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HomeMy WebLinkAboutTown of Brookhaven - disposal of recyclablesRESOLUTION 2012-137 ADOPTED DOC ID: 7579 THIS IS TO CERTIFY THAT THE FOLLOWING RESOLUTION NO. 2012-137 WAS ADOPTED AT THE REGULAR MEETING OF THE SOUTHOLD TOWN BOARD ON JANUARY 31, 2012: RESOLVED that the Town Board of the Town of Southold hereby authorizes and directs Supervisor Scott A. Russell to execute the Intermunicipal Agreement between the Town of Southold and the Town of Brookhaven relating to disposal of rec¥clables by Southold Town at the Brookhaven Landfill Complex, at no cost to the Town, subject to the approval of the Town Attorney. Elizabeth A. Neville Southold Town Clerk RESULT: ADOPTED [UNANIMOUS] MOVER: Albert Krupski Jr., Councilman SECONDER: William Ruland, Councilman AYES: Ruland, Talbot, Doherty, Krupski Jr., Evans, Russell ORIGINAL INTERMUNICIPAL AGREEMENT BETWEEN THE TOWN OF BROOKHAVEN and THE TOWN OF SOUTHOLD THIS AGREEMENT (the "Agreement") made between the TOWN OF BROOKHAVEN ("BROOKHAVEN'), a municipal corporation of the State of New York, having its principal offices at One Independence Hill, Farmingville, NY 11738 and the TOWN OF SOUTHOLD, a municipal corporation of the State of New York, having its principal offices at 53095 Main Road, Southold, NY 11971 (hereinafter "SOUTHOLD") provides as follows: RECITALS: WHEREAS, municipal corporations in the State of New York, including the PARTIES herein, are authorized under General Municipal Law §119-o to enter into agreements for the performance among themselves or one for the other of their respective functions, powers and duties on a cooperative or contract basis; WHEREAS, Southold currently collects, receives or generates Recyclable materials including Fiber Recyclables and Commingled Recyclables, defined herein, that are suitable for processing or disposal, at the Landfill Complex operated by the Town of Brookhaven at Horseblock Road, Yaphank, N.Y. (hereinafter Brookhaven Landfill); and WHEREAS, Southold wishes to dispose of Recyclables defined herein at the Brookhaven Landfill Complex, and Brookhaven wishes to accept such material for processing under the terms set forth below; and WHEREAS, the cooperative action of the Town and Southold is expected to be to the economic benefit of each Party and will serve a public purpose for each Party. NOW, THEREFORE, IN CONSIDERATION OF THE FOREGOING AND THE MUTUAL COVENANTS AND AGREEMENTS HEREIN CONTAINED THE PARTIES AGREE, WARRANT AND COVENANT AS FOLLOWS: 1. Purpose and Intent. The purpose of this Agreement is to set forth the terms and conditions under which Southold will deliver, and Brookhaven will accept, Recyclables including Fiber Recyclables and Commingled Recyclables, as defined herein, at Brookhaven's Landfill Complex located on Horseblock Road, Yaphank, New York from the Southold Transfer Station located on Cox Lane, Cutchogue, NY. The parties hereto recognize and agree that the access to the Landfill Complex which is hereby granted to Southold by Brookhaven shall be governed solely by the terms of this Agreement which supersedes any other agreement in place at the time of execution between the Parties for the disposal of Recyclables defined herein. Definitions The term Brookhaven Landfill Complex ("Landfill" or "Brookhaven Facility") shall mean the waste management facility operated by the Town of Brookhaven at 350 Horseblock Road, Yaphank, N.Y. and shall include but not be limited to the Materials Recovery Facility ("MRF"), transfer station, landfill pile, and working face. The term Commissioner shall mean the Commissioner of the Depashnent of Waste Management of the Town of Brookhaven. The term Commingled Recyclables shall mean glass, plastic, ferrous metal, aluminum or other material capable of being processed and recovered at the Town of Brookhaven MRF, located at the Landfill complex on Horseblock Road, Yaphank, N.Y. The term Construction and Demolition Debris ("C&D") shall have the meaning set forth in 6 NYCRR 360-1.2(b)(38) (or any subsequent amendment thereto), subject to additional conditions as may be set forth in the Town of Brookhaven'.s Landfill Permit to Operate. The term Fiber Recyclables shall mean paper, newspaper, cardboard, or other similar paper material, as designated by the Commissioner, capable of being processed and recovered at the Town of Brookhaven Materials Recovery Facility, located at the Landfill complex on Horseblock Road, Yaphank, N.Y. The term Hazardous Waste shall have the meaning set forth in 6 NYCRR 371 (or any subsequent amendment thereto). The term Landfill Delivery Hours shall mean the hours of Brookhaven Landfill Complex operation which are 7:00 am - 4:00 pm Monday through Friday, and 7:00 am - 12:00 pm Saturday, except holidays annexed hereto as Appendix A. The term Materials Recovery Facility (MRF) shall mean the structures, machinery or devices, located at the Brookhaven Landfill, singly or in combination, designed, constructed and utilized primarily to separate, process, modify, convert, treat, or prepare collected recyclable solid waste components, which is included as part of a recyclables recovery program so that such component materials or substances or recoverable resources may be used as a raw material for new products or for useful purposes other than for energy recovery. The term Municipal Solid Waste Shall have the meaning set forth in 6 NYCRR 360-1.2(b)(106) (or any subsequent amendment thereto). The term Off-Specification Waste shall mean any and all waste, other than Hazardous Waste, which does not conform to the material requirements of any 2 Brookhaven facility or which are inconsistent with the materials approved for disposal in the Landfill. The term "Recyclables" means paper, newspaper, cardboard, glass, plastic, ferrous metal, aluminum or other material capable of being processed and recovered at the Town of Brookhaven MRF, located at the Landfill Complex on Horseblock Road, Yaphank, N.Y. and shall include both Fiber Recyclables and Commingled Recyclables. The term Reiectable Materials shall mean that portion of Recyclables that is not capable of being recovered and processed by the operation of the Brookhaven MRF. The term Southold Transfer Station shall mean the facility site located at, 6155 Cox Lane, Cutchogue, NY 11935 The term Transfer Station Hours shall mean hours of Southold Transfer Station operation which are 7:00 am -5:00 pm Monday through Sunday, except holidays annexed hereto as Appendix A. 3. The base term of this Agreement shall commence on the date of execution and shall expire on December 31, 2014. The term of this Agreement may be extended for up to two (2) additional one-year terms, exercised by the mutual agreement of the parties, in writing. 4. Fees, Payment and Weight Records Rec¥clables Tipping Fee and Payment. i. Commingled Recyclables. Southold shall pay Brookhaven a fee of Zero Dollars ($0.00) per ton of Commingled Recyclables delivered during the term of this Agreement and any extension thereof. All invoices from Brookhaven shall set forth the date, weight and fee for each load of material delivered and transported to the Brookhaven Landfill. ii. Fiber Recyclables. At anytime during the term of this Agreement or any extension thereafter, Southold may elect to deliver and Brookhaven may elect to accept Fiber Recyclables to the Brookhaven Landfill for processing at the MRF. Prior to delivery, the Parties shall negotiate the tip fee for Fiber Recyclables based, in part but not exclusively, on the amount to be delivered, current market conditions, and benefit to both Parties. At such time, the Parties my establish a tip fee for Fiber Recyclables or may elect to negotiate a single blended tip fee rate for the acceptance of all delivered Recyclable material including both Fiber and Commingled Recyclables. The blended tip fee shall be the Combined Recyclables Tip Fee. iii. Combined Recyclables Tip Fee. If the Parties establish a Combined Recyclables Tip Fee as provided herein in section 4 (A) (ii) above, the Combined Recyclables Tip Fee, shall replace the Commingled Tip fee established in section 4 (A) (i) above and be applied to both Commingled Recyclables and Fiber Recyclables delivered in accordance with sections 5 (A) and (B) herein. Weight Records. Billing shall be based upon weights recorded at the Brookhaven scales. Brookhaven may rely on the posted tare weights of delivery vehicles rather than exit weighing, but may check such tare weight by occasionally weighing or reweighing such vehicles upon exit from the Landfill complex. ii. In the event that the scales of the Town of Brookhaven are inoperable for reasons of maintenance or other cause, weighing of material and billing shall be based upon the scales of Southold. If the scales of both parties are inoperable, tare weights may be used. Billing Disputes In the event of any billing dispute, the aggrieved party shall promptly advise the other, in writing, of the amount at issue and the basis of such dispute, and shall provide such documentary evidence as may support its position. Southold shall pay all amounts set forth on Brookhaven invoices which are not in dispute and Brookhaven shall pay Southold all amounts set forth on Southold's invoice which are not in dispute and the parties and shall utilize the dispute resolution procedures of Paragraph 14 to resolve the dispute. Acceptance of Rec¥clables Commencing on the date of execution and continuing throughout the Term hereof, and subject to the terms of this Agreement, Southold agrees to deliver, or cause to be delivered to the Brookhaven Landfill all Commingled Recyclables collected, received, or generated by the Southold, which the parties project will be approximately 1,000 tons per year, provided however, that nothing herein shall constitute a warranty by the Southold that any minimum or maximum quantity shall be delivered on a weekly, monthly or annual basis. During the Term hereof, Southold may deliver, or cause to be delivered, to the Brookhaven Landfill Fiber Recyclables in addition to all Commingled Recyclables as described in paragraph 5(A) herein which the parties project will 4 be approximately 1,700 tons per year of Fiber Recyclables per year, provided however, nothing herein shall obligate Southold to deliver Fiber Recyclables nor constitute a warranty by Southold that any minimum or maximum quantity of Fiber Recyclables shall be delivered on a weekly, monthly or annual basis once Fiber Recyclables delivery has commenced. During the Term hereof, Brookhaven shall accept at the Brookhaven Facility the material described in paragraph 5(A) and 5(B), above, subject to Brookhaven's rejection rights set forth in paragraph 5(D) below. Brookhaven shall have the right to reject any deliveries from or on behalf of Southold if such deliveries: i. Are made at a time other than during the Landfill Delivery Hours. ii. Contain Hazardous Waste, medical waste, municipal solid waste, C&D, and or other material not authorized by this Agreement or otherwise fails to meet the requirements of applicable law or permit governing the Brookhaven Facility. In exercising its rejection rights pursuant to this provision, Brookhaven shall, at its discretion, accept the portions of such deliveries that, as the case may be, are not Hazardous Waste or medical waste or other unauthorized material. iii. Are made in vehicles not meeting the provisions of paragraph 6 below. iv. Contain Rejectable Material greater than five (5%) percent. If Brookhaven is unable to accept or Southold is unable to deliver Recyclables identified in paragraph 5(A) or 5(B) for any reason, the parties shall use their best efforts to reschedule the delivery of such material for delivery as soon as possible. 6. Transportation and Delivery Transportation of all Recyclables delivered to the Brookhaven Facility pursuant to this Agreement shall be provided by Southold at its sole cost and expense. Material transported hereunder shall originate at the Southold Transfer Station. B. Delivery of Recyclables Southold shall deliver approximately three loads of Recyclables each week to the Brookhaven Materials Recycling Facility during the Landfill Delivery Hours any day except Wednesdays, but if a designated Holiday (See Schedule A) falls on such day, then Recyclables shall be received on the next regular day with Landfill Delivery Hours available. 5 ii. Title to the Recyclable Material shall transfer to the Town of Brookhaven upon acceptance of material by Brookhaven at the Brookhaven Materials Recycling Facility. iii. If Southold is unable deliver any Recyclables for any reason, the parties shall use their best efforts to reschedule the delivery of such Recyclables as soon as possible. iv. During the Term hereof, Brookhaven shall accept at the Brookhaven Facility, all Recyclables made available by the Southold, subject to Brookhaven's rejection rights set forth in Section 4(D) above. Southold shall supply Brookhaven with a list of all vehicles owned or hired by Southold that are authorized to transport material pursuant to this Agreement, together with the identification and registration number of all such authorized vehicles, and Southold shall promptly notify Brookhaven of any change in any such list. The identification and registration number of each vehicle making deliveries hereunder shall be prominently displayed and permanently affixed to each vehicle. It shall be the responsibility of Southold to ensure that all vehicles delivering material to the Brookhaven Landfill pursuant to this agreement shall properly registered, equipped and insured according to applicable law, and all drivers shall be properly licensed. All drivers shall obey the internal traffic rules and regulations of the Brookhaven Landfill. Load Tracking Documents. Brookhaven reserves the right to employ the use of a Load Tracking Document for all materials delivered pursuant to this Agreement. In such event, Brookhaven shall provide not less than ten (10) days notice of the requirement for the use of a Load Tracking Document and shall provide a copy of the form document to Southold. Any load arriving at the Brookhaven Facility without such a tracking document shall be turned away. Upon presentation of the tracking document to Brookhaven personnel at the Brookhaven Landfill scale house, the Brookhaven representative shall mechanically sign and note the time of arhval on the tracking document. The driver of the delivery vehicle shall display the tracking document at all inspection and material sampling points within the Landfill. Landfill Hours. Brookhaven will be available to load and receive materials during the Landfill Delivery Hours with the exception of legal holidays. Brookhaven may, from time to time, modify the Landfill's hours of operation. In the event Southold wishes to access the Landfill beyond the normal hours of operation, Brookhaven reserves the right to assess any overtime costs incurred by Brookhaven to Southold. 7. Material Specifications and Testing Requirements. All material delivered hereunder shall be non-hazardous and meet the applicable requirements set forth in the Brookhaven Landfill 6 permit and the regulations of the New York State Department of Environmental Conservation. Brookhaven reserves the right to take samples and conduct tests upon materials received from Southold for the presence of Hazardous Waste or other unauthorized material. Such testing shall be at the sole cost and expense of the Town of Brookhaven, provided however, that in the event that Hazardous Waste, or other unauthorized material is found to be present in material from Southold, Southold shall bear the costs of all sampling, testing, handling and disposal Of such material. 8. Obligations for Rejected and Hazardous Wastes. In the event that any material delivered to the Brookhaven Landfill under this Agreement is determined to be Rejected as defined in paragraph 5(A) or Hazardous Waste or other unauthorized material, said material shall be rejected if such determination is made before acceptance. If such determination is made after acceptance, Southold shall be responsible for removal of the material if removal is determined by Brookhaven to be required, and shall in all events be responsible to reimburse Brookhaven for all expenses incurred as a result of such delivery and rejection. 9. Insurance. Each party hereto shall proceed on a self-insured basis, provided however, that all delivery vehicles shall be insured as required by law. 10. Indemnity Southold shall defend, indemnify and save harmless Brookhaven from and against all losses, and all claims, demands, payments, suits, actions, recoveries, judgments, costs and expenses including without limitation attorney's fees, in connection therewith, of every nature, including but not limited to claims for bodily injury, or death, by any third party and by or on behalf of Southold's Contractor, agents, servants or employees, arising out of or in connection with performance of this Agreement and caused, in whole or in part, by Southold, its agents, servants or employees. Brookhaven shall defend, indemnify and save harmless Southold from and against all losses, and all claims, demands, payments, suits, actions, recoveries, judgments, costs and expenses including without limitation attorney's fees, in connection therewith, of every nature, including but not limited to claims for bodily injury, or death, by any third party and by or on behalf of Brookhaven's Contractor and Southold's, agents, servants or employees, arising out of or in connection with performance of this Agreement and caused, in whole or in part, by Brookhaven, its agents, servants or employees. 11. Default and Termination. In the event of a breach of an obligation under this Agreement, the fight to recover damages will not ordinarily constitute an adequate remedy. Therefore, except as otherwise provided in this Agreement, neither party shall have the right to terminate its obligations under this Agreement except as follows: Brookhaven's Right to Terminate this agreement upon: i. ii. Brookhaven shall have the fight to terminate The persistent and repeated breach of the provisions of this agreement by Southold, provided that Brookhaven shall have provided written notice of such breach to Southold, and provided further that Southold shall have failed to cure such breach within 30 days of said notice; or The failure by Southold to pay any sum due, and not subject to dispute resolution pursuant to paragraph 12 hereof, for a period of 90 days. The Southold's Right to Terminate. Southold shall have the right to terminate this agreement upon; i. The persistent and repeated breach of the provisions of this agreement by Brookhaven, provided that Southold shall have provided written notice of such broach to Brookhaven, and provided further that Brookhaven shall have failed to cure such breach within 30 days of said notice. ii. The failure by Brookhaven to pay any sum due, and not subject to dispute resolution pursuant to paragraph 12 hereof, for a period of 90 days. Termination at Will and Liquidated Damages Notwithstanding any other provision of this Agreement to the contrary, either party may terminate this Agreement at any time after commencement upon i) not less than sixty (60) days written notice to the other party and ii) payment of the sum of fifty thousand ($50,000) dollars to the other party as liquidated damages in compensation for premature termination, it being agreed that the actual damages suffered by either party in the event of premature termination will be substantial but difficult to determine, and that the damages set forth herein are intended to serve as full compensation for the injured party in the event of such termination. Survival of Obligations It is expressly understood and agreed that any and all claims and obligations for payment of costs and expenses incurred under this Agreement prior to termination under this paragraph shall survive such termination. 12. Dispute Resolution In the event of any dispute under this Agreement, either party shall serve written notice to the other of the existence and nature of the dispute, the amount at issue, if any, and the provision of this agreement governing the dispute. The parties shall negotiate the dispute in good faith until either party advises the other, in writing, that an impasse exists. Thereafter, the exclusive means to resolve any dispute between the parties that arises out of this Agreement shall be through an action initiated in New York State Supreme Court, Suffolk County. Unless otherwise agreed in writing by the Parties, the Parties shall continue to perform their respective obligations under this Agreement during any Dispute proceeding. 13. Contact Persons. The contact persons for the parties to this Agreement shall be the following contact persons at the following addresses: Commissioner, Dept of Waste Management Town of Brookhaven One Independence Hill Farmingville, New York 11738 Southold Town Solid Waste Coordinator Town of Southold 53095 Main Road Southold, NY 11971 14. Compliance. Both Brookhaven and Southold shall comply with all Federal, State and Local Laws, roles, regulations, codes and ordinances in the performance of this Agreement and shall obtain, pay for and comply with any conditions contained in any permits, approvals and renewals thereof which are required to be obtained in the legal performance of this Agreement. 15. Invalidity of Particular Provisions. If any term of this Agreement or the application thereof to any person or circumstances shall to any extent, be invalid or unenforceable, the remainder of this Agreement or the application of such term or provision to persons or circumstances other than those as to which it is held invalid or unenforceable, shall not be affected thereby and each term and provision of this Agreement shall be valid and be enforced to the fullest extent permitted by law. 16. No Assignment. Neither Southold nor Brookhaven shall assign, transfer, convey, sublet or otherwise dispose of this Agreement, or any of its fight, title or interest therein, or its power to execute this Agreement, to any other person or corporation, except for the purposes described herein, without prior written consent, and any attempt to do any of the foregoing without such consent shall be of no effect. 17. No Modification. No modification of this Agreement shall be valid unless written in the form of an Addendum or Amendment signed by all parties. 18. Uncontrollable Circumstances. Neither Southold nor Brookhaven shall be liable for failure to fulfill their responsibilities as provided for in this Agreement, nor for any resultant damages or financial losses if such failure is caused by a catastrophe, riot, war, governmental order or regulation (other than by or of Brookhaven), act of God or other similar event beyond the reasonable control of Southold or Brookhaven. If such failure persists, or if after cessation of such failure, either Southold or Brookhaven is unable to render full or substantially full performance, Brookhaven may terminate this Agreement upon written notice given 30 days in advance of such termination. 19. Law Provisions. All provisions as required by Law are hereby deemed inserted. The Parties agree that nothing in this Agreement shall be construed so as to interfere with or diminish any municipal powers or authority. 20. Entire Agreement. It is expressly agreed that this instrument represents the entire agreement of the parties, supersedes any other agreement in place at the time of execution between and that all previous understandings are merged in this Agreement. 9 IN WITNESS WHEREOF, the parties hereto have set their hands and seal the date and year first above written. TOWN OF BROOKHAVEN ~'"~D~t y Sul~erVisor TOWN OFSOUTHOLD Date 10 STATE OF NEW YORK ) )SS.: COUNTY OF SUFFOLK ) On the ~ day of t/'gar¢~ ,2012, before me personally came [~a~l~e,a /t l,~/a/,s 4 , to me known, who, being by me duly sworn, did depose and say that~ is the tlll[llll~Deputy Supervisor of the TOWN OF BROOKHAVEN, the municipal corporation described in and which executed the foregoing instrument; that 4c~. signed bo' name thereto by order of the Town Board of the Town of Brookhaven. Notary gubhe ~ .... COUNTY OF SUFFOLK ) .~,~ .. Oo~ ] Onthe (q dayof ~q_0~ ,2012, before me personally came 5C~"v~(~ .~_ . ~ c~cs_~e~ ([ ,tomeknown, who, beingbymedulyswom, did depose and say that he is the . <;',-,~ro~r- c, ~'~ o r'- of the ~,~l ~ ~c> ~-t~tr~ Fca/ the municipal corporation descfibed~n ~tnd which executed the foregoing instrument; that he signed his name thereto by order ofthe-'F-~rt Board of the ~,o,~ ~-~ .ff6,4,-Pffv(d - ~Notary Public - LYNDA M. ~ NOTARY PUBLIC, State of New York No. 01 BO6020932 Qualified in ,SLiffolk County Terrn Exgires ~¢.t!ch 8.20 11 SCHEDULE A New Year's Day Martin Luther King Day Memorial Day Independence Day Labor Day Columbus Day Veterans Day Thanksgiving Day Christmas Day Holidays The dates of such holidays shall be the dates such holidays are observed in the Towns of Brookhaven and Southold pursuant to their respective employment contracts then in effect. In the event of conflict, dual dates shall be observed. 12