Exhibit 10.10.1 (Environmental Safeguards, Inc.)
The registrant has requested that portions of this exhibit be given confidential
treatment and the registrant has filed a confidential treatment request with the
Secretary of the Commission. In this exhibit, the registrant has omitted such
material and the registrant has marked this exhibit with a xxxx ***** to
indicate where material has been omitted.
HAZARDOUS WASTE RECYCLING SERVICES CONTRACT-U.S.
This Hazardous Waste Recycling Services Contract-U.S. ("Contract") is
entered into on the day hereinafter set forth by and between OnSite Technology
LLC, an Oklahoma limited liability company ("OnSite") with offices at 0000 Xxxxx
Xxxx Xxxx, Xxx 000 Xxxxxxx, Xxxxx 00000 and Rineco Chemical Industries, Inc.
("Customer") with offices at 000 Xxxxxx Xx, Xxxxxxx, Xxxxxxxx 00000.
THIS CONTRACT CONTAINS PROVISIONS RELATING TO INDEMNITY
RELEASE OF LIABILITY AND ALLOCATION OF RISK.
THIS CONTRACT CONTAINS ARBITRATION PROVISIONS.
1. THE WORK:
OnSite shall provide the necessary services, supplies and equipment to
perform recycling services utilizing an indirect thermal desorption unit and
associated equipment ("ITD Unit" or "Unit"), as specified in Exhibit A, which is
attached hereto and made a part hereof (collectively the "Work"). Customer
shall provide the services and supplies as specified on Exhibit A.
2. COMPENSATION AND PAYMENT:
2.1 COMPENSATION: Customer shall pay OnSite for performance of Work as
specified in Exhibit A plus any applicable sales, use or similar taxes.
2.2 PAYMENT: Charges for mobilization, demobilization, Work, and all other
applicable charges shall be invoiced upon completion of mobilization,
demobilization, completion of the Work, or at the end of the month in which such
Work was performed or other charges incurred, whichever shall first occur. All
invoices shall be mailed to Customer at X.X. Xxx 000, Xxxxxxx, Xxxxxxxx 00000.
Customer shall pay all invoices within thirty (30) days after receipt, except
that if Customer disputes an invoice or any part thereof, Customer shall, within
fifteen (15) days after receipt of the invoice, notify OnSite of the item
disputed, specifying the reason therefore, and payment of the disputed item may
be withheld until settlement of the dispute, but timely payment shall be made of
any undisputed portion. All payments shall be mailed to OnSite at 0000 Xxxxx
Xxxx Xxxx, Xxx 000, Xxxxxxx, Xxxxx 00000. Any sums (including amounts
ultimately paid with respect to a disputed invoice) not paid within thirty (30)
days shall bear interest at the rate of twelve percent (12%) per annum or the
maximum legal rate, whichever is less, from the due date until paid.
2.3 ATTORNEY'S FEES: If this Contract is placed in the hands of an attorney
for collection of any sums due hereunder, or suit is brought for breach of same,
or sums due hereunder are collected through bankruptcy or probate proceedings,
then the parties agree that the prevailing party shall be entitled to reasonable
attorney's fees and costs.
3 TITLE
Title to all materials recycled hereunder (both before, during and after
recycling) and including any substances recovered during such recycling shall
remain with Customer at all times. At no time shall OnSite take title to any
such materials or substances.
1
4 COMMENCEMENT OF WORK AND TERM; TERMINATION:
4.1 TERM FOR PILOT PROGRAM PHASE: The initial term of this Contract shall be
the "Pilot Program Phase." The Pilot Program Phase shall have a term of *****
operating days from the Commencement of Pilot Program Phase. Commencement of
Pilot Program Phase shall be the date on which OnSite's ITD Unit has been
delivered to the Work Site and set up and OnSite is ready to begin operations,
but in no event shall be later than ***** Units to the Work Site prior to
notification from Customer that all permits and approvals have been obtained. In
the event Customer has not obtained such approvals ***** by effective on such
date without either party having any further obligations hereunder. At the end
of the Pilot Program Phase the parties shall evaluate the operating results
under this Contract, specifically evaluating (i) throughput of the ITD Unit,
(ii) acceptability of processed solids residue for mixing with liquids (iii)
salability of the recycled liquid hydrocarbons residue and (iv) ability to
process metal strips. If the parties in good faith determine that the results of
the Pilot Program are acceptable, then the Contract shall immediately, without
further action on the part of either party, progress to the "Operating Phase,"
otherwise, the Contract shall terminate. At any time during the Pilot Program
Phase at Rineco's option Rineco can elect to move into the "Operating Phase."
4.2 TERM FOR OPERATING PHASE: Unless terminated as otherwise provided in this
Contract, the Operating Phase shall have a term of ***** from the Commencement
of Operations. The Commencement of Operations is defined as the date on which
the Operating Phase begins and will be automatically renewed on a year to year
basis for a one-year renewal term, unless either party gives the other party
sixty (60) days prior notice of its intent to terminate this Contract, effective
at the end of the initial term or any renewal term.
4.3 EARLY TERMINATION: Notwithstanding the provisions of Paragraphs 4.1 and
4.2, Customer or OnSite may direct the stoppage of the work and the termination
of this Contract even though there has been no default on the part of the other
party hereunder, by giving ninety (90) days prior written notice to the other
party. In the event such notice is given, this Contract will terminate on the
ninetieth (90th) day after notice is given. OnSite shall be entitled to payment
in accordance with Paragraph 2.2 for all work performed under the Contract until
termination.
5 INGRESS, EGRESS AND WORK SITE:
5.1 INGRESS AND EGRESS: Customer hereby assigns to OnSite all necessary rights
of ingress and egress with respect to the site on which the work will be
performed ("Work Site"). Should OnSite be denied free access to the Work Site
for any reason not reasonably under OnSite's control, any time lost by OnSite as
a result of such denial shall be paid at the applicable stand-by rate in Exhibit
A.
5.2 WORK SITE: Customer shall prepare a sound Work Site adequate in size and
capable of properly supporting OnSite's Unit pursuant to specifications provided
by OnSite which shall be subject to OnSite's reasonable approval. It is
recognized that Customer has superior knowledge of the Work Site and access
routes to the Work Site and must advise OnSite of any conditions or obstructions
which OnSite might encounter while in route to the Work Site or during
operations hereunder. In the event the Work Site is not prepared pursuant to
such specifications and loss or damage to the Unit results therefrom, Customer
shall, without regard to the other provisions of this Contract, including
paragraph 8.2 hereof, reimburse OnSite to the extent not covered by OnSite's
insurance, for all such loss or damage.
2
6 WORK METHODS AND PRACTICES:
6.1 COMPLIANCE WITH LAW: Each party hereto agrees to comply with all material
laws, rules and regulations of any state, federal or local governmental
authority which are now or may become applicable to that party's operations
covered by or arising out of the performance of this Contract. In the event any
provision of this Contract is inconsistent with or contrary to any applicable
federal, state or local law, rule or regulation, said provision shall be deemed
to be modified to the extent required to comply with said law, rule or
regulation and as so modified said provision and this Contract shall continue in
full force and effect.
6.2 PERMITS: Permits required for the Work shall be provided by the party
specified in Exhibit A.
6.3 SAMPLING AND TESTING:
6.3.1 PILOT PROJECT PHASE: During the Pilot Project Phase the Work
shall be sampled and tested based upon a protocol agreed to in advance
by OnSite and Customer. The protocol shall be subject to change by
agreement of the parties, during the Pilot Project Phase. Customer
shall bear the cost of the testing agreed to in the protocol. At or
before the completion of the Pilot Project Phase, OnSite and Customer
shall agree to the Inlet Specifications for the metal strips which may
be processed as part of the material to be remediated. Unless and
until such an agreement is entered into, the Operating Phase shall not
commence. OnSite shall pay for any additional testing that OnSite
requires. Both parties shall have access to the results of testing
performed during the Pilot Project Phase.
6.3.2 OPERATING PHASE: All materials recycled as part of the Work
shall be sampled and tested by the methods and with the frequency
agreed to by the parties. Customer shall directly pay for or reimburse
OnSite for all costs of such sampling and testing. IF REQUESTED BY
EITHER PARTY, SPLIT SAMPLES SHALL BE TAKEN FOR ALL TESTING AND ONE
SAMPLE RETAINED BY THE THIRD PARTY LAB OR OTHER DESIGNATED PARTY FOR
THIRTY (30) DAYS. CUSTOMER SHALL HAVE THIRTY-SIX (36) HOURS AFTER
RECYCLING OF EACH BATCH OF MATERIALS IN WHICH TO PULL TEST SAMPLES
FROM SUCH BATCH. (AFTER THIRTY-SIX (36) HOURS THE MATERIALS WILL BE
MOVED AND TEST RESULTS COULD BE INACCURATE.) CUSTOMER SHALL FURTHER
HAVE SEVEN (7) BUSINESS DAYS FROM WHEN EACH SAMPLE IS PULLED IN WHICH
TO HAVE THE SAMPLES TESTED AND REPORT SUCH TEST RESULTS BACK TO
ONSITE. CUSTOMER ACCEPTS AND WAIVES THE RIGHT TO REJECT ANY WORK THAT
IS NOT, SAMPLED, TESTED AND/OR REPORTED BACK TO ONSITE WITHIN THE
AGREED TIME PERIOD.
6.4 MEASUREMENT: All materials recycled as part of the Work shall be measured
by Customer at Customer's expense prior to recycling and remediating. The method
of measurement shall be as specified in Exhibit A, Section #2.
6.5 PERSONNEL TRAINING: All of OnSite's personnel that will operate its Unit
will be HAZWOPER certified under 29 CFR 1910.120. If requested by the Customer,
OnSite's personnel will be H2S certified.
6.6 DRUG, ALCOHOL AND FIREARM POLICY: OnSite has adopted a program to ensure a
drug, alcohol and firearm free Work Site. A copy of the policy is available from
OnSite.
3
6.7 HOURS OF OPERATION: Unless otherwise agreed to in writing by the parties,
OnSite's ITD Unit shall operate twenty-four (24) hour per day seven (7) days per
week.
7 WARRANTIES:
7.1 CUSTOMER'S WARRANTIES: Customer warrants that the materials to be
recycled by OnSite as part of the Work hereunder do not exceed the maximum inlet
specifications contained in Exhibit A. Customer further warrants that the
materials to be recycled do not materially differ from any other specifications
contained in the scope of Work in Exhibit A.
7.2 ONSITE WARRANTIES: *****.
7.3 ONSITE WARRANTY DISCLAIMER: ONSITE WILL WORK WITH CUSTOMER AND TAKE
DIRECTION FROM CUSTOMER WITH REGARD TO OPERATING TEMPERATURE BUT SUCH
TEMPERATURE SHALL NOT EXCEED ***** DEGREES. ONSITE THEREFORE MAKES NO WARRANTY
EITHER EXPRESS OR IMPLIED IN LAW WITH REGARD TO THE OUTLET SPECIFICATIONS OF THE
RECYCLED MATERIALS.
8 INSURANCE, INDEMNIFICATION, RELEASE AND RISK OF LOSS:
8.1 INSURANCE: During the term of this Contract, OnSite shall, at OnSite's
expense, maintain with an insurance company or companies authorized to do
business in the state where the Work is to be performed, insurance coverages of
the kind and in the amounts set forth below, insuring the liabilities
specifically assumed by OnSite in this Contract. OnSite shall, if requested to
do so by Customer, procure from the company or companies writing said insurance
a certificate or certificates that said insurance is in full force and effect
and that the company or companies writing said insurance shall endeavor to give
thirty (30) days prior notice to Customer of cancellation or material change to
the insurance. For liabilities assumed hereunder by OnSite, its insurance shall
be endorsed to provide that the underwriters waive their right of subrogation
against Customer. Customer will, as well, cause its insurer to waive
subrogation against OnSite for liability it assumes and shall maintain, at
Customer's expense, or shall self insure, insurance coverage of the same kind
and in the same amount as is required of OnSite, insuring liabilities
specifically assumed by Customer under this Contract:
8.1.1 Adequate Workers' Compensation Insurance complying with
applicable state laws or Employers' Liability Insurance with limits of
$1,000,000.
8.1.2 Comprehensive Public Liability Property Damage Insurance or
Public Liability Property Damage Insurance with a $1,000,000 combined
single limit; this policy includes Pollution Liability.
8.1.3 Automobile Public Liability Insurance with a $1,000,000
combined single limit death or injury and Automobile Public Liability
Property Damage Insurance with a $1,000,000 combined single limit.
4
8.2 INDEMNIFICATION
8.2.1 OnSite's Unit: OnSite shall assume liability at all times for,
and shall protect, defend and indemnify Customer, its officers,
directors, employees and agents from and against all claims, demands,
and causes of action of every kind and character resulting from,
damage to or destruction of OnSite's Unit and/or property or the
equipment and/or property of any of OnSite's subcontractors, if any,
regardless of when or how such damage or destruction occurs unless
such damage or loss is due to the gross negligence or willful
misconduct of Customer, and OnSite shall release Customer of any
liability for any such loss, except loss or damage under paragraph5.2.
8.2.2 Customer's Equipment: Customer shall assume liability at all
times for, and shall protect, defend and indemnify OnSite, its
officers, directors, employees, members, managers and agents from and
against all claims, demands, and causes of action of every kind and
character resulting from, damage to or destruction of Customer's
equipment and/or property or the equipment and/or property of any of
Customer's contractors (other than those covered by the provisions of
paragraph 8.2.1), or Customer's client, if any, regardless of when or
how such damage or destruction occurs unless such damage or loss is
due to the gross negligence or willful misconduct of OnSite, and
Customer shall release OnSite of any liability for any such loss.
8.2.3 OnSite agrees to indemnify, save harmless and defend Customer
from and against any and all liabilities, penalties, forfeitures,
suits, losses, damages and costs and expenses (including costs of
defense, settlement, and reasonable attorney fees ), which Customer
may hereafter incur or become responsible for, as a result of death or
bodily injury to any person, (including the employees of each party
hereto and the employees of their subcontractors), destruction or
damage to or loss of use of any property other than set forth in 8.2.1
and 8.2.2 or contamination of or adverse effects on the environment to
the extent directly caused by: the negligence or intentional
misconduct of OnSite, its employees, agents, representatives, or
subcontractors in the performance of this Contract, provided, however,
that such indemnification shall not apply to the extent such
liabilities result from Customer's negligence or intentional
misconduct or from a breach of this Contract by Customer.
8.2.4 Customer agrees to indemnify, save harmless and defend OnSite
from and against any and all liabilities, penalties, forfeitures,
suits, losses, damages and costs and expenses (including costs of
defense, settlement, and reasonable attorney fees ), which OnSite may
hereafter incur or become responsible for, as a result of death or
bodily injury to any person, (including the employees of each party
hereto and the employees of their subcontractors), destruction or
damage to or loss of use of any property other than set forth in 8.2.1
and 8.2.2 or contamination of or adverse effects on the environment to
the extent directly caused by: the negligence or intentional
misconduct of Customer, its employees, agents, representatives, or
subcontractors in the performance of this Contract provided that such
indemnification shall not apply to the extent such liabilities result
from OnSite's negligence or intentional misconduct or from a breach of
this Contract by OnSite.
8.2.5 In the event that any claim for indemnification hereunder is
contributed to the negligence or intentional misconduct of both OnSite
and Customer, the parties agree that any and all liabilities,
penalties, forfeitures, losses, damages and costs and expenses
(including costs of defense, settlement, and reasonable attorney, )
shall be apportioned among the parties on the basis of their
comparative degrees of fault which shall be determined in the absence
of agreement by the parties through binding arbitration pursuant to
Section 13. hereunder.
5
8.3 EXCLUDED MATERIALS: NOTWITHSTANDING ANY OTHER PROVISION OF THIS
AGREEMENT CUSTOMER SHALL RELEASE ONSITE OF ANY LIABILITY FOR, AND SHALL PROTECT,
DEFEND AND INDEMNIFY ONSITE, ITS OFFICERS, DIRECTORS, EMPLOYEES, MEMBERS AND
MANAGERS FROM AND AGAINST ALL CLAIMS, DEMANDS, AND CAUSES OF ACTION OF EVERY
KIND AND CHARACTER, WITHOUT LIMIT AND WITHOUT REGARD TO THE CAUSE OR CAUSES
THEREOF OR THE NEGLIGENCE OF ANY PARTY OR PARTIES, ARISING IN CONNECTION WITH
NATURALLY OCCURRING RADIOACTIVE MATERIALS ("NORM"), NARM, HIGH LEVEL RADIOACTIVE
WASTE, LOW LEVEL RADIOACTIVE WASTE, MIXED WASTE, OR PCBS ("COLLECTIVELY
"EXCLUDED MATERIALS"). Customer shall also provide OnSite with all pertinent
information with regard to Excluded Materials at the site where the Work shall
be performed.
8.4 CONSEQUENTIAL DAMAGES: Neither party shall be liable to the other for
special, indirect or consequential damages resulting from or arising out of this
Contract, including, without limitation, loss of profit or business
interruptions including loss or delay of production, however same may be caused.
8.5 INDEMNITIES: The indemnities and releases and assumptions of liability
extended by the parties hereto under the provisions of Article 8 shall inure to
the benefit of the parties, their parent, holding and affiliated companies and
their respective officers, directors, employees, members, managers, agents and
servants. EXCEPT AS OTHERWISE EXPRESSLY LIMITED HEREIN IN 8.2.3 AND 8.2.4, IT
IS THE INTENT OF PARTIES HERETO THAT ALL INDEMNITY OBLIGATIONS, RELEASES AND
LIABILITIES ASSUMED BY SUCH PARTIES UNDER TERMS OF THIS CONTRACT, INCLUDING
WITHOUT LIMITATION 8.2.1 and 8.2.2 HEREOF, BE WITHOUT LIMIT AND WITHOUT REGARD
TO THE CAUSE OR CAUSES THEREOF (INCLUDING PREEXISTING CONDITIONS), THE
UNSEAWORTHINESS OF ANY VESSEL OR VESSELS, STRICT LIABILITY, BREACH OF CONTRACT,
BREACH OF WARRANTY, VIOLATION OF STATUTE OR REGULATION OR THE NEGLIGENCE OF ANY
PARTY OR PARTIES, WHETHER SUCH NEGLIGENCE BE SOLE, JOINT OR CONCURRENT, ACTIVE
OR PASSIVE. The terms and provisions of paragraph 8.2 shall have no application
to claims or causes of action asserted against Customer or OnSite by reason of
any agreement of indemnity with a person or entity not a party hereto.
8.6 ***** INDEMNITY:
8.6.1 OnSite indemnification of Customer. OnSite agrees that it will
defend at its own expense, including court costs and attorney fees, all suits
against Customer. ***** OnSite agrees that it will pay all sums that, by final
judgment or decree in any such suits, may be assessed against Customer. *****
The above obligation of OnSite is subject to Customer providing OnSite with (i)
timely written notice of all claims ***** and of any suits brought or threatened
against Customer, and (ii) the authority to assume the sole defense there of
through its own counsel and to compromise or settle any suits, at OnSite's
expense, so far as this may be done without prejudice. ***** If any such suit is
filed, ***** OnSite may at its expense ***** or Customer may immediately
terminate this Contract.
8.6.2. Customer indemnification of OnSite. Customer agrees that it will
defend at its own expense, including court costs and attorney fees, all suits
against OnSite.
6
*****. Customer agrees that it will indemnify and hold OnSite harmless with
respect to any and all sums that, by final judgment or decree in any such suits,
may be assessed against OnSite*****. The above obligation of Customer is subject
to OnSite providing Customer with (i) timely written notice of all claims *****
and of any suits brought or threatened against OnSite, and (ii) the authority to
assume the sole defense thereof through its own counsel and to compromise or
settle any suits, at Customer's expense, so far as may be done without
prejudice *****.
9 WAIVER, AMENDMENTS AND ASSIGNMENT:
9.1 NO WAIVER: No waiver by any party of any default by any other party in
the performance of any provision, condition or requirement herein shall be
deemed to be a waiver of, or in any manner release the other party from,
performance of any other provision, condition or requirement herein, nor deemed
to be a waiver of, or in any manner release the other party from, future
performance of the same provision, condition or requirement; nor shall any delay
or omission of any party to exercise any right hereunder in any manner impair
the exercise of any such right or any like right accruing to it thereafter.
9.2 AMENDMENT: No amendment to this Contract shall be effective unless in
writing and signed by a duly authorized agent or representative of each party.
9.3 ASSIGNMENT: Neither party may assign this Contract without the prior
written consent of the other, which consent will not be unreasonably withheld.
Notwithstanding the preceding sentence, either party may assign this Contract to
an affiliate (an entity which is more than 50% owned and controlled by a party)
or to a third party acquirer in the event of a sale or other disposition of
substantially all the assets of a party.
9.4 SURVIVAL: The rights and obligations under paragraphs 8.2 through 8.6 and
paragraph 16 shall survive the termination or assignment of this Contract.
9.5 SEVERABILITY: In the event any provision of this Contract should be deemed
inconsistent with or contrary to any federal, state or municipal law, rule or
regulation, said provision shall be deemed modified to the least extent
necessary to be valid or, if not possible, deleted and this Contract shall
continue in full force and effect without affecting the enforceability of the
remaining provisions, duties and liabilities set forth herein.
9.6 MERGER: This Contract contains the entire agreement between the parties
hereto with respect to the transactions contemplated herein and all prior and/or
contemporaneous understandings and agreements shall merge herein. There are no
additional terms, whether consistent or inconsistent, oral or written, which are
intended to be part of the parties' understanding except as contained in this
Contract.
9.7 MULTIPLE COUNTERPARTS: This Contract may be executed in several
counterparts, each of which shall be an original, and all of which, when taken
together, shall constitute but one and the same agreement.
9.8 RIGHTS OF CREDITORS AND THIRD PARTIES UNDER CONTRACT: This Contract is
entered into between for the exclusive benefit of the parties hereto. This
Contract is expressly not intended for the benefit of any creditor of any of the
parties or any other person.
9.9 FACSIMILE SIGNATURE: This Contract shall be effective and deemed executed
for all purposes and with all formalities with the facsimile signature of any of
the parties and shall be deemed an original for all purposes.
7
10 FORCE MAJEURE:
Neither party shall be liable to the other for any delays or damage or any
failure to act due, occasion or caused by reason of any laws, rules, regulations
or orders promulgated by any federal, state or local governmental body or the
rules, regulations or orders of any public body or official purporting to
exercise authority or control respecting the operations covered hereby,
including the procurement or use of tools and equipment, or due, occasioned or
caused by strikes, action of the elements, water conditions, inability to obtain
fuel or other critical materials, or other causes beyond the control of the
party affected thereby. In the event that either party hereto is rendered
unable, wholly or in part, by any of these causes to carry out its obligations
under this Contract, it is agreed that such [party shall give notice and details
of Force Majeure in writing to the other party as promptly as possible after its
occurrence. Except as otherwise provided herein, in such cases the obligations
of the party giving the notice shall be suspended during the continuance of any
inability so caused. In the event the force majeure is not reasonably expected
to be removed within ninety (90) days, either party may terminate this Contract
at the end of said ninety (90) day period.
GOVERNING LAW:
THIS CONTRACT SHALL BE CONSTRUED, GOVERNED, INTERPRETED, ENFORCED AND
LITIGATED, AND THE RELATIONS BETWEEN THE PARTIES DETERMINED IN ACCORDANCE WITH
THE LAWS OF TEXAS.
-----
11 ARBITRATION:
Any and all disputes, controversies or claims arising out of or in
connection with this Contract or the breach, termination, validity thereof, or
the Work performed hereunder shall be settled by final and binding arbitration
in accordance with the American Arbitration Association rules as presently in
force. This reference to arbitration shall be enforceable and judgment upon any
award rendered in any such arbitration may be entered in any court of competent
jurisdiction. Notwithstanding any provisions of local, state, federal,
national, international or other applicable law, the parties agree that the
arbitrators cannot award exemplary damages.
The appointing authority shall the American Arbitration Association.
The arbitration shall be heard and determined by one arbitrator. The arbitrator
shall be named by the appointing authority. The place of arbitration shall be
Houston, Texas or such other location mutually agreed upon by the parties. The
English language shall be used in the arbitral proceedings. The award shall be
made and payable in U.S. dollars free of any tax or other deductions. The award
may include interest from the date of any breach or other violation of this
Contract. The arbitrators shall fix the appropriate rate of interest from the
date of the breach or other violation to the date that the award is paid in
full. In no event, however, should the interest rate during such period be
lower than the prime commercial lending rate for favored borrowers announced
from time to time by the Wall Street Journal.
A legal representative is authorized to act for and bind the party and to
receive documents on behalf of the party. A legal assistant does not possess
these powers held by a legal representative. The claimant is required to
include the last known address versus the current address of the respondent
party in the statement of claim. The claimant is required to include only those
points of issue known by reasonable investigation at the time of the filing of
the statement of claim. The parties may stipulate whether discovery will be
limited or broad ranging. If the parties fail to so stipulate, the appointing
authority will determine the method of discovery that will be used. Parties may
use rebuttal witnesses upon reasonable notice to both the opposing party and the
arbitration panel. Parties may also introduce expert witnesses. All notices to
be given in connection with the arbitration shall be in writing.
12 SECURITY:
8
Customer shall provide, at its sole cost, adequate security to protect and
secure OnSite's personnel and ITD Unit in the area where the Work is being
performed.
13 INDEPENDENT CONTRACTOR
In the performance of any Work by OnSite for Customer, OnSite shall be
deemed to be an independent contractor, with the authority and right to direct
and control all of the details of the Work, Customer being interested only in
the results obtained. However, all Work contemplated shall meet the approval of
Customer and shall be subjected to the general right of inspection. Customer
shall have no right or authority to supervise or give instructions to the
employees, agents, or representative of OnSite, but such employees, agents or
representatives at all times shall be under the direct and sole supervision and
control of OnSite.
14 NOTICES:
All notices to be given with respect to this Contract, unless otherwise
provided for, shall be given in writing to the Customer and the OnSite
respectively at the addresses herein above shown. Notice may be given by fax,
overnight delivery and/or registered or certified mail. Notice shall be
effective upon delivery. Either party may change the address for notice by
giving the other party written notice.
15 CONFIDENTIALITY:
All confidential information obtained by OnSite in the conduct of its
operations hereunder or supplied by Customer in connection with the Work shall
be treated as confidential and shall not be divulged by OnSite to any third
party during the term of this Contract and for five years thereafter and shall
not be used by OnSite for any purpose other than fulfilling its obligations
under this Contract. All confidential information obtained by Customer with
regard to the Work hereunder or supplied by OnSite in connection with the Work,
including all technical information regarding OnSite's ITD Unit, indirect
thermal desorption or other process used by OnSite during the Work, shall be
treated as confidential and shall not be divulged by Customer to any third
party during the term of this Contract and for five years thereafter and shall
not be used by Customer for any purpose other than fulfilling its obligations
under this Contract. The provisions of this paragraph shall survive any
termination or assignment of this Contract. OnSite and Customer shall take all
reasonable efforts to insure that their respective employees, members, managers,
agents, representatives and/or subcontractors shall also be bound by this
paragraph. For purposes of this Contract confidential information shall be
defined as plans, technical information, process diagrams or plans, equipment
designs, process procedures and systems, suppliers, facilities, know-how,
technique, drawings, specifications, data, financial information and other
documentation or information, in oral, written or digital form which is either
non public, confidential or proprietary in nature produced or communicated by
either party (the "communicating party") to the other party (the "receiving
party") which constitute valuable trade secrets and are considered by the
communicating party to be confidential and proprietary. Confidential
information shall not include: (i) information which at the time of disclosure
is or thereafter becomes within the public domain other than by reason of the
receiving party's breach of this Contract; (ii) information which prior to
disclosure hereunder was in the receiving party's possession without violation
of any secrecy obligation to the communicating party either directly or
indirectly; (iii) information which subsequent to disclosure hereunder is
obtained by the receiving party from a third party who is lawfully in possession
of such information and which information is not subject to restrictions on
disclosure or use; or (iv) the results of the testing performed under this
Contract, which the parties agree shall be subject to public disclosure.
This Contract is agreed to and accepted by the parties on this _____ day of
_____________________, 2003.
Rineco Chemical Industries, Inc.
9
-------------------------
By:
Title:
OnSite Technology LLC
-------------------------
By:
Title:
10
EXHIBIT A
HAZARDOUS WASTE RECYCLING SERVICES CONTRACT - DATED ____________________________
BETWEEN ONSITE TECHNOLOGY LLC AND RINECO CHEMICAL INDUSTRIES INC.
SPECIFICATIONS, COMPENSATION AND SPECIAL PROVISIONS
1. SCOPE OF WORK
The operation, supervision and maintenance of one (1) OnSite Technology
Indirect Thermal Desorption Series 6000 System at Customer's facility in
Haskell, Arkansas, USA.
PILOT PROJECT PHASE -During the ***** operating ***** period of the Pilot
Project Phase, the ITD Unit will recycle various batches of ***** waste with the
resulting recycled materials consisting of liquid hydrocarbons and solids. The
batches of ***** waste will be recycled at varying temperatures to determine the
most efficient recycling parameters but in no event shall the temperature exceed
***** degrees.
OPERATING PHASE-Recycling of ***** waste with the resulting
recycled materials consisting of liquid hydrocarbons, solids and metal.
2. INLET SPECIFICATIONS:
Customer represents that petroleum contamination levels of the material to be
remediated and recycled are less than ***** parts per million total petroleum
hydrocarbons (volume). Saturation levels (other than total petroleum
hydrocarbons) of material to be remediated and recycled do not exceed ***** (by
volume). COMBINED TOTAL LIQUID SATURATION LEVELS SHALL NOT EXCEED ***** BY
VOLUME.
------
Customer represents that the materials to be recycled will consist of
industrial hazardous waste, but will not contain any NORM (except exempt
levels), NARM, high level radioactive waste, low level radioactive wastes, mixed
wastes or PCBs. Debris contained in materials to be recycled shall be *****
by ***** inch strips of thin metal or will not exceed ***** in diameter. As
required by Section 6.3.1 of the Contract, the Operating Phase shall not
commence until OnSite and Customer have entered into a written agreement as to
the dimensions of the metal which will be included in the materials to be
recycled and such written agreement shall become part of the Inlet
Specifications. The total sulfur content shall be less than ***** ppm (Wt) [or
***** by weight]. Customer will provide OnSite with a waste characterization of
each batch of waste submitted to OnSite for recycling.
Feed Specifications: ***** Waste
Measurement: Method to be determined and agreed to between the parties.
3. OUTLET SPECIFICATIONS AND TESTING:
PILOT PROJECT PHASE: There are no outlet specifications set for the Pilot
Project Phase. The testing during the phase shall be based on the protocol
defined by Customer and agreed upon by the parties.
OPERATING PHASE: Outlet material will consist of recycled liquid
hydrocarbons, recycled water and recycled solids. OnSite shall not be required
to meet any specific level of total petroleum hydrocarbons in the recycled
solids.
4. DISPOSITION OF TREATED MATERIALS:
Recycled liquid hydrocarbons and water shall be returned to Customer.
Recycled solid materials shall be disposed of by Customer.
11
5. COMPENSATION:
OnSite shall be paid the following rates for the Work performed under the
Contract:
a. MOBILIZATION: Customer shall provide all required and necessary
transportation to mobilize OnSite's equipment from their Houston, Texas location
to Haskell, Arkansas and pay OnSite a mobilization fee of *****.
b. DEMOBILIZATION: Customer shall provide all required and necessary
transportation to demobilize OnSite's equipment from their Haskell, Arkansas
location to Houston, Texas and pay OnSite a demobilization fee of *****.
c. MOVING RATE: During the time, if any, that OnSite's Unit is in transit
between two of Customer's Work Sites, Customer shall pay OnSite the out of
pocket cost of said move plus the applicable Stand by Rate as set forth below.
d. PILOT PROJECT PHASE-RATE: During the Pilot Project Phase of this
Contract Customer shall pay OnSite ***** for testing. In no event shall the
Pilot Project Phase exceed ***** calendar days.
e. OPERATING PHASE-RATE MONTHLY RATE: During the Operating Phase of this
Contract, Customer shall pay OnSite a base rate of ***** per ITD Unit per
calendar month plus ***** per ton for all material processed in excess of *****
tons per month. OnSite shall guarantee to process a minimum of ***** tons per
calendar month of the material described in article two (2) above (INLET
SPECIFICATIONS) and discharge temperatures not to exceed ***** degrees. The base
rate shall become applicable from the Commencement of Operations and continue to
be applicable until termination of this Contract, including during any period in
which the unit is Moving.
f. FORCE MAJEURE RATE. The force majeure rate per twenty-four (24) hour day
(unmanned) per ITD unit shall be *****. The force majeure rate shall be in
effect when Work is unable to proceed due to force majeure as defined in the
Contract.
g. REIMBURSABLE RATE: Customer shall reimburse OnSite for the costs of
material, equipment, Work or services which are to be furnished by Customer as
provided for herein but which for convenience are actually furnished by OnSite
at Customer's request, plus 20% for such cost of handling.
h. OPEN SHOP LABOR: OnSite's bid is based on using open shop labor. Should
conditions require the use of union labor, OnSite's price will be adjusted.
6. PERMITS
OnSite shall provide the following permits: NONE
Customer shall provide the following permits: ALL
12
7. EQUIPMENT, MATERIALS AND SERVICES TO BE FURNISHED BY DESIGNATED PARTY:
The machinery, equipment, tools, materials, supplies, instruments, services
and labor hereinafter listed, including any transportation required for such
items, shall be provided at the Work Site at the expense of the party designated
by an X in the appropriate column.
ITEM CUSTOMER OnSite
----------------------------------------------------------------------- -------- ------
1. Complete Indirect Thermal Desorption Unit & Condenser X
--- ----------------------------------------------------------------------- -------- ------
2. Machinery to load and move contaminated and recycled material
(manned and maintained) X
--- ----------------------------------------------------------------------- -------- ------
3. Furnish and maintain adequate ingress and egress to Work Site X
--- ----------------------------------------------------------------------- -------- ------
4. Clear and grade Work Site and provide site for Unit X
--- ----------------------------------------------------------------------- -------- ------
5. Hazwoper 29 CFR 1910.120 training X
--- ----------------------------------------------------------------------- -------- ------
6. Petroleum Industry Safety Training Program (16 hour OSHA approved) X
--- ----------------------------------------------------------------------- -------- ------
7. Additional customer required training & specialty safety equipment
(Including H2S training) X
--- ----------------------------------------------------------------------- -------- ------
8. Fuel-Diesel or natural gas at 5 psi X
--- ----------------------------------------------------------------------- -------- ------
9. Fuel tanks and Fuel lines to Unit X
--- ----------------------------------------------------------------------- -------- ------
10. Water and water lines to Unit X
--- ----------------------------------------------------------------------- -------- ------
11. Toilet Facilities X
--- ----------------------------------------------------------------------- -------- ------
12. Trash receptacle X
--- ----------------------------------------------------------------------- -------- ------
13. Catering for OnSite personnel X
--- ----------------------------------------------------------------------- -------- ------
13
ITEM CUSTOMER OnSite
----------------------------------------------------------------------- -------- ------
14. Living Quarters for OnSite personnel X
--- ----------------------------------------------------------------------- -------- ------
15. Phone and Fax/ Long Distance Services X
--- ----------------------------------------------------------------------- -------- ------
16. Communications equipment for OnSite operations- phone and fax X
--- ----------------------------------------------------------------------- -------- ------
17. Sand or soil to add to materials to be recycled, if necessary X
--- ----------------------------------------------------------------------- -------- ------
18. Lines from condenser to recycled storage X
--- ----------------------------------------------------------------------- -------- ------
19. Storage vessels (tanks) for and disposal of recycled liquids (oil and
water) X
--- ----------------------------------------------------------------------- -------- ------
20. Storage vessels for and disposal of recycled solids X
--- ----------------------------------------------------------------------- -------- ------
21. Water for rehydration
(including tankage and transportation if needed) X
--- ----------------------------------------------------------------------- -------- ------
22. Electric power for OnSite Unit/ Requires. If utility power is used as
main supply then a back up generator may be required for emergency
shut downs.
X
--- ----------------------------------------------------------------------- -------- ------
23. Operators and assistants for operation of OnSite Unit X
--- ----------------------------------------------------------------------- -------- ------
24. Any site specific transportation moves, if applicable X
--- ----------------------------------------------------------------------- -------- ------
25. Site security X
--- ----------------------------------------------------------------------- -------- ------
26. First aid and/or medical attention at site X
--- ----------------------------------------------------------------------- -------- ------
27. Office Space (heated and air conditioned) X
--- ----------------------------------------------------------------------- -------- ------
28. Storage and Staging area for materials to be recycled X
--- ----------------------------------------------------------------------- -------- ------
14
ITEM CUSTOMER OnSite
----------------------------------------------------------------------- -------- ------
29. Any additional facilities, materials or equipment required to meet
governmental standards including carbon filter and/or thermal oxidizer X
--- ----------------------------------------------------------------------- -------- ------
30. Carbon filtration System or thermal oxidizer for non-condensed VOC's
from secondary off-gas of required X
--- ----------------------------------------------------------------------- -------- ------
31. Fresh Water Tanks if Required X
--- ----------------------------------------------------------------------- -------- ------
32. Transportation of Fresh Water if Required X
--- ----------------------------------------------------------------------- -------- ------
15
EXHIBIT B
The following clauses, when required by law, are incorporated in the Contract by
reference as if fully set out:
1. The Equal Opportunity Clause prescribed in 41 CFR 60-1.4.
2. The Affirmative Action Clause prescribed in 41 CFR 60-250.4 regarding
veterans and veterans of the Viet Nam era.
3. The Affirmative Action Clause for handicapped workers prescribed in 41 CFR
60-741.4.
4. The Certification of Compliance with Environmental Laws prescribed in 40
CFR 15.20.
16
