50 on every ton of Cumberland County MSW, to be paid to SWACC by each approved disposal facility accepting Cumberland County generated MSW. 24. Section 4c of the Contract Specs set forth in Section E of the RFP provides that, as consideration for entry into a MSW Disposal Contract, a disposal facility shall agree to incorporate the "Contract Surcharge" on every ton of Cumberland County MSW, including construction and demolition waste. 5 25. Section 4c of the Contract Specs set forth in Section E of the RFP requires that the "Contract Surcharge" be included in any Price Proposal submitted by disposal facilities in response to the RFP. 26. Separate and apart from the new RFP, individual members of PWIA currently are designated disposal facilities under Cumberland County's current Solid Waste Management Plan, currently have disposal contracts with SWACC and/or Cumberland County, and currently receive Cumberland County MSW. 27. Current disposal contracts between individual PWIA members and SWACC and/or Cumberland County provide for the payment to SWACC by all approved disposal facilities of what is called a "County System Fee" of $2.50 on every ton of MSW disposed. A true and correct copy of one such example contract is attached hereto as Exhibit B and incorporated herein by reference. 28. Individual PWIA members have paid and continue to pay the "County System Fee" under their existing disposal contracts with SWACC and/or Cumberland County. 29. Whether called a "Contract Surcharge" or a "County System Fee," the existing and proposed payments/fees are illegal under Commonwealth law, both as preempted by Act 101 and its implementing regulations, and as an improper ultra vires exercise of authority. 30. As responses to the RFP that includes the proposed, but illegal, "Contract Surcharge," are due on Monday, February 26, 2007, and as Defendants SWACC and County of Cumberland are requiring disposal facilities: (A) to include the "Contract Surcharge" in Price Proposals submitted in response to the RFP; (B) to agree to the 6 "Contract Surcharge" as a condition to submitting a response to the RFP; and (C) to agree to pay the "Contract Surcharge" as a condition to becoming a designated facility under the Cumberland County Solid Waste Management Plan, an actual controversy between PWIA on behalf of its members and Defendants exists, which is ripe for judicial determination. 31. As individual PWIA members have paid and currently are paying the existing, but illegal, "County System Fee" pursuant to existing disposal contracts with SWACC and/or the County of Cumberland, an actual controversy between PWIA on behalf of its members and Defendants exists, which is ripe for judicial determination. 32. Declaratory relief is appropriate because the declarations sought by Plaintiff PWIA as to the validity of the proposed "County System Fee" and the existing "Contract Surcharge" will resolve or assist the parties in resolving this controversy. 33. As representative of members who are required to include the "Contract Surcharge" in any Price Proposal submitted in response to the RFP, to agree to the "Contract Surcharge" as a condition to submitting a response to the RFP, and to agree to payment of the "Contract Surcharge" as a condition to becoming a designated facility under the Cumberland County Solid Waste Management Plan, PWIA's interest in this controversy is direct, substantial and present. 34. As representative of members who have paid and currently are paying the "County System Fee" to SWACC and/or the County of Cumberland, PWIA's interest in this controversy is direct, substantial and present. 7 COUNTI DECLARATORY JUDGMENT REGARDING PREEMPTION 35. Plaintiffs incorporate herein by reference the allegations set forth above in paragraphs 1 through 34 of this Complaint. 36. Act 101 and its implementing regulations preempt Defendants SWACC and Cumberland County from imposing or collecting, or attempting to impose or collect, as part of the RFP, the so-called "Contract Surcharge." See IESI Bethlehem Landfill, et al. v. County of Lehigh. 887 A.2d 1289 (Pa. Commw. Ct. 2005) and Pennsylvania Independent Waste Haulers Association, et al. v. County of Northumberland, et al., 885 A.2d 1105 (Pa. Commw. Ct. 2005). 37. Act 101 and its implementing regulations preempt Defendants SWACC and Cumberland County from imposing or collecting, or attempting to impose or collect, as part of any existing contracts, the so-called "County System Fee." See IESI Bethlehem Landfill, et al. v. County o Lehigh, 887 A.2d 1289 (Pa. Commw. Ct. 2005) and Pennsylvania Independent Waste Haulers Association, et al. v. County of Northumberland, et al., 885 A.2d 1105 (Pa. Commw. Ct. 2005). WHEREFORE, Plaintiff PWIA, for itself and on behalf of its members, respectfully requests that this Court enter a declaratory judgment in its favor and against Defendants SWACC and Cumberland County, which judgment is and shall be binding upon the Defendants in this and all other actions, as follows: (a) declaring that the imposition and collection, or attempted imposition or collection, by Defendants SWACC and/or Cumberland County of the proposed "Contract Surcharge" is preempted by Act 101 and its implementing regulations. (b) declaring that the imposition and collection, or attempted imposition or collection, by Defendants SWACC and/or Cumberland County of any existing "County System Fee" is preempted by Act 101 and its implementing regulations. (c) declaring that the provisions of any contract, ordinance, rule or regulation providing for either a "County Surcharge" or a "County System Fee" is without any legal basis under Commonwealth law, and is therefore null, void, and uncollectible. (d) declaring that Defendants are required to pay to Plaintiff PWIA all costs and counsel fees incurred in connection with this litigation as the Court finds is just and reasonable; and (e) granting such other and further relief as the Court may deem appropriate. COUNT II DECLARATORY JUDGMENT REGARDING ULTRA VIRES 38. Plaintiffs incorporate herein by reference the allegations set forth above in paragraphs 1 through 37 of this Complaint. 39. Defendants SWACC and Cumberland County are without legal authority and are acting or attempting to act ultra vires in connection with imposing or collecting, or attempting to impose or collect, as part of the RFP, the so-called "Contract Surcharge." See IESI Bethlehem Landfill, et al. v. Count? ofL! hi 887 A.2d 1289 (Pa. Commw. Ct. 2005) and Pennsylvania Independent Waste Haulers Association, et al. v. County of Northumberland, et al., 885 A.2d 1105 (Pa. Commw. Ct. 2005). 9 40. Defendants SWACC and Cumberland County are without legal authority and are acting or attempting to act ultra vires in connection with imposing or collecting, or attempting to impose or collect, as part of any existing contracts, the so-called "County System Fee." See IESI Bethlehem Landfill, et al. v. County o Lehi, 887 A.2d 1289 (Pa. Commw. Ct. 2005) and Pennsylvania Independent Waste Haulers Association, et al. v. County of Northumberland, et al., 885 A.2d 1105 (Pa. Commw. Ct. 2005). WHEREFORE, Plaintiff PWIA, for itself and on behalf of its members, respectfully requests that this Court enter a declaratory judgment in its favor and against Defendants SWACC and Cumberland County, which judgment is and shall be binding upon the Defendants in this and all other actions, as follows: (a) declaring that the imposition and collection, or attempted imposition or collection, by Defendants SWACC and/or Cumberland County of the proposed "Contract Surcharge" is without any legal basis under Commonwealth law. (b) declaring that the imposition and collection, or attempted imposition or collection, by Defendants SWACC and/or Cumberland County of any existing "County System Fee" is without any legal basis under Commonwealth law. (c) declaring that the provisions of any contract, ordinance, rule or regulation providing for either a "County Surcharge" or a "County System Fee" is without any legal basis under Commonwealth law, and is therefore null, void, and uncollectible. (d) declaring that Defendants are required to pay to Plaintiff PWIA all costs and counsel fees incurred in connection with this litigation as the Court finds is just and reasonable; and 10 (e) granting such other and further relief as the Court may deem appropriate. DRINKER BIDDLE & REATH LLP By: ?- David J. Brooman, Esq. Attorney I.D. No. 36571 Andrew P. Foster, Esq. Attorney I.D. No. 46749 Maryanne Starr Garber, Esq. Attorney I.D. No. 82795 One Logan Square 18th & Cherry Streets Philadelphia, PA 19103 215-988-2700 Attorneys for Plaintiff Pennsylvania Waste Industries Association 11 Ad ? Z .8 kIJ 9? 833 LOOZ rt ? U 30 VERIFICATION I, Timothy S. O'Donnell, verify that I am the President of the Pennsylvania Waste Industries Association ("PWIA") and, as President of PWIA, I am authorized to make this verification on behalf of PWIA. I hereby verify that the statements made in the foregoing Action for Declaratory Judgment are true and correct to the best of my knowledge, information and belief. I understand that false statements herein are made subject to the penalties of 18 Pa.C.S.A. § 4904 relating to unsworn falsification to authorities. Dated: 21jUQ 1 . Timothy ?VMD'Donnell REQUEST FOR PROPOSALS TO PROVIDE DISPOSAL CAPACITY FOR CUMBERLAND COUNTY, PENNSYLVANIA, GENERATED MUNICIPAL WASTE SOLID WASTE AUTHORITY OF CUMBERLAND COUNTY JANUARY 26, 20.07 SOLID WASTE AUTHORITY OF CUMBERLAND COUNTY REQUEST FOR PROPOSALS FOR MUNICIPAL SOLID WASTE DISPOSAL CAPACITY TABLE OF CONTENTS Paae Table of Contents .... ............... i Disclaimer Statement ........................... iii . ....................................................................... ....:..:................................................... .. List of Acronyms ................... ....:.......................iv A. Advertisement for Proposals .................. ..... ......... .......................................... A-1 B C. 1. Solicitation for Municipal Solid Waste Disposal Capacity .... .................... A-1 Instructions to Proposers .......................... ............................. .. ...................... B-1 1. Receipt and Opening of Proposals ................................. B-1 ...................... 2. Scope of Services ................................................... ........ .. ........................ B-1 3. Terms of Contract., ................................ ......................... .............. .. ........ B-2 4. Preparation and Submission of Proposals ...................... ........................ B-2 5. Requirements for Signing Proposals ............................... B-2 .................. 6. Proposal Bond or Proposal Security .................... ............ ...... ........ B-3 ................. 7. Proposer's Responsibility ........................ ........................ ..................... . B-3 8: Qualifications and Competency of the Proposers ........... ........................ B-4 9. Right to Reject ......................... . 10. Basis of Proposal Evaluation and Contract Award(s) ....... .................... B-4 . 11. Anticipated Date of Contract Award(s) ....................:........ . . .... B-4. 12. Confidentiality... .............................................................. ........................ B-5 Background Information .......................................................... ...................... C-1 1. General ............................... ..:.......... C-1 2. Purpose of this RFP ............................................................................... C-1 3. Disposal Tonnages ................................................................................ C-3 4. Selection Process ................................... ............................... ................. C-3 5. Evaluation Procedure .................: C-3 ........................................................... 6. Project Schedule ....:..................................... .. ... C-5 ................................... . . SWACC DisposaN Capacity RFP January 26, 2007 TABLE OF CONTENTS (Continued) Page D. E Price Proposal and Qualification Questionnaire .................................. . D-1 1. Contract Terms ....................................... .. D-1 2. Contract Surcharge ................................. ................................. ......... . . ... D-1 3. Types and Estimated Quantities of Waste To Be Accepted ..... .............. D-2 4. Proposed Rate Schedule for Waste Disposal Capacity., ......... ............... D-3 5. Company Experience and'Operating History ............................ ............. D-6 6. Consideration of Terms and.Conditions of RFP ......................... ............. D-8 7. Proposal Form ............................... ... .................................... . . . ............. D-9 Municipal Waste Disposal Contract Specifications ...................................... E-1 1 3 5 6 9 Definitions .................................................. ........ .... .......... ....... ................ E-1 Scope of Contract ...................... ...................................... ........................ E-4 Service, Operations and Performance ......................... ..................... E-7 Recordkeeping and Reporting Requirements ................... ..................... E-10 Insurance ...................................................... ................... .............. . . ..... E-12 Performance Bond ....................................... .................... .... ................. E-14 Nondiscrimination ........................ .................................... ....... . . ............ E-1.7 Indemnification ..........................* ... ... ... ............................. . ............... E-18 Permits........... E-18 LIST OF FIGURES Figure 1 Cumberland County Maps ..................................................................... C-2 SWACC Disposal Capacity RFP January 26, 2007 DISCLAIMER STATEMENT The information contained in this Request for Proposals (RFP) has been prepared by the Solid Waste Authority of Cumberland County from information received by them, and such information is believed to be accurate and reliable. However, by its receipt of this RFP, the party whose name appears below remises, releases and forever discharges the Solid Waste Authority of Cumberland County, and all others employed by and/or representing Cumberland County and associated with this project, from any and all claims which such person(s) has, have or may hereafter have arising out of any information contained in this RFP. Any party who intends to submit a response to this RFP is specifically invited to independently verify the accuracy of the information contained herein. NAME OF ORGANIZATION NAME TITLE DATE iii SWACC.Disposal Capacity RFP January 26, 2007 LIST OF ACRONYMS C/D - Construction/demolition waste CERCLA - Comprehensive Environmental Response, Compensation and Liability Act CFR - Code of Federal Regulations gpd - gallons per day MSW - Municipal Solid Waste OSHA - Occupational and Safety Health Administration PADEP - Pennsylvania Department of Environmental Protection RCRA - Resource Conservation and Recovery Act RFP - Request for Proposals SWACC - Solid Waste Authority of Cumberland County tpd - tons per day USEPA - United States Environmental Protection Agency iv . SWACC Disposal Capacity RFP January 26, 2007 A. ADVERTISEMENT FOR PROPOSALS A. ADVERTISEMENT FOR PROPOSALS SOLID WASTE AUTHORITY OF CUMBERLAND COUNTY CARLISLE, PENNSYLVANIA . REQUEST FOR PROPOSALS FOR MUNICIPAL SOLID WASTE DISPOSAL CAPACITY In accordance with Section 272 of the PA Solid Waste Rules and Regulations (as amended), the Solid Waste Authority of Cumberland County has determined that waste disposal capacity for municipal solid waste (MSW), including construction/demolition (C/D) waste and sewage sludge,'generated within the County is required for a period of ten (10) years based upon an initial three (3) year term and renewals thereafter. The Solid Waste Authority of Cumberland County is hereby soliciting proposals for disposal capacity for Cumberland County generated MSW, to begin on May 8, 2007. SOLICITATION FOR MUNICIPAL SOLID WASTE DISPOSAL CAPACITY Sealed proposals will be received by the Office of the Solid Waste Authority, One Courthouse Square, Carlisle, Pennsylvania 17013, until 4:30 p.m., prevailing time, on Tuesday, February 26, 2007. All proposals will be publicly opened by the Solid Waste Authority at 7:00 p.m. on Tuesday, February 26, 2007, at a special meeting of the Authority. On or after January 26, 2007, copies of the Request for Proposals (RFP) may be purchased from the Solid Waste Authority of Cumberland County at one South Hanover Street, Carlisle, PA 17013, (717) 240-6489 by pre-payment of a non-refundable amount of $10, or may be downloaded at no charge by logging onto the internet and visiting the following url: http://www.ccpa.heUcunibei,l@nd/`cwp/view.asp?a=1852&Q=485775. All sealed proposals must include an executed Non-Collusion Affidavit and Proposal Bond as provided in Section D of this proposal package. All proposals must be made on the Proposal Forms and be in accordance with the Instruction to Proposers contained in this Request for Proposals. The Proposer is required to submit one (1) original and three (3) copies of the Proposal to the Solid Waste Authority at the address listed below. Envelopes containing the proposals must be sealed and clearly labeled to show the name and -address of the proposer, the statement "Proposal for Municipal Solid Waste Disposal Capacity" and be addressed to: A-1 SWACC Disposal Capacity RFP January 26, 2007 Solid Waste Authority of Cumberland County One Courthouse Square Carlisle, PA 17013 Attention: Mr. Thomas Imphong, Executive Director Proposers may withdraw their proposal at any time prior to the scheduled closing time for receipt of proposals. Any and all questions, comments, or concerns about this RFP must be directed to the Executive Director, Thomas Imphong, or the Recycling Coordinator, Justin Miller. Questions, comments, or concerns not directed to these contacts will jeopardize the proposer's chances for contract award. The Solid Waste Authority of Cumberland County reserves the right to reject any or -all proposals, to waive any irregularities and/or informalities in any proposal and to make an award in any manner, consistent with applicable laws, which is deemed to be in the best interest of the citizens of Cumberland County. SOLID WASTE AUTHORITY OF CUMBERLAND COUNTY Thomas Imphong, Executive Director A-2 SWACC Disposal Capacity RFP January 26, 2007 B. INSTRUCTIONS TO PROPOSERS B. INSTRUCTIONS TO PROPOSERS SOLID WASTE AUTHORITY OF CUMBERLAND COUNTY CARLISLE, PENNSYLVANIA REQUEST FOR PROPOSALS FOR MUNICIPAL SOLID WASTE DISPOSAL CAPACITY 1. RECEIPT AND OPENING OF PROPOSALS a. The Solid Waste Authority of Cumberland County invites and will receive sealed proposals on the forms included in this Request for Proposals at the Office of the Solid Waste Authority until 4:30 p.m., prevailing time on Tuesday, February 26, 2007. All proposals will be publicly opened and acknowledged by the Solid Waste Authority at 7:00 p.m. on Tuesday, February 26, 2007, at a special meeting of the Authority. b. All proposals must be made on the Proposal Forms included in Section D of this Request for Proposals (RFP).and in accordance with the Instructions to Proposers. Envelopes containing the proposals must be sealed and clearly labeled to identify: (1) The name and address of the Proposer; (2) The statement "Proposal for Municipal Solid Waste Disposal Capacity"; and (3) The Solid Waste Authority of Cumberland County requires that the Proposer submit one (1) original and three (3) copies of the Proposal to the Authority's office at: Solid Waste Authority of Cumberland County One Courthouse Square Carlisle, PA 17013 Attention: Mr. Thomas Imphong, Executive Director 2. SCOPE OF SERVICES The work to be performed under this contract shall consist of providing MSW disposal capacity for the County in accordance with the provisions of this RFP. The Contractor(s) shall be responsible for providing and maintaining a permitted processing and/or disposal facility and. all labor, equipment, materials, tools, insurance, permits, supervision and all other items necessary to process and dispose of MSW in accordance with all applicable Pennsylvania Department of Environmental Protection (PADEP) and United States Environmental Protection Agency (USEPA) rules, regulations and guidelines, B SWACC Disposal Capacity RFP January 26, 2007 or other applicable state regulations if Contractor(s) is located outside of Pennsylvania. The. specific types and quantities of municipal waste materials to be accepted by the Contractor will include only those quantities of acceptable waste generated in Cumberland County. 3. TERMS OF CONTRACT The initial term of the contract shall be for a period of not less than 3 years with options for renewal, up to a total of ten (10) years, thereafter. The Authority shall have the option to renew the contract under the terms and conditions specified in the initial contract. The initial term of the contract shall begin on the date that the Contractor(s) starts providing disposal service for the Authority (May 8, 2007) and shall end on the third year anniversary of that date (May 7, 2010), unless the Authority exercises its right to renew the contract. 4. PREPARATION AND SUBMISSION OF PROPOSALS a. All proposals must be prepared and submitted on the Proposal Forms included in this RFP. The completed Proposal Forms and the other documents shall be submitted as a package in its entirety. b. All proposals must be legibly written in ink or typewritten. All items on the Proposal Forms shall be filled in or the proposal may be rejected by the Authority. C. Except where specifically allowed in the Proposal Forms, no proposal will be considered which is not based on the Contract Specifications contained herein, or which contains any letter or written memorandum qualifying the proposal, or which is not properly completed and signed in writing by an authorized official or representative of the Proposer. d. Any and all questions concerning the proposal must be submitted in writing to the Executive Director, Thomas Imphong, or the Recycling Coordinator, Justin Miller no later than ten days prior to the date that the proposals will be submitted to the Solid Waste Authority.. Any questions so submitted will be responded to at least two (2) days before the date the proposals are submitted to the Solid Waste Authority. e. All sealed proposals must include an executed Non-Collusion Affidavit and Proposal Bond as provided in Section D of this Proposal package. 5. REQUIREMENTS FOR SIGNING PROPOSALS a. Any proposal which is not signed by the individual submitting the proposal must have attached thereto a power-of-attorney evidencing authority to sign the proposal in the name of the person for whom it is signed. B-2 SWACC Disposal Capacity RFP January 26, 2007 b. Any proposal submitted on behalf of a partnership must be signed by all of the partners or by an attorney-in-fact. If signed by an attorney-in-fact, a power-of-attorney evidencing authority to sign the proposal, executed by the partners, shall be attached. C. Any proposal submitted for a corporation must include the following: designate the correct corporate name; bear the corporate seal; be signed by the president or other authorized officer of the corporation; be attested by the secretary or other authorized officer of the corporation; and, disclose all names and addresses of all corporate officers and members of the corporation's Board of Directors- 6. PROPOSAL BOND OR PROPOSAL SECURITY a. A Proposal Bond in the amount of $10,000 is required to be submitted with the Proposal. A Proposal Bond form is included in Section D of this RFP. Any Proposal submitted without a Proposal Bond will not be considered in this proposal process. Failure or refusal to negotiate in good faith or enter into a contract within the specified timeframe will result in forfeiture of the Proposal Bond as liquidated damages to the Authority. The Proposal Bond will not be required from a Proposer who is a municipality (including county) or municipal authority. b. A Non-Collusion Affidavit form is required to be properly and completely filled out. This form is located in Section D. C. Should the Authority select any Proposer(s) to enter into a disposal agreement, then the Proposer shall provide a Performance Bond in an amount determined as specified herein, payable to the Solid Waste Authority of Cumberland County, as a guarantee that the Proposer will fulfill all contractual obligations in good faith and furnish the required Performance Bond as indicated in the contract stipulations. The Performance Bond stipulations are contained in Section E - Contract Specifications. 7. PROPOSER'S RESPONSIBILITY At the time of the opening of proposals, it will be presumed that each Proposer has read and is thoroughly familiarized with the scope of services to be performed under the contract, the terms and conditions of the Contract Specifications, and any other documents included in this RFP. The failure or omission of any. Proposer to .examine any form, instrument or document contained in this RFP shall not relieve the Proposer from any obligation in respect to the proposal submitted. The Proposer agrees that, if a contract is executed with the Authority, the Proposer shall make no claim against the Authority B-3 SWACC Disposal Capacity RFP January 26, 2007 because of any estimate or statements made by any officer or agent of the Authority which may prove to be erroneous in any respect. 8. QUALIFICATIONS AND COMPETENCY OF THE PROPOSERS a. The Authority shall have the right to make such investigations as deemed necessary to determine the ability of the Proposers to perform the services required under the contract. Upon request by the Authority, the Proposer shall furnish and certify all such supporting data and information that the Authority may request to demonstrate the Proposer's qualifications and capabilities to perform the required services over the full term of the contract. b. Proposers may be required to submit sworn statements of their financial responsibility, technical qualifications and performance record prior to the award of any contract. 9. RIGHT TO REJECT The Authority reserves the right to reject any or all proposals and to waive any . informalities or irregularities in any proposals, or in the solicitation process. 10. BASIS OF PROPOSAL EVALUATION AND CONTRACT AWARD(S) .The Authority will conduct a thorough evaluation of all proposals received, and will take. into consideration, but will not be limited to, the capabilities and performance history of the Proposers, the length of any proposed disposal commitment, the relationship between the proposals and the Authority's long-term MSW disposal needs and goals, and the initial and life cycle costs of waste disposal to determine the proposal or proposals, if any, which is deemed to be-in the best interest of the County and its residents. A contract award(s) may not necessarily be made solely on the basis of the lowest tipping fee proposal submitted. 11. ANTICIPATED DATE OF CONTRACT AWARD(S) The. process of evaluating proposals and securing the other contractual arrangements and approvals necessary for the Authority to initiate delivery of any municipal waste to the Proposer's facility under the terms of the contract is expected to be completed by May 7, 2007.. The Authority will require that each Proposer(s) selected for contract negotiations will have executed agreements no later than May 7, 2007. The Authority reserves the right to exclude from further consideration any designated disposal facility to receive waste generated in Cumberland County. Any Proposer(s) eliminated from consideration following the May 7, 2007, deadline will not be included as a selected disposal facility in the revised Cumberland County Municipal Waste Management Plan. The base or first year disposal cost shall be based on commencing the delivery of wastes to the facility on May 8, 2007. Further, the proposed disposal cost structure may be adjustable by an escalation factor annually. No cost proposal may be withdrawn for. a B-4 SWACC Disposal Capacity RFP January 26, 2007 period of twelve (12) months after the date for the receipt of proposals without the advance written consent of the Solid Waste Authority of Cumberland County, and all costs shall be presumed to be valid for this entire period. 12. CONFIDENTIALITY Proposals submitted in response to this RFP may contain technical, financial, or other data whose public disclosure may cause substantial injury to the Proposer's competitive position or constitute a trade secret. To protect this data from disclosure, the Proposer should specifically identify the pages of the proposal that contain such information by properly marking the applicable pages and inserting the following notice in the front of its proposal: NOTICE The data on pages of this proposal, identified by an asterisk (*), stamped "confidential", or marked along the margin with a vertical line, contain technical or financial information which are trade secrets and/or disclosure would cause substantial injury to the Proposer's competitive position. The Proposer requests that such data be used only for the evaluation of its qualifications, but understands that non- disclosure will be limited only to the extent that the Authority determines is proper under state and local law. The Authority assumes no responsibility for disclosure or use of unmarked data for any purpose. In the event properly.marked data is requested, or requested to be disclosed, the Proposer will be advised of the request and shall submit to the Authority within ten (10) days of notification a detailed analysis setting forth the basis for its belief that this information requested is exempt from disclosure under state and local law. The Authority will exercise care in applying this confidentiality standard, but will not be held liable for any damage or injury which may result from any disclosure that may occur. B-5 SWACC Disposal Capacity RFP January 26, 2007 C. BACKGROUND INFORMATION C. BACKGROUND INFORMATION SOLID WASTE AUTHORITY OF CUMBERLAND COUNTY CARLISLE, PENNSYLVANIA REQUEST FOR PROPOSERS FOR MUNICIPAL SOLID WASTE DISPOSAL CAPACITY 1. GENERAL This RFP is being issued by the Solid Waste Authority of Cumberland County, Pennsylvania to solicit proposals to negotiate a contract(s) for disposal capacity for MSW generated in Cumberland County (See Figure 1 - Location Maps) for a period of ten (10) years based upon an initial three (3) year term and renewals thereafter. The initial disposal contract is anticipated to commence on May 8, 2007. The RFP process is in accordance with the Cumberland County Municipal Solid Waste Plan revision process, which is currently being addressed. 2. PURPOSE OF THIS RFP Cumberland County wishes to secure disposal capacity for all MSW generated by its 33 municipalities, as required by 25 PA Code - §Chapter 272. Cumberland County will revise their approved Municipal Solid Waste Management Plan (1997) over the next year, as required by the aforementioned regulatory requirements, to incorporate the outcome of this RFP process. The revision to the Plan will include a "Public Participation" process that includes a public hearing. All Proposers must demonstrate disposal capacity needed for the initial three (3) year contract term with the ability to renew said contract for additional terms thereafter up to a total of ten (10) years. The Proposer's site must presently have, and demonstrate the ability to maintain through the contract period, a valid PADEP, or other state or federal waste disposal facility permit as required by applicable law. There are currently two transfer facilities located within Cumberland County, the Diller Transfer Station and the . Waste Management of Central PA Transfer Station. Proposers to this RFP must be capable of receiving transfer trailer waste deliveries at their facility. C-1 SWACC Disposal Capacity RFP January 26, 2007 FIGURE 1. CUMBERLAND COUNTY MAPS. Commonwealth of Pennsylvania Cumberland County i-8r Municipalities ehnsb 1o F ;' P.._... E 1t3? r r -^`f -'" ?F. ?! """-- •; ?? °f+Aiddlesex ?+? 6 ! Lower ? North S' er H ipdei It _ Upper a rin Lovaer %Frankford,, Frankford Middleton ..? ?t ._ ?P 9 `Sgt 1 Mifflin 1 ?.7s-4R`t r?G 13? ytd6r Upper 2w _ ,k C rhWe M• r'°?1Vest Pennsbor Upper Allei V ewell Monroe - - t?levruille ?, South Nebury North ,. e Middleton - r^ Newlo?:f?3o Penn _ llilti; 1. Camp Hill S 2. Lemoyne x -- t`,';` FtollySprings " Dickinson 10 / 3. Mechanicsburg l - vVloh t• " 4. New Cumberland : -_ Ship>PnsburyTvjp 5. Shiremanstown 6. Wormleysburg Shippe'nsli y Boro t Cooke '? t - Railroads Southampton N Interstates Roads z o 2 a Miles „..'Boroughs - - - f Municipalities C-2 SWACC Disposal Capacity RFP January 26, 2007 It is the intention of the County to allow each waste hauler operating within Cumberland County pursuant to 25 PA Code - §272 the option of transporting and disposing of its waste at one or more disposal sites throughout the contract period. Thus the Authority will not guarantee municipal waste quantities to any one facility. The Authority intends to develop disposal contracts with multiple, permitted solid waste disposal facilities. Only facilities approved by and under contract to the Solid Waste Authority will be permitted to accept Cumberland County generated municipal waste. Sewage sludge and C/D wastes are included in this RFP process. The Authority will ask for price information within the RFP questionnaire forms for sewage sludge and C/D waste disposal in Section D. 3. DISPOSAL TONNAGES Cumberland County disposed of 187,673 tons of MSW (excluding C/D waste) in 2005. Construction/demolition waste disposed at permitted disposal sites originating from Cumberland County was 41,426 tons in 2005. According to the Pennsylvania State Data Center, the County's population was estimated to be 223,089 on July 1, 2005. 4. SELECTION PROCESS This RFP solicitation represents the first in a two-step process leading to the award of a waste disposal contract(s) with the Authority. Proposals will be reviewed by the Authority and its consultant. The Authority may select preferred Proposers for the second- step negotiation process solely on the basis of proposal submissions. Interviews may or may not be conducted for this RFP. The second step in the procurement process will be negotiations with a Proposer(s) that has been selected as a result of a favorable review, in the collective independent judgment of the Authority and its consultant, based on the proposal submitted in response to this RFP. If a Proposer is selected under the selection process set forth in the RFP, and ultimately enters into a contract as a result of contract negotiations contemplated under the RFP,-the Proposer shall agree and acknowledge that any existing contract between the Proposer and Authority is thereby rendered null and void. 5. EVALUATION PROCEDURE All evaluation data shall be confidential information retained by the Authority. No requests for information on the evaluated data and procedures will be honored by the Authority. Any interviews will be held with the express understanding that there will be no claims whatsoever for reimbursement from the Authority for the associated costs or expenses of the Proposers. C-3 SWACC Disposal Capacity RFP January 26, 2007 Evaluation of the proposals will be based upon, but not limited to, a number of general evaluation criteria which reflect the needs of Cumberland County, which are listed as follows: • The cost of disposal per ton for MSW in comparison with other Proposers. • Appropriateness of the basis for tipping fee escalation. • The fee amounts proposed and required pursuant to Section 1301 of PA Act 1988-101, the RFP, or other applicable state or federal regulations. Ability to accept. municipal sewage sludge. • Ability to accept C/D waste. • Sufficiency of daily disposal capacity for current obligations of facility including proposed Cumberland County waste. • Sufficiency of facility volume capacity (air space), including degree of non- dependence on additional permit approvals, for initial 3 years of proposed contract, and thereafter. • Willingness to specifically reserve air space or capacity at the facility for Cumberland County waste. • Willingness to enter into a contract for the term (length) of service stipulated in RFP. • Willingness to permit flexibility in volume of waste deliveries for disposal (without put-or-pay or other punitive restrictions). • Contingency plans for continued waste disposal in the event of reduction in facility daily disposal rate. • Regulatory compliance history. • Extent of proposed deviations from Contract Specifications in RFP. • Overall capabilities of the Proposer to provide the requested waste disposal services. • Present compliance with federal and state laws and regulations and with all applicable Cumberland County ordinances and regulations. In addition to the general evaluation criteria listed above, the Authority will take into consideration such other factors that are deemed to be in the best interest of the County and its residents. C-4 SWACC Disposal Capacity RFP January26, 2007 6. PROJECT SCHEDULE Significant project development and implementation activities are expected to be completed in accordance with the following timetable: Release Request for Proposals -January 26, 2007 Submission of Proposals February 26, 2007 Opening of Proposals February 26, 2007 Review and Evaluate Proposals February 27 - March 12, 2007 SWACC Plan Revision Committee Recommendations March 12, 2007 Authority Action on Proposals March 12, 2007 Negotiations and Execution of Disposal March 13 - May 1, 2007 Contracts with Selected Proposer(s) and Other Contractual Arrangements and Approvals New Disposal Contract(s) Commencement Date May 8, 2007 C-5 SWACC Disposal Capacity RFP January 26, 2007 D. QUALIFICATION QUESTIONNAIRE AND PRICE PRCPCSSAL D. PRICE PROPOSAL AND QUALIFICATION QUESTIONNAIRE SOLID WASTE AUTHORITY OF CUMBERLAND COUNTY CARLISLE, PENNSYLVANIA PR0POSAl- FOR MUNICIPAL SOLID WASTE DISPOSAL CAPACITY 1. CONTRACT TERM This proposal is based upon the Proposer entering into a contract with the Authority for an initial term of three (3) years for the processing and/or disposal of municipal waste generated in Cumberland County, Pennsylvania. At the Authority's option, the contract may be renewed thereafter for additional terms up to a total of ten (10) years. The Authority must provide written notice of their intent to exercise this option as stated in the initial contract terms. 2. CONTRACT SURCHARGE As consideration for entry into this contract, the Contractor shall agree to incorporate a. surcharge of $2.50 on every ton of Cumberland County MSW, including C/D. This surcharge shall be remitted to SWACC to offset the operational costs associated with the execution and administration of the Cumberland County Municipal Waste Management Plan. The Authority will assess a surcharge of $2.50 on every ton of Cumberland County generated MSW (including C/D waste, excluding sewage sludge) received at municipal waste disposal facilities designated in the Plan. The surcharge shall be paid by the disposal facility accepting Cumberland County generated MSW; however, nothing in these provisions shall prevent the disposal facility from incorporating the surcharge into their tipping fee. The surcharge shall be paid on a monthly basis and shall be equal to the total tons of Cumberland County generated MSW accepted at the facility during a calendar month multiplied by $2.50. This consideration or surcharge shall be paid directly to the Solid Waste Authority of Cumberland County and shall be used by SWACC solely for the purpose of executing and administrating the Cumberland County Municipal Waste Management Plan, including payment of SWACC staff salaries and SWACC waste management and special waste handling program costs not covered by Commonwealth of Pennsylvania grant money but incurred as a direct result of execution of the Plan. The Authority will make available, upon request, an annual operations report detailing the execution of the Cumberland County Municipal Waste. Management Plan, including expenses and revenue. Only those facilities that have consummated a contract will be designated as a disposal facility in the Cumberland County Municipal Waste Management Plan. If ratified by 51% of Cumberland County's municipalities and approved by the Pennsylvania Department of Environmental Protection, the Cumberland County Municipal Waste D-1 SWACC Disposal Capacity RFP January 26, 2007 Management Plan will become a legally binding document. Enforcement of the Plan's designated disposal facilities shall rest with the Pennsylvania Department of Environmental Protection. Facilities that accept Cumberland County generated municipal waste, but are not named in the Cumberland County Municipal Waste Management.Plan, will be subject to the Pennsylvania Department of Environmental Protection's provisions. The Proposer is required to include all applicable state and. local fees and surcharges in their Price Proposal Fnr disposal facilities located in Pennsylvania theca shall include the following: • $4.00 per ton - PADEP Growing Greener Fee ° $2.00 per ton - PADEP Recycling Fee • $1.00 per ton - PADEP Host Municipality Benefit Fee • $0.25 per ton - PADEP Environmental Stewardship Fee • $2.50 per ton - SWACC Contract Surcharge 3. TYPES AND ESTIMATED QUANTITIES OF WASTE TO BE ACCEPTED The Proposer shall specify the types and quantities of municipal waste from Cumberland County that will be accepted for processing or disposal during the term of the contract specified herein. a. For disposal of MSW, excluding sludges and C/D waste materials: (1) Bulky wastes will be accepted: Yes No. (2) Specify limits, if any, to the municipal waste quantities that will be accepted: If No Specified Maximum Limits (Check Here) Maximum per Operating Day Tons/Week Maximum per Operating Week Tons/Week Maximum per Operating Year Tons/Year b. For disposal of C/D wastes: (1) C/D waste will be accepted? Yes No (2) Specify limits, if any, for the amount of C/D waste to be accepted: If No Specified Maximum or Minimum Limits (Check Here) Maximum per Operating Day Tons/Week Maximum per Operating Week Tons/Week Maximum per Operatic Year i ons,`Year D-2 SWACC Disposal Capacity RFP January 26, 2007 C, For disposal of sludges: (1) Sludges will be accepted: Yes No (2) Specify limits, if any,. for the quantities of sludge that will be accepted: If No Specified Maximum or Minimum Limits (Check Here) Maximum per Operating Day Tons/Week Maximum per Operating Week Tons/Week Maximum per Operating Year Tons/Year Minimum Sludge Characteristics Requirement (optional): d. For disposal of other types of waste not identified above, please identify and list maximum quantities which would be accepted from Cumberland County, Pennsylvania. Waste Maximum Daily Maximum Weekly Maximum Annual Type Tons Accepted Tons Accepted Tons Accepted 4. PROPOSED RATE SCHEDULE FOR WASTE DISPOSAL The proposed tipping fee shall include all state and local fees and contractual surcharges as part of the Proposers maximum, not to exceed, per ton disposal fee provided in the following section. a. For disposal of MSW, excluding sludges and C/D wastes as specified herein: (1) First Year Unit Cost (5/8/07 -.5/7/07) $ Per Ton (2) Specify fixed unit cost or proposed method of rate escalation for each. year of the contract: D-3 SWACC Disposal Capacity RFP January 26, 2007 Year 2 $ Year 3 $ Year 4 $ Year 5 $ Year 6 $ or, Escal Year 7 $ Year 8 $ Year 9 $ Year 10 $ ation Factor (for maximum 10 years) b. For disposal of C/D wastes, if applicable: (1) First Year Unit Cost (5/8107 - 5/7/07) $ Per Ton (2) Specify fixed unit cost or proposed method of rate escalation for each year of the contract: Year 2 $ Year 7 $ Year 3 $ Year 8 $ Year 4 $ Year 9 $ Year 5 $ Year 10 $ Year 6 $ or, Escalation Factor (for maximum 10 years): D-4 SWACC Disposal Capacity RFP January 26, 2007 C. For disposal of sewage sludges, if applicable: (1) First Year Unit Cost (5/8/07 - 5/7/07) $ Per Ton (2) Specify proposed method of rate escalation or fixed unit cost for each year of the contract: Year 2 $ Year 7 $ Year 3 $ Year 8 $ Year 4 $ Year 9 $ Year 5 $ Year 10 $ Year 6 $ or, Escalation Factor (for maximum 10 years): (3) Specify the adjustment in unit cost for variations in sludge characteristics (if applicable): d. For disposal of other types of wastes listed in Section D.3.d, identify the tipping fee rate structure which would be used (first year cost, escalation rates or future year fixed costs). e. Proposers acknowledge that the costs presented above reflect an anticipated first year of operation under the contract starting in May 2007. D-5 SWACC Disposal Capacity RFP January 26, 2007 5. COMPANY EXPERIENCE AND OPERATING HISTORY a. A .general landfill and resource recovery facility questionnaire is.included at the end of this section. For each Proposer, this questionnaire should be completely filled out and returned as part of the proposal package. b. Present information on past or pending lawsuits and Iregulatory jactions against Proposer which may.have a material impact on Proposer's ability to perform under this contract, and list any fines and/or penalties that have been imposed on you by the PADEP, or federal and other state agencies on any solid waste facility that you have had permitted over the past five years (attach separate sheets, if necessary). Company Obligations - List any obligations which Proposer has made or intends to make which will commit processing and/or disposal capacity at the proposed site to parties other than the Solid Waste Authority of Cumberland County. Include host community disposal obligations which may be required under 25 PA Code §272 or other state and federal regulations (attach additional sheets, if necessary). d. Strength of Commitments and Contingency Plans - Provide. descriptive information on the following matters (attach separate sheets for response, if necessary). (1) Confirmation of available disposal capacity at a disposal facility which currently has and will. maintain, through the contract period, proper, processing and disposal permits. (2) Confirmation of transfer trailer accessibility to the proposed disposal facility. (3) Information on financial strength of Proposer to support the operations of the disposal facility. (4) Position of the Proposer regarding specific reservation of air space or capacity at disposal facility for duration of the contract term. D-6 SWACC Disposal Capacity RFP January 26, 2007 (5) Contingency plans for continued disposal of waste in the event of reduction in waste disposal capacity at the proposed disposal facility. (6) Ability and willingness of Proposer to accept variations in rates of waste delivery from Cumberland County. e. Deviations or Exceptions to Contract Specifications - The Solid Waste Authority will provide a standard contract agreement to each Proposer selected for contract negotiations. This standard agreement is intended to reduce the time period for contract negotiations. The Authority does not intend to deviate from this standard agreement. If this proposal is premised upon any deviation, qualification and/or exception to the standard terms and conditions of the Contract Specifications section of this Request for Proposals, the Proposer must cite such deviations and/or exceptions in the following section (attach separate sheets, if necessary). D-7 SWACC Disposal Capacity RFP January 26, 2007 6. CONSIDERATION OF TERMS AND CONDITIONS OF RFP To: Solid Waste Authority of Cumberland County One Courthouse Square Carlisle,- Pennsylvania 17013 Attn: Mr. Thomas Imphong, Executive Director From: (Name of Firm) (Mailing Address) (Contact Person) (Telephone Number) The undersigned having carefully read and considered the terms and conditions of the Contract Specifications and other documents contained in this RFP package, and being familiar with the local conditions affecting the cost of the work, does hereby propose to furnish all labor, equipment, materials, tools, insurance, permits supervision and all other items necessary to provide municipal waste disposal capacity in accordance with the Contract Agreement under the conditions and rates hereinafter set forth. .b. In submitting this proposal, it is understood that the Solid Waste Authority of Cumberland County. reserves the right to reject any or all proposals, to waive any informalities in any proposal or the solicitation process, and to negotiate any final contract provisions based on the proposals submitted. C. In submitting this proposal, the undersigned agrees that no Price Proposal may be withdrawn for a period of twelve (12) months after the date for receipt of Proposals and that all Price Proposals shall be valid for this entire period, subject to cost escalation adjustment as identified, unless advance written consent for such withdrawal is granted by the Solid Waste Authority of Cumberland County. Date: (Name of Firm) ATTEST: Corporate Secretary By: Title: AFFIX CORPORATE SEAL D-8 SWACC Disposal Capacity RFP January 26, 2007 7. PROPOSAL FORM FOR MUNICIPAL SOLID WASTE DISPOSAL CAPACITY COUNTY OF CUMBERLAND TO: Solid Waste Authority of Cumberland County Date: One Courthouse Square Carlisle, Pennsylvania 17013 PROPOSER: Name Address The undersigned has examined the Advertisement for Proposals, Instructions to Proposers, Background Information, Price Proposal and Qualification Questionnaire, Proposal Bond, and Contract Requirements contained in the solicitation of the Solid Waste Authority of Cumberland County, dated February 2007. Enclosed as Proposal Security is a Proposal Bond or a certified or cashier's check drawn to the order of the County of Cumberland in the amount of $10,000. This Proposal is. genuine and not made in the interest of or on behalf of any undisclosed person, firm or corporation. This Proposal is not submitted in conformity with any agreement or understanding with any other Proposer. Proposer has not directly or indirectly induced or solicited any other Proposer to submit a false or sham Proposal. Proposer has not solicited or induced any Person to refrain from proposing. Proposer has not sought by collusion to obtain for itself or to provide to any other Proposer any advantage over any other Proposer or over the Solid Waste Authority. If awarded the Contract, the undersigned Proposer agrees to enter into and perform the contract and to execute and deliver the Contract Documents, including the required Certificate of'lnsurance and Performance Bond, to the Authority in accordance with all of the terms of this solicitation. D-9 SWACC Disposal Capacity RFP January 26, 2007 Date: PROPOSAL BOND 1. The undersigned ("Principal") and a surety company legally authorized to do business in the Commonwealth of Pennsylvania ("Surety"), if appropriate, to induce the Solid Waste Authority of Cumberland County ("Beneficiary") to enter into a contract for the reservation of disposal capacity, pursuan t to the Beneficiary's solicitation dated , agree that in the event the Principal shall (a) attempt to withdraw from the proposal process, (b) fail to execute the contract and (c) fail to provide a Performance Bond (when required), and a certificate of insurance upon award of the contract, then the Principal shall, upon demand of the Beneficiary, pay to the Beneficiary the sum of $10,000, which is a reasonable estimate of fair compensation for the losses and damages, all of which would be impracticable if not impossible to fix precisely, that the Beneficiary will sustain upon the occurrence of any event described in clause (a), (b) or (c) above. 2. In the event the Beneficiary shall institute legal proceedings to collect amounts due pursuant to this Bond, then the Beneficiary shall be entitled to collect, in addition to the amount of this Bond, as part of any award or judgment, all court costs, other expenses and attorney's fees for collection incurred by the Beneficiary. 3. If no prior demand for payment has been made by the Beneficiary this Bond shall terminate on commencement of contract, unless mutually agreed upon by both parties to extend said bond. If a demand for payment is made prior to such date, then this bond shall continue in full force and effect until paid in full. Principal Attest: By: (SEAL) Signature [Corporate Seal] Name/Title Surety Attest: By: (SEAL) Signature [Corporate Seal] Attorney-in-Fact (Attach General Power of Attorney) D-10 SWACC Disposal Capacity RFP January 26, 2007 NON-COLLUSION AFFIDAVIT STATE OF COUNTY OF I state that I am of (Name of my firm) and that I am authorized to make this affidavit on behalf of my firm, and-its owners, directors, and officers. I am the person responsible in my firm for the price(s) and the amount of this proposal. I state that: 1. The price(s) and amount of this Proposal have been arrived at independently and without consultation, communication or agreement with any other contractor, Proposer or potential Proposer. 2_ Neither the price(s) nor the amount of the Proposal, and neither the approximate price(s) nor approximate amount of this proposal, have been disclosed to any other firm or person who is a Proposer or potential Proposer, and they will not be disclosed before Proposal opening. 3. No attempt has been made or will be made to induce any firm or person to refrain from proposing on this contract, or to submit a Proposal higher than this proposal, or to submit any intentionally high or noncompetitive Proposal or other form of complementary proposal. 4. The Proposal of my firm is made in good faith and not pursuant to any agreement or discussion with, or. inducement from, any firm or person to submit a complementary or other noncompetitive proposal. 5_ (Name of my firm), its affiliates, subsidiaries, officers, directors and employees are not currently under investigation by any governmental agency and have not in the last five (5) years been convicted or found liable for any act prohibited by state or federal law in any jurisdiction, involving conspiracy or collusion with respect to proposing on any public contract, except as follows: I state that (Name of my firm) understands and acknowledges that the above representations are material and important, and will be relied on by the Solid Waste Authority of Cumberland County in awarding the contract(s) for which this proposal is submitted. I understand and my firm understands that any misstatement in this affidavit is and shall be treated as fraudulent concealment from the Solid Waste Authority of the true facts relating to _the submission of Proposals for this contract. 1 understand and my firm understands that any fraudulent concealment will allow the Authority to pursue all applicable remedies at law or equity included, but not limited to, the right to reject this.Proposal. Sworn to and Subscribed Name before me this day of - 2007. Company Position Notary Public My Commission Expires: D-11 SWACC Disposal Capacity RFP January 26, 2007 CUMBERLAND COUNTY, PENNSYLVANIA MUNICIPAL WASTE MANAGEMENT PLAN LANDFILL QUESTIONNAIRE A. BACKGROUND INFORMATION 1. Date: 2. Name of Landfill: 3. Name of Owner of Landfill: 4. Address and Phone Number of Owner: 5. Address of Landfill (if different from above): 6. Contact Person: Phone: 7. Person Supplying Information: Title: 'Phone: Title: 8. Road Directions to Landfill from Carlisle Borough, Cumberland County, PA: B. PERMIT INFORMATION Please complete the following for the portion of the site for which an approved PADEP municipal waste disposal permit or permit from state(s) outside of Pennsylvania has been obtained. Questions regarding proposed expansions are asked in a separate section of the questionnaire. 9. Permit Number: 10. Permit Site Acreage 11. Permitted Capacity 12. Permitted Capacity acres. Disposal Area tons/cubic yards. years. acres. SWACC Disposal Capacity RFP D - 12 January 26, 2007 13. Waste Types and Quantities (2005) Please identify: 1) the maximum and average daily permitted quantities (in tons) of each of the listed types of waste, 2) the expected annual tonnage of each type of waste, and 3) current tipping fees charged for waste deliveries. Waste Type Municipal Waste, other than types listed below Residual Waste Infectious and Chemotherapeutic Incinerator Ash Asbestos Construction / Demolition Waste Sewage Sludge Minimum % Solids of Sewage Sludge Other (please specify) 14. Of the, area which is subject to the permit, what is the estimated total available disposal capacity between May 8, 2007 and final closure? Approximately tons over years. Permitted Permitted Expected Current Maximum Average Annual Tipping Fee Daily Tons Daily Tons Tons (specify ton or cubic yard) oL SWACC Disposal Capacity RFP D - 13 January26, 2007 C. DESCRIPTION OF FACILITY (add additional pages, if needed) 15. Please describe the liner system of your facility's permitted operations. (a). Primary Liner: (check those that apply) ? Synthetic membrane Thickness = mils Material ? Remolded clay Thickness = mils Permeability cm/sec ? Other (b) Secondary Liner: ? Synthetic membrane Thickness = mils Material ? Remolded clay Thickness = mils Permeability cm/sec ? Other (c) What portions of this system are currently in place? 16. Leachate Collection, Leachate Recirculation (if applicable), and Treatment Method, currently permitted and in operation. 17. Please list any current or expected site access restrictions to transfer trailers or other vehicles (bridges, road limitations, trade, etc.) 18. Do you provide any processing or other handling of recyclables at your facility? If yes, please explain SWACC Disposal Capacity RFP D - 14 January 26, 2007 If no, what plans do you have to add recyclables handling and processing at your facility? D. EXPANSION PLANS Please summarize your expansion plans-in narrative form. Indicate status of design and permit requirements, and expected date of initial, operation of expansion. 19. Expected Waste Types MSW Residual Waste Infectious and Chemotherapeutic Incinerator Ash Asbestos C/D Wastes Sewage Sludge Other (please specify) 20. Additional Capacity Estimated Annual Quantity to be Processed or Disposed (tons/cubic yards) Expected Total Capacity (tons or cubic yards). Expected Lifetime (yrs.) Expected Start of Expansion Development _ Start of Operations Date Percent of Total Quantity D SWACC Disposal Capacity RFP - 15 January 26, 2007 CUMBERLAND COUNTY, PENNSYLVANIA MUNICIPAL WASTE MANAGEMENT PLAN RESOURCE RECOVERY OR OTHER PROCESSING FACILITY QUESTIONNAIRE A.. BACKGROUND INFORMATION 1. Date: 2. Name of Facility: 3. Type of Facility: Resource Recovery (Waste-to-Energy) ; MSW Composting ; CID Processing ; Other (describe) 4. Name of Owner of Facility: 5. Address of Facility: 6. Contact Person: Phone: Title: 7. Person Supplying Information: Title: Phone: 8.. Road Directions to Facility from Carlisle Borough, Cumberland County, PA: B. PERMIT" INFORMATION For purposes of this section, describe the current permit conditions. The next section will request information regarding planned changes. 9. Permit Number: 10. Permitted Capacity tpd Theoretical design capacity tpd Maximum continuous rating (MCR) tpd SWACC Disposal Capacity RFP D - 16 January26, 2007 Available processing capacity tpd tpy 11. Waste Types and Quantities (2005) Please identify: 1) the maximum and average daily permitted quantities (in tons) of each of the listed types of waste, 2) the expected annual tonnage of each type of waste, and 3) current tipping fees charged for waste deliveries (or projected fees, if facility is not currently in operation). Permitted Permitted Expected Current Waste Type Maximum -Average Annual Tipping Fee Daily Tons Daily Tons Tons. (specify ton or cubic yard) Municipal Waste, other than types listed below Residual Waste Infectious and Chemotherapeutic Construction I Demolition Waste Sewage Sludge Minimum % Solids Other (please specify) 12. Has the facility submitted or is the facility preparing an application for a municipal waste permit modification? ? Yes ? No If yes, indicate the significant changes from the current permit. 1.3. Please summarize any plans to expand facility capacity and any other plans for. significant changes not described elsewhere in this questionnaire. SWACC Disposal Capacity RFP D - 17 January 26, 2007 C. DESCRIPTION OF FACILITY (add additional pages if needed) 14. Briefly describe the current materials receiving and handling procedures. include a description of bypass waste separation and handling procedures. 15. Please describe the facility's current air pollution control methods. CEMS fabric filter I baghouse dry scrubber Electrostatic precipitator, number of fields = wet scrubber other: Odor Control: chemical scrubber; biofilter; other. 16. Do you plan to change or add to air pollution control practices? If so, please describe. 17. Please describe the current bypass waste disposal practices. Indicate whether there are firm agreements with the disposal facility for receipt of this material. Also, indicate the percentage, by weight, of incoming waste that is bypassed. 18. Please describe plans for future bypass waste disposal practices. SWACC Disposal Capacity RFP D - 18 January 26, 2007 19. Please describe current residue treatment and disposal practices. Indicate whether agreements are in place or anticipated for ash disposal. Also, indicate (for resource recovery facilities) the estimated quantity of fly ash and bottom ash as percents, by weight, of waste throughput (excluding bypass). 20. Please describe plans for future residue treatment and disposal practices, if different . from above. 21. Do you provide any processing or other handling of recyclables at your facility? If yes, please explain If no, what plans do you have to add recyclables handling and processing at your facility? 22. Describe the quantity and types of recovered products (e.g. energy, compost, metals, wood products) from your facility and associated marketing arrangements or contracts. 23. Describe any other pertinent information on the facility or its operations below. D SWACC Disposal Capacity RFP - 9 January 26, 2007 SWACC Disposal Capacity RFP D - 20 January 26, 2007 E. RECOMMENDED MUNICIPAL WASTE DISPOSAL CONTRACT SPECIFICATIONS E. MUNICIPAL WASTE DISPOSAL CONTRACT SPECIFICATIONS SOLID WASTE AUTHORITY OF CUMBERLAND COUNTY CARLISLE, PENNSYLVANIA REQUEST FOR PROPOSALS MUNICIPAL SOLID WASTE DISPOSAL CAPACITY CONTRACT SPECIFICATIONS 1. DEFINITIONS Unless the context clearly indicates otherwise, the following words and terms, as used in this Request for Proposals, shall have the following meanings: Authority - Solid Waste Authority of Cumberland County. PA. Bulky Waste (White Goods) - Large items of refuse, including but not limited to, appliances, furniture, auto parts, trees, branches or stumps which may require special handling due to their size, shape or weight. Commercial Waste - All solid waste originating from commercial establishments engaged in nonmanufacturing or nonprocessing business, including, but not limited to, stores, markets, office buildings, restaurants, shopping centers and theaters. Construction/Demolition or CID Waste. - Solid waste resulting from the construction or demolition of buildings and other structures, including, but not limited to, wood, plaster, metals, asphaltic substances, bricks, block and unsegregated concrete. Contractor - The individual, firm, partnership, joint venture, corporation, or association providing MSW disposal capacity under contract with the County. County - The County of Cumberland, PA. Department or PADEP - The Pennsylvania Department of Environmental Protection (DEP) . Domestic or Residential Waste - Solid waste comprised of garbage and rubbish which normally originates from residential households or apartment houses. . Garbage - Putrescible animal or vegetable wastes resulting from the handling, preparation, cooking, serving or consumption of food and food containers. E-1 SWACC Disposal Capacity RFP January26, 2007 Hauler or Waste Collector - Any person, firm, partnership; association or corporation-, including any municipality, engaged in the business of collecting and transporting_MSW to processing or disposal facilities. Hazardous Waste - Waste which, by reason of its composition or characteristic, is toxic or hazardous waste as defined in the Resource Conservation and Recovery Act (RCRA) of 1976, Subtitle C, 42 USC §6901 et sea., regulations issued thereunder; Act 97, regulations issued ironmental Response, Compensation land Liability IAct'(CERCLA)I Comprehensive Env or any analogous federal.,. state or local law, all the foregoing as now in effect or as may hereafter be amended. Institutional Waste - Solid waste originating from institutions including, but not limited to, public buildings, hospitals, nursing homes, orphanages, schools and universities. -Leaf Waste - Leaves, garden residues, shrubbery and tree trimmings, and similar material, but not including grass clippings. Municipal Recycling Program - A source separation and collection program for recyclin . g municipal waste, or a program for designated drop-off points or collection centers for recycling municipal waste, that is operated by or on behalf of a county or municipality. The term shall include any source separation and collection program for composting leaf waste that is operated by or on behalf of a county or municipality. Municipality : Any city, borough, incorporated town, township, or county or any municipal authority created by any of the foregoing. Municipal Waste or Solid Waste - Garbage, refuse, industrial lunchroom or office waste and other material, including solid, liquid, semi-solid or contained gaseous material resulting from operation of residential, municipal, commercial or institutional establishments or from community activities; and any sludge not meeting the definition of residual or hazardous waste from a municipal, commercial, or institutional water supply treatment plant, wastewater treatment plant or air pollution control facility. Operator A person or municipality that operates a MSW processing or disposal facility. Owner - The person or municipality who is the owner of record of a solid waste processing or disposal facility or part of a facility. . Permit - A permit issued by the Pennsylvania Department of Environmental Protection to operate a municipal waste disposal or processing facility. Permit Area - The area of land and water within the boundaries of the permit, which is designated on the permit application maps as approved by PADEP. E-2 SWACC Disposal Capacity RFP January 26, 2007 Recycling - The collection, separation, recovery and sale or reuse.of metals, glass, paper, leaf waste, plastics and other materials which would otherwise be disposed or processed as municipal waste. Refuse - Discarded waste materials in a solid or semi-liquid state, consisting of garbage, rubbish or a combination thereof. Remaining Permitted Capacity - The weight or volume of municipal waste that can be disposed at a permitted municipal waste disposal or processing facility. T he term shall only include the weight or volume capacity for which the Department has issued a permit. Residual Waste - Any garbage, refuse, other discarded material or other waste, including solid, liquid, semi-solid or contained gaseous material resulting from industrial, mining and agricultural operations and any sludge from an industrial, mining or agricultural water supply treatment facility, wastewater treatment facility or air pollution control facility; if it is not hazardous. Resource Recovery Facility - A facility that provides for the extraction and utilization of materials or- energy from municipal waste that is generated off-site, including, but not limited to, a facility that mechanically extracts materials from municipal waste, a combustion facility that converts the organic fraction of municipal waste to usable energy and any chemical or biological process that converts municipal waste into a fuel product or other usable material. The term does not include methane gas extraction from a municipal waste landfill, nor any separation and collection center, drop-off point or collection center for recycling municipal waste, or any source separation or collection center for composting leaf waste. Sewage Sludge - The coarse screenings, grit and dewatered or air-dried sludges, septic and' holding tank pumpings and other residues from municipal and residential sewage collection and treatment systems. Municipal Waste or Sanitary Landfill -.A facility using land for disposing of municipal waste. The facility includes land affected during the lifetime of operations including, but not limited to, areas where disposal or processing activities actually occur, support facilities, borrow areas, offices, equipment sheds, air and water pollution control and treatment systems, access roads, associated onsite and contiguous collection, transportation and storage facilities, closure and postclosure care and maintenance activities and other activities in which the natural land surface has been disturbed as a result of or incidental to operation of the facility. The term does not include a C/D waste landfill or a facility for the land application of sewage sludge. Stabilized Sewage Sludge - Sewage sludge that has been treated to reduce odor potential and the number of pathogenic organisms. Treatment methods include anaerobic and aerobic digestion, composting, lime stabilization and chlorine stabilization. Tipping Fee - The schedule of fees established by the owner or operator of a transfer station, sanitary landfill, resource recovery or disposal facility for accepting various types of solid waste delivered for processing or disposal. E-3 SWACC Disposal Capacity UP January 26, 2007 2. SCOPE OF CONTRACT a. Effective Date The contract shall become effective on the day of execution stated in said contract. The Contractor shall begin providing municipal waste disposal capacity for the Authority on the date mutually agreed upon in the contract (tentatively set for May o, 20vi ). b. Term of Contract The initial term of the contract shall be for a period of three (3) years and the Authority shall have the option to renew the contract for additional terms thereafter up to a total of ten (10) years. The term of the contract shall begin on the date that the Contractor begins providing disposal capacity for the Authority and shall end on the third anniversary of that date, unless the Authority has exercised its right to renew the contract or agreed to an alternate contract period. A subsequent contract term anniversary date and renewal options will be treated in a similar manner. The Authority shall have the sole discretion to exercise its right to renew the contract at the designated anniversary date. C. Compliance With Applicable Laws The parties to the contract agree that the laws'of the Commonwealth of Pennsylvania shall govern the validity, construction, interpretation and effect of the contract. The Contractor shall conduct the service of municipal waste disposal as provided for by the contract in compliance with all applicable federal and state regulations and laws. The contract and the work to be performed as described herein is also subject to the provisions of all pertinent County ordinances which shall be made a part hereof with the same force and effect as if specifically set out herein. d. Breach of Contract If the Contractor fails to perform, or to perform in a satisfactory manner, or to perform in accordance with applicable state and/or federal regulations, the Authority shall have the right to demand in writing adequate assurances from the Contractor that steps have been or are being taken to rectify the situation. Within ten (10) days of receipt of any such demand, the Contractor must submit to the Authority a written statement that explains the reasons for the non-performance or delayed, partial or substandard performance during that period and any continuance thereof. The Contractor shall also have the option to present an explanation before the entire Solid Waste Authority Board. Upon receipt of the Contractor's statement or the failure of the Contractor to submit a statement, the Authority may, except under the conditions of Force Majeure as defined herein, vote to terminate the contract. E-4 SWACC Disposal Capacity RFP January 26, 2007 e. Liquidated Damages (1) It is hereby understood and mutually agreed, by and between the Contractor and the Authority, that the municipal waste disposal services to be performed under the contract are vital for the protection of public health and welfare, and it is further understood and agreed that the services to be performed under the contract will be commenced on the date specified in the contract. (2) If the Contractor neglects, fails or refuses to provide the waste disposal capacity in accordance with the terms and provisions of the contract, then the Contractor does hereby agree, as a part consideration for the awarding of the contract, to pay to the Authority an amount to be determined as hereinafter set forth, not as a penalty, but as liquidated damages for such breach of contract for each and every calendar day that. the Contractor is in default. (3) The amount of the liquidated damages shall be equal to any additional total waste disposal cost (i.e. disposal cost in excess of the amount that the Authority normally would have paid for the disposal of the same amount of waste at the .Contractor's facility under the contract), if any, plus any additional total waste transportation cost (i.e. transportation cost in excess of the amount that the Authority normally would have paid for transporting the same amount of waste to the Contractor's facility), if any, that the Authority has incurred for disposal of the municipal waste at an alternative processing and/or disposal facility. (4) The Contractor shall not be responsible for the payment of any liquidated damages whenever the Authority determines that the Contractor was without fault and the Contractor's reasons for the breach of contract are acceptable. Furthermore, the Contractor shall not. be responsible for any liquidated damages under the conditions of Force Majeure as defined herein. Force Majeure Neither the Contractor nor the Authority shall be liable for the failure to perform their duties and obligations under the contract or for any resultant damages, loss, expense,, etc., if such failure was the result of an act of God, riot; insurrection, war, catastrophe, natural disaster or any other cause which was beyond reasonable control of the Contractor or the Authority and which the Contractor or Authority was unable to avoid by exercise of reasonable diligence. g. Assignment of Contract E-5 SWACC Disposal Capacity RFP January 26, 2007 No assignment of the contract or any right accruing under the contract shall be made in whole or in part by the Contractor without prior express written approval by the Authority. The delegation of any contract duties will not relieve the Contractor of any liability and/or obligation to perform. In the event of any delegation of a duty, the delegate shall assume full responsibility and liability for performance of that duty without affecting the Contractor's liability. h. Change of Ownership In the event of any change of control or ownership of the Contractor's facilities, the Authority shall maintain the right to hold the original owner solely liable. However, the Authority, at its option, may determine that the new ownership can adequately and faithfully perform the duties and obligations of the contract for the remaining term of the contract, and elect to execute a novation, which will allow the new ownership to assume the rights and duties of the contract and release the former ownership of all obligations and liabilities. The new ownership would then be solely liable for the performance of the contract and any claims or liabilities under the contract. Waivers A waiver by either party of any breach of any provisions of the contract shall not be taken or held to be a waiver of any succeeding breach of such provisions or as a waiver of any provision itself. No payment or acceptance of compensation for any period subsequent to any breach shall be deemed a waiver of any right or acceptance of defective performance. Where the condition to be waived is a material part of the contract, such that its waiver would affect the essential bargains of the parties, the waiver must be supported by consideration and take the form of a contract modification as provided for in the contract. j. Illegal and Invalid Provisions In the event any term, provision, or other part of the contract should be declared illegal, inoperative, invalid or unenforceable, such term or provision shall be amended to conform with the appropriate laws or regulations. In the case of illegal or invalid provisions, the remainder of the contract shall not be affected and shall remain in full force and effect. k. Joint and Severable Liability If the Contractor is comprised of more than one individual, corporation or other entity, each of the entities comprising the Contractor shall be jointly and severably liable. 1. Binding Effect E-6 SWACC Disposal Capacity RFP January 26, 2007 The provisions, covenants and conditions of the contract shall apply to and bind the parties, their legal heirs, representatives, successors and assigns. M. Amendments to the Contract No amendment or modifications of the terms and conditions of the contract shall be effective unless such amendment or modification is in writing and sighed by authorized representatives of all parties entitled to receive a right or obligated to perform a duty under the contract. A signed original amendment to the contract shall be furnished to all parties to be fastened to the original contract. n. Merger Clause The contract shall constitute the final and complete agreement and understanding between the parties. All prior and contemporaneous agreements and understandings, whether oral or written, are to be without effect in the construction of any provision or term of the contract if they alter, vary or contradict the contract. 3. SERVICE, OPERATIONS AND PERFORMANCE a. Services of the Contractor The Contractor shall provide municipal waste processing and/or disposal capacity as defined in the contract for the Authority. The Contractor shall agree to accept and process or dispose of any and all quantities and types of MSW originating from sources located in Cumberland County in accordance with applicable federal and state regulations. The Contractor shall not be responsible for the collection or transportation of the waste materials from sources in Cumberland County to the Contractor's processing or disposal facility. b. Acceptable Municipal Waste The specific type or types of MSW that will be accepted by the Contractor shall be specified in the final contract and mutually agreed upon by the Authority and the Contractor, based on the Contractor's proposal submitted in response to this RFP and any subsequent negotiations with the-Authority. C. Delivery of Wastes The MSW. to ' be accepted under the contract will be delivered to the Contractor's facility by municipal and/or private waste haulers. The waste haulers responsible for delivering the MSW that will be accepted under the contract will be registered by the Authority. Only the municipal waste materials delivered to the Contractor's facility by those haulers registered by the Authority will be covered by the contract and counted towards any waste E-7 SWACC Disposal Capacity RFP January 26, 2007 quantity limitations. The Authority will provide the Contractor with a list of the designated registered haulers for the purposes of this contract. d. Minimum Hours of Operation At a minimum, the Contractor shall be required to accept MSW from the Authority registered waste haulers during the hours of 7:00 a.m. to 3:00 p.m. on weekdays. The Contractor shall have, subject to approval of the Authority, which such approval shall not be unreasonably withheld, discretion to make alternate or special arrangements for accepting waste at earlier or later hours or on Saturdays and Sundays. e. Complaints The Contractor shall receive and respond to all complaints regarding the acceptance of waste materials at his/her facility. Any complaints received by the Authority will be directed to the Contractor. In the event the.Contractor cannot satisfactorily resolve a complaint within two (2) days after receipt of the complaint, the Authority shall have the right to demand a written explanation or satisfactory resolution of the complaint pursuant to the breach of contract provisions in the contract. Municipal Recycling Programs The Authority shall retain the right to establish and operate municipal recycling programs and remove recyclable materials from the municipal waste stream prior to delivery of the waste to the Contractor's facility. The Authority shall retain the right to construct and operate any type of processing facility to separate and recover recyclable materials or produce other resources from the mixed waste stream after collection and before delivery of municipal or other waste to the Contractor's facility. g. Title to Solid Waste The title to the municipal waste and the benefits of marketing any materials or energy recovered from the waste shall pass to the Contractor upon delivery of the waste to the Contractor's facility. Unacceptable or Hazardous Waste The Authority registered waste haulers shall not be entitled to deposit or deliver any hazardous waste materials, exclusive of the normal household hazardous waste constituents typically found in municipal waste, or any other types of municipal waste material, which have been designated as unacceptable under the contract, to the Contractor's facility. The Contractor shall have the discretion to inspect and reject any hazardous or unacceptable waste delivered to the facility by the hauler(s). The hauler(s) shall be responsible for the prompt removal and disposal of the unacceptable waste E-8 SWACC Disposal Capacity RFP January 26, 2007 so identified and shall bear all costs for the transportation and disposal of the unacceptable waste so identified. i. Basis and Method of Payment (Types) (1) All tipping fees shall be paid directly by the municipal and/or private waste haulers delivering MSW to the Contractor's facility. (2) The Contractor and Hauler must decide on the responsibility for the billing and collection of all tipping fees from the waste haulers. The method of billing and collection shall be dependent upon solid waste collection practices of the haulers. (3) The Authority shall not be responsible for the failure of any waste hauler, registered or otherwise, to pay the Contractor's tipping fees and no such fees will be paid by the Authority. The Contractor shall submit copies to the Authority of any delinquent notifications to any waste hauler registered by the Authority. The Authority in turn will consider action to suspend the hauler's registration and notify all municipalities served by that hauler. (4) The Contractor shall not charge a tipping fee to any municipality or waste hauler licensed by the Authority that is greater than the maximum rates established by the final contract for that type of waste. The Contractor shall retain complete discretion to negotiate alternate tipping fees, including large volume discounts, with any waste hauler provided the fees do not exceed the maximum rates under the contract. Maximum Tipping Fees or Rate Schedule The maximum rate or tipping fee to accept various types of municipal waste shall be specified in the final contract and shall be mutually agreed upon by the Authority and the Contractor. k. Rate Escalation and Adjustments (1) Unless the Authority accepts an alternate proposal from the Contractor, the maximum rates or tipping fees shall be adjusted on an annual basis in accordance with a fixed rate of escalation to reflect the general increase in the Contractor's cost of operations. The Contractor will provide a list to the Authority outlining the basis for the cost escalation. (2) The Contractor may request additional escalation rate adjustments on the basis of unforeseen changes in the cost of operations, as a result of new or revised laws, ordinances, regulations or permit E-9 SWACC Disposal Capacity RFP January 26, 2007 requirements, which were not in existence when the original contract was awarded. The Authority shall have the right to demand an inspection, by itself or by an independent auditor, of all pertinent financial records that document the need for a rate adjustment using audit standards similar to the Federal and State procurement regulations. Based on the evidence submitted, the Authority may grant the rate increase as requested, modify the amount of the rate r iiiCrcaBc requested, yr rcjei?t the fate 'increase petition for lack of justification. 4. RECORDKEEPING AND REPORTING REQUIREMENTS a. Measurement of Waste The Contractor will be required to maintain a scale to weigh all incoming waste to the processing or disposal facility. The scale used to weigh solid waste shall conform to the Weights and Measurement Act of 1965 (73 P.S. Sections 1651-1692) or other applicable state or federal regulations. The operator of the scale shall be a licensed public weighmaster under the Public Weighmasters Act (73 P.S. Sections 1771-1796) and regulations thereunder, or in accordance with other applicable state or federal regulations. b. Monthly Report The Contractor shall prepare and submit to the Authority monthly reports on Cumberland County waste accepted at the facility. The quarterly reports shall be submitted on or before the 20th day of each month for the preceding calendar month, respectively. At a minimum, the following information shall be included in each quarterly report. C. Contract Surcharge As consideration for entry into this contract, the Contractor shall agree to incorporate a surcharge of $2.50 on every ton of Cumberland County MSW, including C/D. This surcharge shall be remitted to SWACC to offset the operational costs associated with the execution and administration of the Cumberland County Municipal Waste Management Plan. The Authority will assess a surcharge of $2.50 on every ton of Cumberland County generated MSW (including C/D waste, excluding sewage sludge) received at municipal waste disposal facilities designated ih the Plan. The surcharge shall be paid by the disposal facility accepting Cumberland County generated MSW; however, nothing in these provisions shall prevent the disposal facility from incorporating the surcharge into their tipping fee. The surcharge shall be paid on a monthly basis and shall. be equal to the total tons of Cumberland County generated MSW accepted at the facility during a calendar month multiplied by $2.50. This consideration or surcharge shall be paid directly to the Solid Waste E-10 SWACC Disposal Capacity RFP January 26, 2007 Authority of Cumberland County and shall be used by SWACC solely for the purpose of executing and administrating the Cumberland County Municipal Waste Management Plan, including payment of SWACC staff salaries and SWACC waste management and special waste handling program costs not covered by Commonwealth of Pennsylvania grant money but incurred as a direct result of execution of the Plan. The Authority will make available, upon request, an annual operations report detailing the execution of the IAI, 1 Cumberland County Municipal AaSLe Management Plan, including expenses and revenue. Only those facilities who have consummated a contract will be designated as a disposal facility in the Cumberland County Municipal Waste Management Plan. If ratified by 51 % of Cumberland County's municipalities and approved by the Pennsylvania Department of Environmental Protection, the Cumberland County Municipal. Waste Management Plan will become a legally binding document. Enforcement of the Plan's designated disposal facilities shall rest with the Pennsylvania Department of Environmental Protection. Facilities that accept Cumberland County generated municipal waste but that are not named in the Cumberland County Municipal Waste Management Plan will be subject to the Pennsylvania Department of Environmental Protection's provisions. The Proposer is required to include all applicable state and local fees and surcharges in their Price Proposal. For disposal facilities located in Pennsylvania, these shall include the following:. • $4.00 per ton - PADEP Growing Greener Fee • $2.00 per ton - PADEP Recycling Fee • $1.00 per ton- PADEP Host Municipality Benefit Fee • $0.25 per ton - PADEP Environmental Stewardship Fee • $2.50 per ton - SWACC Contract Surcharge d. Manifests The Solid Waste Authority of Cumberland County requires all registered solid waste haulers who collect or transport MSW generated in the County to complete and sign manifest forms. All loads of MSW generated in the County require a County manifest form which must be delivered to the disposal facility scale operator upon entry to the disposal facility. The disposal facility scale operator shall complete the appropriate portion of the manifest and attach a copy of the weigh slip. The Authority's copy of manifests for municipal waste delivered to each of the contracted disposal facilities shall be retained by the facility and forwarded to the Authority on a weekly basis. Manifests shall be supplied by the Contractor for all MSW (including C/D and sewage sludge) originating from Cumberland County. If waste is received from an unregistered hauler, except for residential waste delivered by a E-11 SWACC Disposal Capacity RFP. January 26, 2007 County resident, the name and address of the unregistered hauler shall be provided to the Authority by the Contractor. e.. Administrative Inspections The Authority and its authorized agent or employee(s) shall have access to and the right to copy any logs, records, papers, reports and/or other documents pertaining to the quantities and sources of solid waste accepted at the facility for the purpose of verifying compliance with terms and provisions of the Authority municipal waste disposal contract. Special Reporting Requirements The Contractor shall provide written notification to the Authority of any permit modification applications. 5. INSURANCE a. Insurance Requirement The Contractor shall be required to maintain in full force and effect throughout the term of the contract, and any renewal or extension thereof, a general liability insurance policy to provide continuous coverage against third party claims for property damage and personal injury, as specified in this section. The effective date of the required insurance policy shall be prior to the initiation of any waste disposal capacity services under this contract. b. Conditions of Insurance The insurance policy must comply with the following conditions: 1) The policy must be issued by an insurer having a certificate of authority and a licensed agent authorized to transact the business of insurance in the Commonwealth by the Pennsylvania Insurance Department. 2) The policy shall follow the standard commercial or comprehensive general liability policy forms approved by the Pennsylvania Insurance Department, and shall include coverage for property damage and bodily injury to third persons. 3) If the disposal facility is located outside of Pennsylvania, the insurance provider shall comply with appropriate state insurance requirements for that state. 4) The policy shall be in one of the following forms: E-12 SWACC Disposal Capacity RFP January 26, 2007 Per occurrence and - aggregate limits apply separately to property damage and bodily injury, or Per occurrence and aggregate limits apply to property damage and bodily injury combined. 5) The policy shall provide that the policy may not be canceled or otherwise terminated by anyone until the Authority has been given written notice of cancellation by certified mail, return receipt requested. The policy shall further provide that termination will not be effective until at least 120 days after the written notice is received by the Authority. 6) The amount of coverage provided for property damage and bodily injury may be exclusive or inclusive of legal defense costs. 7) The policy shall provide for full payment of claims up to the full amount of coverage required herein, regardless of the deductible amount. If the policy provides the insurer with a right to reimbursement by the insured for payment of the deductible amount, the policy shall provide that the insurer is liable for payment of the deductible amount. If the policy does not provide the insurer with a right of reimbursement or similar method of recoupment, the insured shall provide additional coverage amounts to meet the requirements herein by purchase of excess coverage for the deductible amount. C. Minimum Insurance Coverage 1) The general liability insurance policy shall provide the following minimum coverage when separate limits apply to property damage and bodily injury: (a) For coverage which is exclusive of legal defense costs, the minimum amount of coverage. for property damage is $3,000,000 per occurrence with an annual aggregate of $5,000,000. The minimum amount of coverage for bodily injury is $3,000,000 per occurrence with an annual aggregate of $5,000,000. (b) For coverage which is inclusive of legal defense costs, the minimum amount of coverage for property damage is $3,000,000 per occurrence with an annual aggregate of $5,000,000. The minimum amount of coverage for bodily injury is $3,000,000 per occurrence with an annual aggregate of $5,000,000. E-13 SWACC Disposal Capacity RFP January 26, 2007 2) The general liability insurance policy shall provide the following minimum coverages when the limits for property damage and bodily injury are combined: (a) For coverage which is exclusive of legal defense costs, the minimum amount of combined coverage for property damage and bodily injury is $3,000,000 per occurrence with an annual aggregate of $5,000,000. (b) For coverage which is inclusive of legal defense costs, the minimum amount of combined coverage for property damage and bodily injury is $5,000,000 per occurrence with an annual aggregate of $6,000,000. d. Proof of Insurance Coverage The Contractor shall be required to submit to the Authority proof of insurance coverage before any final disposal contract is executed. At a minimum, proof of insurance will consist of a certificate of insurance which: States the name of the insurance company, the insured owner and the facility covered by the policy, Identifies the kinds of coverage provided by the policy and the amounts of coverage, exclusive of legal costs, Identifies the beginning and ending dates for the* policy, Specifies that a minimum 120-day prior written notice shall be given by the insurer to the Authority and the owner, by certified mail, before any cancellation or other termination of the policy becomes effective, States that the insurer is liable for payment on the policy without regard for the bankruptcy or insolvency of the insured, and Must be signed by an authorized agent of the insurance company. e. The Contractor shall be required to submit to the Authority a current certificate of insurance as evidence of continuous insurance coverage as part of the annual report required under the contract. The annual certificate of insurance shall contain the same information and .provisions.as specified for. the original proof of insurance certificate under the requirements of the preceding paragraph. Failure to submit the required proof of insurance or to maintain the required minimum insurance coverages may result in forfeiture of the performance bond in accordance with the provisions of the contract. 6. PERFORMANCE BOND E-14 SWACC Disposal Capacity RFP January 26, 2007 a.. Mandatory Performance Bond The Authority will not require a Performance Bond for the first year of this contract. The Performance Bond will be required for subsequent years of the contract and will conform to the provisions within this section. The Performance Bond shall be held by the Authority. as security for the faithful performance of the Contractor's duties and obligations as provided by the terms of the contract. The Performance Bond shall be payable to the Authority and shall provide for continuous liability throughout the term of the contract. The type and amount of the performance bond shall be as specified herein. b. Acceptable Types of Bonds 1) Under the terms and conditions stated herein, the Authority will accept surety bonds as a guarantee for the Contractor's Performance. 2) If requested, the Authority may accept collateral bonds or a combination of surety and collateral bonds as a guarantee for the Contractor's performance provided that the collateral bonds comply with the requirements of 25 Pa Code §271.322-271.325 and §271.327 of Subchapter D, Bonding and Insurance Requirements, of 25 Pa Code §271, Municipal Waste Management General Provisions, of the Pennsylvania DEP's Municipal Waste Management Regulations dated April 9, 1988, and any amendments thereto. 3) The Authority may accept a Performance Bond executed by an operator who is not the permittee, in lieu of a Bond executed by the permittee, provided the bond meets the requirements stated herein. 4) The Authority may accept a collateral bond funded through the tipping fees payable under this contract, as a guarantee for the Contractor's Performance. Under such an arrangement,. the Contractor shall provide for 40 percent of tipping fees paid under the contract to be placed in an account, payable to the Authority under the terms of the bond agreement, until a sufficient amount has been accumulated to satisfy the requirements of this section. C. Conditions for Surety Bonds 1) The Authority will only accept bonds from a surety authorized to do business in the state in which the disposal facility is located when the surety bond is signed by an. appropriate official of the surety. Attorneys-in-fact who sign the bonds must file with each bond an effectively dated copy of their power-of-attorney, bearing the seal of the surety company, evidencing such agent's authority to execute the bond. E-15 SWACC Disposal Capacity RFP January 26, 2007 2) The bond shall be made payable to the Authority and provide that full payment shall be made under the bond within thirty (30) days of receipt of the Authority's declaration of forfeiture be the surety. 3) The bond shall provide that the surety and the principal are jointly and severably liable for payment of the bond amount. 4) The bond will provide that the Authority shall be entitled to confession of judgment and execution upon forfeiture. 5) The Authority will retain, during the term of the bond, and upon forfeiture of the bond, a property interest in the surety's guarantee of payment under the bond which may not be affected by bankruptcy, insolvency or other financial incapacity of the operator or principal on the bond. 6) In the case of extension or renewal of the contract, the Contractor shall furnish a Performance Bond in an amount determined in the same manner as stated herein and under the same terms and conditions as the original bond. The Performance Bond for any contract extension or renewal period must be furnished to the Authority no later than.sixty (60) days prior to the end of the initial contract period. The original surety, however, is in no way obligated to extend or renew the bond. 7) The contract shall be subject to termination by the Authority at any time if the required Performance Bond shall be cancelled or the surety thereon relieved from liability for any reason. 8) The surety may cancel the bond by sending written notice of cancellation to the Authority, the operator and the principal on the bond, only under the following conditions: a) The notice of cancellation shall be sent by certified mail, return receipt requested. b) The cancellation may not take effect until 120 days after receipt of the notice of cancellation by the Authority, operator and principal on the bond, as evidenced by the return receipts. c)_ Within sixty (60) days after receipt of the notice of cancellation, the Contractor shall provide the Authority with an equivalent replacement bond. d) Failure of the Contractor to furnish a suitable replacement bond within ninety (90) days after receipt of the notice of cancellation shall constitute grounds for forfeiture of the Performance Bond as provided herein and termination of the contract. If the Authority declares the bond forfeit-Dd before the of E-16 SWACC Disposal Capacity RFP January 26, 2007 the 120-day period, the notice of cancellation shall be null and void. d. Bond Amount Determination and Adjustments 1) The amount of the bond at the beginning of the second and all subsequent years shall be based upon ten percent (10%) of the approximate amount of total revenue that the Contractor realized for waste disposal capacity services under the contract for the prior year of the contract. The approximate amount of total revenue shall be determined by multiplying the annual average quantity (tons/year) of municipal waste and C/D waste (excluding sludges), that the disposal facility accepted under the contract by the unit cost tipping fee ($/ton) for the prior year of the contract. The amount of the bond shall be adjusted annually such that a ten percent (10%) Performance Bond is maintained for each subsequent year of the contract term. If in any year a facility does not receive waste from Cumberland County, a Performance Bond will raot be required for the subsequent year. The Solid Waste Authority of Cumberland County has the right to waive the Performance Bond requirement at its sole discretion if deemed the waste quantity received at the facility was insignificant for the prior year. e. Forfeiture of Performance Bond 1) The Authority may declare a bond forfeiture when it determines that one or more of the following has occurred: a) The Contractor has violated or continues to violate the terms and conditions of the bond. b) The Contractor fails or refuses to comply with the terms or conditions of the contract. c) The Contractor fails or refuses to furnish an acceptable replacement bond within the specified time period after receipt of a notice of cancellation for any existing bond or upon extension or renewal of the contract by the Authority. d) The permit for the Contractor's municipal waste landfill or resource recovery facility under bond has been suspended or revoked'by the Department for violation of federal, state, or local laws, ordinances, or regulations. e) The Contractor has become insolvent, failed in business, enters into bankruptcy or liquidation, had a receiver appointed by the court or cannot demonstrate or prove the ability to E-17 SWACC Disposal Capacity RFP January 26, 2007 continue to comply with the duties and responsibilities under the terms and conditions of the contract. 7. NONDISCRIMINATION Neither the Contractor nor any subcontractor nor any person(s) acting on behalf of the Contractor shall discriminate against any person because of race, sex, age, creed, color, religion or national origin. 8. INDEMNIFICATION The Contractor will indemnify and save harmless the Authority, its officers, agents, servants and employees from and against any and all suits, actions, legal proceedings, claims, demands, damages, costs, expenses and attorney's fees resulting from a willful or negligent act or omission of the Contractor, its officers, agents, servants, and employees in the performance of this contract; provided however, that the Contractor shall not be liable for any suits, actions, legal proceedings, claims, demands, damages, costs, expenses and attorney's fees arising out of the award of this contract or the willful or negligent act or omission of the Authority, its officers, agents, servants and employees. 9. PERMITS The Contractor shall be responsible for obtaining any and all permits necessary for the construction and/or operation of the solid waste disposal and/or processing facilities required to comply with the terms and conditions of the contract, and any and all costs or expenses of obtaining such permits.. E-18 SWACC Disposal Capacity RFP January 26, 2007 SOLID WASTE DISPOSAL - CONTRACT SOLID WASTE AUTHORITY OF CUMBERLAND COUNTY AND ONYX LANCASTER, LLC This Solid Waste Disposal Contract ("Contract") made this day of , 2003, to be effective this - day of , 2003, by and ' Between the Solid Waste Authority of Cumberland County ("Authority"), a duly created Pennsylvania municipal authority and Onyx Lancaster,•LLC, 635 Toby Road, Kersey, PA 15846 with the facility Milton Grove Construction & Demolition Landfill & Tire Processing Site, located at 2487 Cloverleaf Road, Elizabethtown, PA 17022 ("Contractor"). WHEREAS, the Authority is required under the Municipal Waste Planning, Recycling and Waste Reduction Act, the Act of July 28,1988, P.L..1988-101 [53 P.S. § 4000.101 et seq], "Act 101 ". to adopt, implement and revise a municipal waste management plan; and WHEREAS, the Contractor will provide,. or cause to be provided, conventional landfill space or otherwise accept for proper disposit ion, acceptable municipal waste generated Within Cumberland County, subject to the terms and conditions set forth in this contract; and WHEREAS, the Authority believes it is in the best interest of the citizens of Cumberland County to provide for a long term plan for the disposition of municipal waste and therefore desires to enter into this solid waste disposal contract to obtain disposal- rights at the contractor's facility and to comply with the requirements of Act 101, upon. the terms and' conditions set forth in this contract; and, WHEREAS, the Authority has designated. the Contractor's facility as. a disposal site for acceptable municipal solid waste in furtherance of the Authority's responsibilities under Act-1-01: NOW THEREFORE, in consideration of the mutual promises contained herein and with the intent to be legally bound, the parties hereby agree as follows: 1. . DEFINITIONS All words, terms and/or phrases used herein, if not specifically defined herein, shall have the meanings set forth in Act 101 and/or the Pennsylvania Solid Waste Management Act (35 P.S. 6001, et .seq), and/or regulations promulgated thereunder, subject to such additions, deletions, or et seq), and/or regulations promulgated thereunder, subject to such additions, deletions, or modifications thereto as are set forth herein. Acceptable Waste - All wastes which, under applicable laws and regulations, is permitted to be received at Contractor's facility and is intended to include. (i) All "municipal waste" in -or generated within. the political boundaries of Cumberland County-, (ii) All "construction and demolition waste" to the extent the same is of the type which normally would be placed at the curbside in amounts normally collected' as "Municipal Waste" for disposition -and collection incident to residential and commercial activities; and "Sewage. Sludge" that otherwise constitutes "Municipal Waste" under Act 101.; provided in each instance the waste does not constitute residual or Hazardous Waste. Authority - Solid Waste Authority of Cumberland County. PA. Bulky Waste (White Goods) - Large items of refuse, including but not limited to, appliances, furniture, auto parts, trees, branches or stumps which may require* special handling due to their size, shape or weight. 'Commercial Waste - -All solid waste originating from commercial establishments engaged in nonmanufacturing or nonprocessing business, including, but not limited to, stores, markets, office buildings, restaurants, shopping centers, theaters and warehouses. Construction/Demolition or CID Waste - Solid waste resulting from the construction or demolition of buildings and other structures, including, but not limited to, wood, plaster, metals, asphaltic substances, bricks, block and unsegregated concrete. Construction and Demolition Waste Landfill - A• facility using land exclusively for the disposal of construction and demolition waste. The term includes land affected during the lifetime of the operations, including, but not limited to, areas where disposal activities actually occur, support facilities, borrow areas, offices, equipment sheds,. air and water pollution treatment systems, access roads, associated. on site or contiguous collection transportation and storage facilities, closure and postclosure care and maintenance activities in which the natural land surface has been disturbed as a result of or incidental to the operation of the facility. Contractor - The individual, firm; partnership, joint venture, corporation, or. association . providing Municipal Solid Waste disposal services under contract with the County. County - The. County of Cumberland, PA. 2 Domestic or Residential Waste - Solid waste comprised of garbage and rubbish which normally originates from residential households or apartment houses. Garbage - Putrescible animal or vegetable wastes resulting from the handling, preparation, cooking, serving or consumption of food and food containers. Hauler or Waste. Collector -.Any person, firm; partnership, association or corporation, including any municipality, engaged in the business of collecting and transporting Municipal Solid Waste to processing or disposal facilities. . Hazardous Waste" - Waste which, by reason of its composition or characteristic, is hazardous waste as defined in the Resource Conservation and . Recovery Act (RCRA) of 1976, Subtitle C, 42 USC §6901 et sea., regulations issued thereunder, Act 97, regulations issued under Act 97, or any analogous federal, state or local law, all the foregoing as now in effect or as may hereafter be amended. Institutional Waste - Solid waste originating. from institutions including, but not limited to, public buildings, hospitals, nursing homes, orphanages, schools and universities. Leaf Waste - Leaves, garden residues; shrubbery and tree trimmings, and.similar material, but not including grass clippings. Municipal Recycling Program - A source separation and collection program for recycling municipal waste, or a program for designated drop-off points or collection centers for recycling municipal waste, that is operated by or on behalf of a county or municipality. The -term shall include any source separation and collection program for composting leaf waste that is operated by or on behalf of a county or municipality. Municipality - Any city, borough, incorporated town, township, or county or any municipal authority created by any of the foregoing. Municipal Waste.or .Municipal. Solid Waste - Garbage, refuse, industrial. lunchroom. or office waste and other material; including solid, liquid, semi-solid or contained gaseous material resulting from operation of residential, municipal, commercial or institutional establishments or from community activities; and any sludge not meeting the definition of residual or hazardous waste .from a municipal, commercial, or institutional water supply. treatment plant, wastewater treatment plant or air pollution.control facility. Municipal Waste or Sanitary Landfill - A facility using land for disposing of municipal waste. The facility. includes land affected during the lifetime of operations including, but not limited to, areas where disposal or processing activities actually occur, support facilities, borrow areas, offices, equipment sheds, air and water pollution control and treatment systems, access roads, associated on site and contiguous collection, transportation and storage facilities, closure and postclosure care and maintenance activities and other activities in which themataral. land surface has been disturbed as a result of or incidental to operation of the facility. The term does not include a C/D waste landfill or a facility for the land application of sewage sludge. Operator - A person or municipality that operates a Municipal ,Solid Waste. processing or disposal facility. Owner - The person or municipality who is the owner of record of a solid waste processing or. disposal facility. or part of a facility. PADEP - Pennsylvania Department of Environmental Protection. Permit - A permit issued by the Pennsylvania Department of Environmental Protection to operate a municipal waste disposal or processing facility. Permit Area - The area of land and water within the.boundaries of the permit,'which is designated on the permit application maps as approved by PADEP. Recycling - The collection, separation, recovery and sale or reuse of metals, glass,.paper, leaf waste, plastics and other materials which would otherwise be disposed or processed as municipal waste. Refuse - Discarded waste materials in a solid or semi-liquid state, consisting of garbage, rubbish or a combination thereof. Remaining Permitted Capacity - The weight or volume of municipal waste that can be disposed at a permitted municipal waste disposal or processing facility. The term shall only include the weight or volume capacity for which the Department has issued a permit. Residual Waste - Any garbage, refuse, other discarded material or other waste, including solid,. liquid, semi-solid or contained gaseous material resulting from industrial, mining and agricultural operations and any sludge from an industrial, mining or agricultural water supply treatment facility; wastewater treatment facility or. air pollution control .facility; if it is not hazardous. Resource. Recovery Facility - A facility that provides for the extraction and utilization of materials or energy from municipal waste that is generated off-site, including, but not limited to, -a facility that mechanically extracts materials from.municipal waste, a combustion facility that converts the organic fraction of municipal waste to usable energy and any chemical or*biological process that converts municipal waste into a fuel product or other usable material. The term does not include methane gas extraction from a municipal waste landfill, nor any separation and collection center, drop-off point or collection center for recycling municipal waste, or any source separation or collection center for composting leaf waste. . Sewage Sludge - The coarse screenings, grit and dewatered.or air-dried sludges, septic and 4 holding tank pumpings and other residues from municipal and residential sewage collection and treatment systems. Stabilized Sewage Sludge - Sewage sludge that has been treated to reduce odor potential and the number of pathogenic organisms. Treatment methods include anaerobic and aerobic digestion, composting,' lime stabilization and chlorine stabilization. Tipping Fee - The schedule of fees established by the owner or operator of a transfer station, sanitary landfill,. resource recovery or disposal facility for accepting various types of solid waste delivered for processing or disposal. Unacceptable Waste - That waste which is not permitted to be disposed of at a Contractor's facility under applicable laws, regulations, or permits: 2. SCOPE OF CONTRACT a. Effective Date This contract shall become effective upon receipt by the Authority, of a fully- -executed contract The . Contractor shall - begin providing municipal waste disposal services for the Authority on the effective date. b. Term of Contract The term of this contract shall.be for a period of four (4) years. The term of the Contract shall begin on the effective date, which is the date the Contractor begins providing disposal service for the Authority and shall end on the fourth anniversary of that date. C. Compliance With-Applicable Laws The parties to the contract agree that the laws of the Commonwealth of Pennsylvania shall govern the validity, construction, .interpretation and effect of the contract. The Contractor shall conduct the service of municipal waste disposal.as provided for by the contract in compliance. with all applicable :federal and state regulations and laws. The contract and-the work to be performed as described herein is also subject to the provisions of all pertinent County ordinances which shall be made a part hereof with the same force and effect as if specifically set out herein. d. Breach of Contract . 5 i If the Contractor fails to perform any provision of this Contract, or fails to perform any provision of this Contract 'in accordance with applicable state and/or federal regulations, or is negligent in the performance of any provision of this Contract, the Authority shall have the right to demand in writing adequate assurances from the Contractor that steps have been or are being taken to rectify the situation. Within ten (10) days of receipt of any such demand, the Contractor must submit to the Authority a written statement that explains..the reasons for the non-performance or delayed, partial or negligent performance during that period and any continuance thereof The Contractor shall also have the option to present an explanation before the entire Solid Waste Authority Board. Upon receipt 'of the Contractor's statement or the failure of the Contractor to submit a statement,. the Authority may, except under the conditions. of Force Majeure as defined herein, terminate the contract. e. Liquidated Damages (1) If the Contractor neglects, fails or refuses to provide the waste disposal services in accordance with the terms and provisions of the contract, or otherwise breaches this Contract, then the Contractor-does hereby agree, as a part consideration for the awarding of the contract, to pay to the Authority an amount. to be determined as hereinafter set forth, not as a penalty, but as liquidated damages for such breach of contract for each and every calendar day that the Contractor is in default. (2) The amount of the liquidated damages. shall be equal to any additional costs, if any, that the Authority has incurred as a result of utilizing alternative processing and/or disposal facility. (3) The Contractor shall not be responsible for the payment of any liquidated damages whenever the Authority determines that the Contractor was without fault and the Contractor's reasons for the breach of contract are acceptable. Furthermote, the Contractor shall not be responsible for any liquidated damages under the conditions of Force Majeure asdefined herein. f. Force Majeure Neither -the Contractor nor the Authority shall be liable for the failure to perform their duties and obligations under the contract or for any resultant damages, loss, expense, etc., if such failure was the result of an act of God, riot, insurrection; war, catastrophe, natural disaster or any other cause which was beyond reasonable control of the Contractor or the. Authority and which the Contractor or Authority was unable to avoid by exercise of reasonable diligence. 6 g. Assignment of Contract - No assignment of the contract or any right accruing under the contract shall be made in whole or in part.by the Contractor without. prior express written approval by the Authority, which approval shall not be unreasonably withheld. The delegation of any contract duties will not relieve the Contractor.of any liability and/or obligation to perform. In the event of any delegation of a duty, the delegate shall assume full responsibility and liability for performance of that duty without limiting the contractor's liability. h. ' Change of Ownership in the event of any change of control or ownership of the Contractor's facilities, the Authority shall maintain the right to hold the original owner solely liable. However, the Authority, at its option, may determine that the new ownership can adequately and faithfully perform the duties and obligations of the contract for the remaining term of the contract,.and elect to execute a novation, which will allow the new ownership to assume the rights and duties of the contract and release the former ownership of all obligations and liabilities. The new ownership will then be solely liable for the performance of the contract and any claims or liabilities under the contract. i. Waivers A waiver by either party of any breach of any provisions of the contract shall not be taken or held to be a waiver of any succeeding breach of such provisions or as a waiver of any provision itself. No payment or acceptance of compensation for any period subsequent to any breach shall be deemed a waiver of any right or acqrptance of defective performance. Where the condition to be waived is a material part of the contract, such. that its waiver would affect the essential bargains of the parties, the waiver must be supported by consideration and take the form of a contract modification as provided for in the contract. j. Illegal and Invalid Provisions In the event any term, provision, or other part of the contract should be declared illegal, inoperative,. invalid or unenforceable, such term -or provision shall be amended to conform with the appropriate laws or regulations. In the case of illegal or -invalid provisions, the remainder of the contract shall not be affected and shall remain in full force and effect. k. Joint and Severable Liability 7 If the Contractor is comprised of more than one individual, corpofation or other entity, each of the entities comprising the Contractor shall be jointly and severably liable. Binding Effect The provisions, covenants and conditions of the contract shall apply to and bind the parties, their legal heirs, representatives, successors and assigns. M. Amendments to the Contract No amendment or modifications of the terms and conditions of the contract shall be effective unless such amendment or modification is in writing and signed by authorized representatives of all parties entitled to receive a right or obligated to perform a duty under the contract. A signed original amendment to the contract shall be furnished to all parties to be fastened to the original contract. n. Merger Clause The contract shall constitute the.final and complete agreement and understanding between the parties. - All prior and contemporaneous agreements and understandings, whether oral 'or written, are to be without effect in the construction of any provision or term of the contract if they alter, vary or contradict the contract o. Non-Exclusivity The Authority and the-Contractor aclmowledge and agree that this Contract is non- exclusive and the Authority may enter into other contracts with other facilities to provide the same municipal waste disposal services that the Contractor is contracting to perform hereunder as consistent with the Cumberland County Municipal Solid Waste Management Plan during the term of this Contract Nothing contained herein creates or is intended to create a "put or pay" or similar obligation relationship : between the Autthority.*and the Contractor. 3. SERVICE, OPERATIONS AND PERFORMANCE a. Services of the Contractor The Contractor shall provide municipal waste processing and/or disposal services as set forth herein. The Contractor shall accept and process or dispose of any and all quantities and types - of Acceptable Waste originating from sources located in Cumberland -County in accordance with applicable federal and state regulations, as follows: (1) Municipal waste other than special handling waste or. Bulky Waste; (2) Bulky Waste.as defined herein if approved by the Contractor and, as required, PADEP, on a case-by-case basis; (3) Sewage and water. supply treatment sludge on a case-by-case basis if approved by the Contractor, provided said approval is not unreasonably withheld' and-as required by PADEP; and (4) Construction/Demolition Waste on a case-by.--case basis, if approved by the Contractor and, as required by PADEP. The Contractor shall not be responsible for the collection or transportation of the waste materials from sources in Cumberland County.to the Contracts processing or disposal.facility. b. Quantities of Municipal Solid Waste The quantities of waste that will be accepted shall be subject to the condition that it is Acceptable Waste. Actual amounts will be dependent upon the market conditions and any individual or separate agreement between municipalities or haulers and the Contractor. C. Delivery of Wastes The Acceptable. Waste under the contract will be delivered to the Contractor's facility by municipal and/or private waste haulers. The waste haulers responsible for delivering the Acceptable Waste that will be accepted under the contract will be regulated and licensed by the Authority. Only the municipal waste materials delivered to the Contractor's facility by those haulers licensed by the Authority will be covered by the contract. The Authority will provide. the Contractor with a list of the designated licensed haulers for the purposes of this contract. d. Minimum Hours of Operation and Appropriate Rules At a minimum, the Contractor shall be required to accept Acceptable Waste from the Authority licensed waste haulers during the hours as set forth in Exhibit B. The Contractor shalthave, subject to approval of the Authority, which such approval shall not be unreasonably withheld, discretion' to. make alternate or special arrangements for accepting waste from county. licensed waste haulers at earlier or later hours or on Sundays. e. Complaints 9 The Contractor shall receive and respond to all complaints regarding the acceptance of waste materials at Contractor's facility. Any complaints received by the Authority will be directed to the Contractor. In the event the. Contractor cannot satisfactorily resolve a complaint within two (2) days after receipt of the complaint, the Authority shall have the right to demand a written explanation the or if the circumstance indicate a breach of contract, the Authority shall have the right to demand the written adequate assurances provided for in the breach of contract provisions. in the Contract. f Municipal Recycling Programs The Authority shall retain the right to establish and operate municipal recycling programs and remove recyclable materials from the municipal waste stream prior to delivery of the waste to the Contractor's facility.. The Authority shall retain the right to construct and operate any type of processing facility to separate and recover recyclable materials or produce other resources from the mixed waste stream after collection and before delivery of municipal or other waste to the Contractor's facility. g. Title to Solid Waste The title to the municipal waste and the. benefits of marketing any materials or energy recovered from the waste shall pass to the Contractor upon delivery of the- waste to the Contractor's facility. h. Unacceptable or Hazardous Waste The Authority licensed waste haulers shallnot be entitled to deposit or deliver any Hazardous Waste materials, exclusive of the normal household hazardous waste constituents typically found in municipal waste,. or any other types of municipal waste material, which have been desigaated.as.'Unacceptable under the Contract, to the Contractor's facility. The Contractor shall have the discretion to inspect and reject any Hazardous or Unacceptable Waste delivered to the facility by the hauler(s). The. hauler(s) shall be responsible for.the prompt removal and disposal of the Unacceptable Waste so identified and shall bear all costs for the transportation and disposal of the Unacceptable Waste so identified. i. Basis and Method of Payment (Types) (1) All tipping fees shall be paid directly by the municipal and/or private waste haulers delivering Acceptable Waste to the Contractor's facility., (2) The Contractor and Hauler must decide on the responsibility for the billing 10 and collection of all tipping fees from the waste haulers- (;) The Authority shall not be responsible for the failure of any waste hauler, licensed or otherwise, to pay the Contractor's tipping fees and no such fees will be paid by the Authority. The Contractor shall submit copies to the Authority of any delinquent notifications to any waste hauler licensed by the Authority. The Authority shall have the right to revoke the hauler's license and notify all municipalities served by that hauler. (4) The Contractor shall not charge a tipping fee to any municipality or waste hauler licensed by the Authority that is greater than the maximum rates established as . set forth herein. The Contractor shall retain complete discretion to negotiate. alternate tipping fees; including large volume discounts, with any waste hauler provided the fees do 'not exceed the maximum rates under the contract. Maximum Tipping Fees or Rate Schedule The tipping fee shall be that per ton fee charged by the Contractor for Acceptable Waste delivered to the contractor's facility. The initial tipping fee 'and the computation of any subsequent tipping fees are set forth in Exhibit "A" to this Contract. k. Rate Escalation and Adjustments (1) The maximum rates or tipping fees shall be adjusted on an annual basis (Exhibit. "A") in accordance with a fixed rate of escalation to reflect the general increase in the Contractor's cost of operations. (2) The Contractor may request additional escalation rate adjustments- on the basis of unforeseen changes in the cost of operations, as. a. result of new or revised laws, ordinances, regulations or permit requirements, which were not . in existence when this Contract was awarded.. The Authority shall have the right to demand an inspection, by itself or by an independent auditor, of all pertinent financial records that document the need fora rate adjustment using audit standards similar to the federal and state procurement regulations. Based on the evidence submitted, the Authority may grant the rate increase as requested, modify the amount of the rate increase requested, or reject the rate increase petition for lack of justification. 4. RECORDKEEPING AND REPORTING REQUIREMENTS 11 a. Measurement of Waste The Contractor shall maintain a scale to weigh all incoming waste to the processing or disposal facility. The scale used to weigh solid waste shall conform to the Weights and Measurement Act of 1965 (73 P.S. Sections 1651-1692) and applicable regulations thereunder. The operator of the scale shall be a licensed public weighmaster under the Public Weighmasters Act (73 P.S. Sections 1771-1796) and regulations thereunder, or in accordance with other state or federal regulations. b. Quarterly Report The Contractor shall prepare and submit to the County a copy of the PADEP quarterly reports on Acceptable Waste received at its facility from Cumberland County at the same time as the required date for submission to the PADEP. C.- County System Fee, Act 101 Fees, and Title 27, Chapter 63 Fee. The Authority will charge a County System Fee for each ton of MSW (including GD Waste, excluding Sewage Sludge) disposed at the Contractor's disposal facility. This fee will be collected by the Contractor and forwarded to the Authority on a monthly basis. The Authority shall have the right to adjust the County System Fee as it deems necessary. In addition, the Contractor shall include all Act 101 mandated fees in their contracted price. For.the Pennsylvania disposal facilities, these Act 101 mandated fees shall include the following: $2.00 per ton - Recycling Fee $1.00 per ton - Host Municipality Benefit Fee $0.25 per ton-,Environmental Stewardship Fee In addition, the Contractor -shall include the Title. 27, Chapter 63 Disposal Fee of $4.00 per ton. d. Annual Report The. Contractor shall prepare and submit to the County an annual report for each calendar year. The Contractor may utilize for this requirement the annual report submitted to PADEP, provided the. annual report contains the information previously provided in the year's quarterly reports. e. Manifests 12 The County requires all licensed solid- waste haulers who_ collect or transport Acceptable Waste generated in the County to complete and sign manifest forms: All loads of Acceptable Waste generated in the County require a County manifest form which must be delivered to the disposal facility scale operator upon entry to the disposal facility. The disposal facility scale operator shall complete the appropriate portion of the manifest and attach a copy of the weigh slip. The County's copy of manifests for municipal waste delivered to-each of the contracted disposal facilities shall be retained by the facility and forwarded to the County on a weekly basis. Manifests shall be supplied by the County to. the Contractor for use -by haulers without manifests. If waste is received from an unlicensed hauler, except for residential waste delivered by a County resident,. the name and address of the unlicensed hauler shall be provided to the County by the Contractor. f. Administrative Inspections The County and its authorized agent or employee(s) shall have access to and the right to copy any logs, records, papers, reports and/or other documents pertaining to the quantities and sources of solid waste accepted at the facility for.the purpose of verifying compliance with terms and provisions of this Contract. Contractor'-shall provide the County with reasonable -access to-'the. weighing facilities and the remainder of the facility at reasonable times, with twenty-four (24) hour notice to be given by the County. g. Special Reporting Requirements . The Contractor shall provide written notification to.the Authority of any permit modification applications. . . 5. INSURANCE a. Insurance Requirement Consistent with Act 101 and all current PADEP regulations, the Contractor shall maintain in full force and effect throughout the term of the contract, and any renewal or extension thereof, *a general liability insurance policy to provide continuous coverage against third party claims for property damage and personal injury, as specified in this section. The effective date of the required insurance policy shall be prior to the initiation of any waste disposal services under this Contract. b. Conditions of Insurance 13 The insurance policy must comply with. the following conditions' (1) The policy must be issued by an insurer having a certificate of authority and a licensed agent authorized to transact the business of insurance in the commonwealth by the Pennsylvania Insurance Department. (2) The policy shall follow the standard commercial or comprehensive general liability policy forms approved- by the Pennsylvania Insurance Department, and shall include coverage for property damage and bodily injury to third persons. . (3) If the disposal facility is located outside of Pennsylvania, the insurance provider shall comply with appropriate state insurance requirements for'that ' state. (4) The policy shall be in one of the following forms: Per occurrence and aggregate limits apply separately to property damage and bodily injury, or Per occurrence and aggregate limits apply to property damage and bodily injury combined. (5) The policy may not be canceled or otherwise terminated until the Authority has been given prior written notice of cancellation by certified -mail, return receipt requested. The policy shall further provide that termination will not be effective until at least 60 days after the written notice is received by the Authority. (6) The amount of coverage provided for property damage.and bodily injury may be exclusive or inclusive of legal defense costs. (7) The policy shall provide for full payment of claims up to the full amount of . coverage required herein, regardless of the deductible amount. If the policy provides the insurer with a right to reimbursement by the insured for payment of'the deductible mount, the policy shall provide that the :insurer is . liable for payment of the deductible amount. If the policy does not provide the insurer with :a right of reimbursement or similar method of recoupment, the insured shall provide additional coverage amounts to meet. the. requirements herein by purchase of excess coverage for. the deductible amount. C. Minimum Insurance Coverage 14 1) The general liability insurance policy shall provide the following minimum coverage when separate limits apply to property damage and bodily injury: (a) For coverage which is exclusive of legal defense costs, the minimum amount of coverage for property'damage is. $1,000,000 per occurrence with an annual aggregate of $2,000,000. The minimum amount of coverage for bodily injury is $1,000,000 -per occurrence with an annual aggregate of $2,000,000. (b) For coverage which is inclusive of legal defense costs, the minimum. amount of coverage for property damage is $1,000,000 per occurrence with an annual aggregate of $2,00.0,000.. The minimum amount of coverage for bodily injury is $1,500,000 per occurrence with an annual aggregate of $3,000,000. 2) The general liability. insurance policy shall provide the following minimum coverages when the limits for property damage and bodily injury are combined: (a) For coverage which is exclusive of legal defense costs, the minimum amount of combined coverage for property damage and bodily injury is $1,500,000 per occurrence with an annual aggregate of $3,000,000. (b) _ For coverage which is inclusive of legal defense costs, the minimum amount of combined coverage for property damage and bodily injury is $2,250,000. per occurrence with an annual aggregate of $4,500,000. 3) Municipal or publicly-owned processing or disposal facilities must provide insurance coverage as specified by the Pennsylvania Municipal Tort Claims Act. d. Proof of Insurance Coverage The Contractor shall be required to submit to the Authority proof of insurance coverage before any final disposal contract is executed. At a minimum, proof of insurance will consist of a certificate of insurance which: States the name of the insurance company, the. insured owner and the facility covered by the policy, Identifies the.ldnds of coverage provided by the policy and the amounts of coverage, exclusive of legal costs, 15 Identifies the beginning and ending dates for the policy, Specifies that a minimum 60-day prior written .notice shall be given by the insurer to the Authority and the owner, by certified. mail, before any cancellation or other termination of the policy becomes effective, states that the insurer. is liable for payment on the policy without regard for the bankruptcy or insolvency of the insured, and Must be signed by an authorized agent of the insurance company. A complete copy of the insurance policy(ies) listed in the certificate of insurance shall be made available to the Authority upon request. Upon examination of -the insurance policies, the Authority will accept properly-issued certificates of insurance which confirm the Contractor's insurance coverage. The Authority may accept as proof of insurance an insurance policy issued to a ' person or municipality that operates the facility, who is not the permittee, in lieu of a policy issued to the permittee. e. The Contractor shall submit to the Authority a current certificate of insurance as evidence of continuous insurance coverage as part of the annual report required under the contract. The annual certificate of insurance. shall contain the same information and provisions as specified for the original proof of insurance certificate under the requirements of the preceding paragraph. Failure to submit the required proof of insurance or to maintain the required minimum insurance coverages may 16 result in forfeiture of the performance bond in accordance with the provisions of the contract and the voiding of the Contract. - 6. . PERFORMANCE BOND a. Mandatory Performance Bond The Authority will not require a Performance Bond for the first year of this contract. The Performance Bond will be required for subsequent years of the contract and will conform to the provisions within this section. The Performance Bond shall be held by the Authority as security for the faithful performance of the Contractor's duties and obligations as provided by the terms of the contract. The Performance Bond shall be payable to the Authority. and shall. provide for continuous liability throughout the term of the contract. The type and amount of the performance bond shall be as specified herein. b. Acceptable Types of Bonds 1). Under the terms and conditions stated herein, the Authority will accept surety bonds as a guarantee for the Contractor's Performance. 2) If requested, the Authority may, accept collateral bonds or a combination of surety and collateral bonds as a guarantee for the Contractor's performance provided that the collateral bonds comply wi#i the requirements of 25 Pa Code §271.322-271.325 and §271.327 of Subehapter D, Bonding and Insurance Requirements, of 2.5. Pa Code'- -§271, Municipal Waste Management General Provisions, of the Pennsylvania DEP's Municipal Waste Management Regulations dated April 9, 1988, and any amendments thereto. 3) The Authority may accept a Performance Bond executed by an operator who is not the permittee, in lieu of a Bond executed by the permittee, provided the bond meets the requirements stated herein. 4) The Authority may accept a collateral bond funded through the tipping fees payable under this contract, as a guarantee for the Contractor's performance. Under- such an arrangement, the Contractor shall pro vide for .40 percent of tipping fees paid under the contract to be placed in an account, payable to the Authority under the terms of the- bond agreement, until a sufficient amount has been accumulated to satisfy the requirements of this section. c. ' Conditions for Surety. Bonds 1) The Authority will only accept bonds from a surety authorized to do business 17 in the state in which the disposal. facility is located when the surety bond is signed by an appropriate official of the surety. Attorneys-in-fact .who sign the bonds must file with each bond an effectively dated copy of their power- of-attorney, bearing the seal of the surety company, evidencing such agent's authority to execute the bond.. 2) The bond shall be made payable to the Authority and provide that full payment shall be made under the bond within thirty (30) days of receipt of the Authority's declaration of forfeiture to the surety. 3) The bond shall provide that the surety and the principal are jointly and severably liable for payment of the bond amount. 4) * The surety will provide in the bond that the amount shall be confessed to judgment and execution upon forfeiture. 5) The Authority will retain, during the. term of the bond, and upon forfeiture of the bond, a property interest in the surety's guarantee of payment under the bond which may not be. affected by bankruptcy, insolvency or other financial incapacity of the operator or principal on the bond. 6) If the Contractor shall fail to provide an annual. Performance Bond in accordance with this Contract or if the required Performance Bond is cancelled or the surety thereon relieved from liability for any-reason, the Authority shall have the right to treat that failure, cancellation or surety relief from liability* as a material breach of this Contract and thereby remove said contractor and its facility from the Cumberland County Municipal Waste Management Plan as a designated site for the duration of the contract or until a Contractor provides the requisite Performance Bond. 7) The surety may cancel the bond by sending written notice of cancellation to the Authority, the operator and the principal on the bond, only under the following conditions: a) The notice of cancellation shall be sent by certified mail, return receipt requested. b) The cancellation -may not take effect until 120 days after receipt of the notice of cancellation'by the Authority, operator and principal on the bond, as evidenced by the return receipts. c) Within sixty (60) days after receipt. of the notice of cancellation, the Contractor shall provide the . Authority with an equivalent replacement bond. 18 d) Failure of the Contractor to furnish a suitable replacement bond within ninety (90) days after receipt of the notice of cancellation shall constitute grounds for forfeiture of the Performance Bond . as: provided herein and termination of the Contract.. If the Authority declares the bond forfeited before the expiration of the 120-day period, the notice of cancellation shall be null and void. d. Bond Amount Determination and Adjustments The amount of the bond at the beginning of the second and all subsequent years shall be based upon ten percent (10%) of the approximate amount of total revenue that the Contractor realized for waste disposal services under this Contract for the prior year of the contract. -The approximate amount of total revenue shall be determined by multiplying the annual average quantity (tons/year) Acceptable Waste (excluding sewage sludges), that the disposal facility accepted under the contract - by the. unit cost tipping fee ($/ton). for the prior year of the contract. The amount of the bond shall be adjusted annually such that a ten percent (10%) Performance Bond. is maintained for each subsequent year of the contract term. If in any year a facility does not receive waste from the County, a Performance Bond will not be required for the subsequent year. The Authority has the right at its sole discretion to waive the Performance Bond requirement if the prior year waste quantity received at the facility was deemed insignificant e. Forfeiture of Performance Bond The Authority may declare a bond forfeiture when it determines that one or more of the following has occurred: 1) The Contractor has violated or continues to violate the terms and conditions of the bond. 2) The Contractor fails or refuses to comply with the terns or conditions of this Contract 3) The Contractor fails or refuses to famish an acceptable replacement bond within the specified time period after receipt of a notice of cancellation for any existing bond or upon extension or. renewal of the contract by the Authority. 4) The permit for the Contractor's processing or disposal facility under bond has been suspended or revoked by the PADEP for violation of federal, state, or local laws, ordinances, or regulations. 5) The Contractor has become insolvent, failed. in business, enters into bankruptcy or liquidation, had a receiver appointed by the court or cannot 19 demonstrate or prove the ability to continue to comply with the duties and responsibilities under the terms and conditions of the contract. 7. NONDISCRIMINATION Neither the Contractor nor any subcontractor nor any person(s) acting on behalf of the Contractor shall discriminate against any person because of race, sex, age, creed,. color, religion or national origin. S. INDEMNIFICATION The Contractor shall protect, indemnify and hold harmless the Authority and the County, its officers, agents, servants and employees. from and against all liabilities, -actions, suits, legal proceedings, claims, demands, 'costs, expenses and attorney's fees, and shall defend the Authority and its officers, agents and employees in any suit, including appeals, for personal injury to, or death, of any person or persons, or loss or damage to property, or any other loss arising out of a. The negligence.or willful misconduct of the Contractor or any of its agents or employees, contractors, or subcontractors in connection with the contractor's obligations or rights under this Contract, and b. the construction and operation, closure and postclosure care. and maintenance of the 'contractor's facility. The Authority and the County shall hold the Contractor, its officers, agents, servants and employees harmless from and against all liabilities, actions, suits, legal proceedings, claims, demands, damages, costs, expenses and attorney's fees arising out of the award of this contract, or the willful or negligent act or omission of the Authority or the County, its officers, agents, servants and employees. Anything herein to the -contrary. notwithstanding, neither parties shall. be- liable to the other for consequential, incidental-or punitive damages arising out of the performance of this Contact. .9. PERMITS The Contactor shall be responsible for obtaining g- any and all permits necessary for the construction- .operation of the solid waste disposal and/or processing facility and/or expansion required to comply with the terms and conditions of the contract, and any and all costs or expenses of obtaining such permits. 20 10. MISCELLANEOUS A facsimile signature of any party shall be considered to have the same binding legal effect as an original signature. ]N WITNESS WHEREOF; the parties have executed this Solid Waste Disposal Contract the day and year first above written. ATTEST: SOLID: WASTE AUTHORITY OF. CUMBERLAND COUNTY B- 21 ONYX LANCASTER, LLC ONYX Year Disposal.Rate per Ton. 2003 $49.00 2004 $50.47 2005 -$51.98 2006 $52:50 2007 - $54.00 2008 $56.50 ONYX LANCASTER, LLC Onyx Lancaster, LLC Milton Grove construction & Demolition Landfill & Tire Processing Site 2487 Cloverleaf Road 'ffizat ethtoWn, PA 17022 Cumberland Coun 7653 . ty. Fax 7,?-s?-s,7s Rate Schedule for Disposal of Construction and Demolition. Waste- Exhibit A n ? PENNSYLVANIA WASTE INDUSTRIES ASSOCIATION c/o Webber Associates One Westwind Way Lemoyne, PA 17043 Plaintiff V. SOLID WASTE AUTHORITY OF CUMBERLAND COUNTY 1 S. Hanover Street Carlisle, PA 17013 and COUNTY OF CUMBERLAND 1 Courthouse Square Carlisle, PA 17013 Defendants IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY CIVIL ACTION CIVIL TERM 07-1050 ANSWER OF COUNTY OF CUMBERLAND TO PLAINTIFF'S COMPLAINT AND NOW, comes the Defendant, County of Cumberland, by and through its Solicitor, Edward L. Schorpp, Esquire, and answers Plaintiffs Complaint as follows: 1. Denied. The averment of this paragraph constitutes a conclusion of law to which no answer is required. 2. Denied. After reasonable investigation, answering Defendant has no knowledge or information sufficient to form a belief as to the truth of these averments and the same are therefore denied. 3. Admitted. 4. Denied. The averment of this paragraph constitutes a conclusion of law to which no answer is required. 5. Denied. The averments of this paragraph constitute conclusions of law to which no answers are required. 6. Admitted. 7. Admitted. 8. Admitted. By way of further answer, the document speaks for itself. 9. Admitted. 10. Denied. The averments of this paragraph constitute conclusions of law to which no answers are required. 11. Denied. The averments of this paragraph constitute conclusions of law to which no answers are required. JURISDICTION AND VENUE 12. Denied. The averment of this paragraph constitutes a conclusion of law to which no answer is required. 13. Denied. The averment of this paragraph constitutes a conclusion of law to which no answer is required. THE PARTIES 14. Denied. After reasonable investigation, answering Defendant has no knowledge or information sufficient to form a belief as to the truth of these averments and the same are therefore denied. 15. Denied. After reasonable investigation, answering Defendant has no knowledge or information sufficient to form a belief as to the truth of the averment and the same is therefore denied. 16. Denied. After reasonable investigation, answering Defendant has no knowledge or information sufficient to form a belief as to the truth of the averment and the same is therefore denied. 17. Denied. After reasonable investigation, answering Defendant has no knowledge or information sufficient to form a belief as to the truth of the averment and the same is therefore denied. 18. Admitted. 19. Admitted. FACTUAL ALLEGATIONS COMMON TO ALL COUNTS 20. Admitted. 21. Admitted. By way of further answer, the document speaks for itself. 22. Admitted. By way of further answer, the document speaks for itself. 23. Admitted. By way of further answer, the document speaks for itself. 24. Admitted. By way of further answer, the document speaks for itself. 25. Admitted. By way of further answer, the document speaks for itself. 26. Denied. After reasonable investigation, answering Defendant has no knowledge or information sufficient to form a belief as to the truth of the averments and the same are therefore denied. 27. Denied. After reasonable investigation, answering Defendant has no knowledge or information sufficient to form a belief as to the truth of the averment and the same is therefore denied. 28. Denied. After reasonable investigation, answering Defendant has no knowledge or information sufficient to form a belief as to the truth of the averments and the same are therefore denied. 29. Denied. The averments of this paragraph constitute conclusions of law to which no answers are required. 30. Admitted in part, denied in part. The RFP speaks for itself. The remaining averments constitute conclusions of law to which no answers are required. 31. Denied. After reasonable investigation, answering Defendant has no knowledge or information sufficient to form a belief as to the truth of the averments and the same are therefore denied. The averments of this paragraph constitute conclusions of law to which no answers are required. 32. Denied. The averments of this paragraph constitute conclusions of law to which no answers are required. 33. Denied. The averments of this paragraph constitute conclusions of law to which no answers are required. 34. Denied. The averments of this paragraph constitute conclusions of law to which no answers are required. COUNTI DECLARATORY JUDGMENT REGARDING PREEMPTION 35. Paragraphs 1 through 34 of this Answer are hereby incorporated herein by reference. 36. Denied. The averments of this paragraph constitute conclusions of law to which no answers are required. 37. Denied. The averments of this paragraph constitute conclusions of law to which no answers are required. WHEREFORE, the County of Cumberland requests that the Complaint be dismissed and that it be awarded its costs in this action. COUNT II DECLARATORY JUDGEMENT REGARDING ULTRA VIRES 38. Paragraphs 1 through 37 of this Answer are hereby incorporated herein by reference. 39. Denied. The averments of this paragraph constitute conclusions of law to which no answers are required. 40. Denied. The averments of this paragraph constitute conclusions of law to which no answers are required. WHEREFORE, the County of Cumberland requests that the Complaint be dismissed and that it be awarded its costs in this action. Respectfully submitted, CUMBERLAND COUNTY Edward L. Schorpp, unty Solicitor Solicitor's Office Cumberland County Courthouse 1 Courthouse Square Carlisle, PA 17013 DATED: /JJi9iPcfi' S , 2007 PENNSYLVANIA WASTE INDUSTRIES ASSOCIATION c/o Webber Associates One Westwind Way Lemoyne, PA 17043 Plaintiff V. SOLID WASTE AUTHORITY OF CUMBERLAND COUNTY 1 S. Hanover Street Carlisle, PA 17013 and COUNTY OF CUMBERLAND 1 Courthouse Square Carlisle, PA 17013 Defendants IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY CIVIL ACTION CIVIL TERM 07-1050 VERIFICATION I, John C. Byrne, Chief Clerk of Cumberland County, Defendant herein and, as such I am authorized to make this verification on Defendant's behalf and have knowledge of the facts set forth in the foregoing and that said facts are true and correct to the best of my knowledge, information and belief. I understand that false statements made herein are subject to the penalties of 18 Pa. C. S. Section 4904 relating to unsworn falsification to authorities. Dated: (J" q , 2007 _ (LI PENNSYLVANIA WASTE INDUSTRIES ASSOCIATION c/o Webber Associates One Westwind Way Lemoyne, PA 17043 Plaintiff V. SOLID WASTE AUTHORITY OF CUMBERLAND COUNTY 1 S. Hanover Street Carlisle, PA 17013 and COUNTY OF CUMBERLAND 1 Courthouse Square Carlisle, PA 17013 Defendants IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY CIVIL ACTION CIVIL TERM 07-1050 CERTIFICATE OF SERVICE I hereby certify that a true and correct copy of the ANSWER OF COUNTY OF CUMBERLANDTO PLAINTIFF'S COMPLAINT was served upon the parties listed below by first class mail, postage-prepaid this 1'*ay of h't jeA , 2007: David J. Brooman, Esq. Andrew P. Foster, Esq. Maryanne Starr Garber, Esq. One Logan Square 18"' & Cherry Streets Philadelphia, PA 19103 Attorneys for Plaintiff Paul L Zeigler, Esq. 300 Bridge Street 2nd Floor P.O. Box B New Cumberland, PA 17070 J5t A. Walter, Paralegal olicitor's Office Cumberland County Courthouse 1 Courthouse Square Carlisle, PA 17013 Dater /9 2,00 7 C-) C ? Q r y ?J ? 1 ^r ti cy SHERIFF'S RETURN - REGULAR i " .,, CASE NO: 2007-01050 P COMMONWEALTH OF PENNSYLVANIA: COUNTY OF CUMBERLAND PENNSYLVANIA WASTE INDUSTRIES VS SOLID WASTE AUTHORITY OF CUMB CPL RICHARD E SMITH Sheriff or Deputy Sheriff of Cumberland County,Pennsylvania, who being duly sworn according to law, says, the within NOTICE AND COMPLAINT FOR was served upon CUMBERLAND COUNTY SOLID WASTE AUTHORITY OF the DEFENDANT , at 1608:00 HOURS, on the 27th day of February , 2007 at ONE SOUTH HANOVER STREET CARLISLE, PA 17013 by handing to TOM IMPHONA DIRECTOR a true and attested copy of NOTICE AND COMPLAINT FOR together with DECLARATORY JUDGEMENT and at the same time directing His attention to the contents thereof. Sheriff's Costs: Docketing 18.00 Service 4.40 Postage .39 Surcharge 10.00 00 32.79 Sworn and Subscibed to before me this day of , So Answers: 00 R. Thomas Kline 00/00/0000 By : ?Peputy Sheriff A. D. SHERIFF'S RETURN - REGULAR 4 CASE NO: 2007-01050 P COMMONWEALTH OF PENNSYLVANIA: COUNTY OF CUMBERLAND PENNSYLVANIA WASTE INDUSTRIES VS SOLID WASTE AUTHORITY OF CUMB CPL RICHARD E SMITH , Sheriff or Deputy Sheriff of Cumberland County,Pennsylvania, who being duly sworn according to law, says, the within NOTICE AND COMPLAINT FOR was served upon r nTMTTV nP r'TTMP7PT.AKn the DEFENDANT , at 1605:00 HOURS, on the 27th day of February-, 2007 at ONE COURTHOUSE SQUARE CARLISLE, PA 17013 by handing to JOANNE BURKHART (DEPUTY CHEIF OF CLERKS) a true and attested copy of NOTICE AND COMPLAINT FOR together with DECLARATORY JUDGEMENT and at the same time directing Her attention to the contents thereof. Sheriff's Costs: Docketing 6.00 Service .00 Affidavit .00 Surcharge 10.00 .00 310 8/b .1 C?_v 1-6.00 Sworn and Subscibed to before me this day of So Answers: R. Thomas Kline 00/00/0000 By. A. D. DRINKER BIDDLE & REATH LLP David J. Brooman, Esq. Attorney I.D. No. 36571 Andrew P. Foster, Esq. Attorney I.D. No. 46749 Maryanne Starr Garber, Esq. Attorney I.D. No. 82795 Tara L. Flynn, Esq. Attorney I.D. No. 60754 One Logan Square, 18'h & Cherry Streets Philadelphia, PA 19103 phone (215) 988 2700/fax (215) 988 2757 Attorneys for Plaintiff, Pennsylvania Waste Industries Association PENNSYLVANIA WASTE INDUSTRIES ASSOCIATION Plaintiff, IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY V. SOLID WASTE AUTHORITY OF CUMBERLAND COUNTY, et al. Defendants CIVIL ACTION 07-1050 Civil Term PRAECIPE TO SETTLE, DISCONTINUE, AND END TO THE PROTHONOTARY: Please mark all claims and counterclaims in this action settled, discontinued, and ended. By: David J. Brooman, sq. Attorney I.D. No. 57 Andrew P. Foster, Attorney I.D. No. 46749 Maryanne Starr Garber, Esq. Attorney I.D. No. 82795 Tara L. Flynn, Esq. Attorney I.D. No. 60754 One Logan Square 18th & Cherry Streets Philadelphia, PA 19103 215-988-2700 Attorneys for Plaintiff Pennsylvania Waste Industries Association PHLM606837\1 r-? ? 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