EXHIBIT 10.60
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SERVICES AGREEMENT
BETWEEN
WASTE CONTROL SPECIALISTS, LLC
AND
COMMODORE SOLUTION TECHNOLOGIES, INC.
FOR
WASTE TREATMENT SERVICES
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THE AGREEMENT
This Waste Treatment Services Agreement ("Agreement") is entered into this 12th
day of February 2001 by and between Commodore Solution Technologies, Inc., a
Delaware corporation with its principal offices located at ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇. ▇▇,
▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ("Commodore"), and Waste Control Specialists, LLC, a
Delaware limited liability company with its principal offices located at ▇▇▇▇ ▇.
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇ ("WCS"). Commodore and WCS shall individually be
referred to as a "Party", and collectively as the "Parties".
WHEREAS, WCS maintains a waste treatment and storage facility in Andrews, Texas
and has contracted with certain entities to take and process volumes of
radioactive, TSCA, RCRA, mixed, and non-hazardous waste residuals ("Materials");
WHEREAS, Commodore and certain of its affiliates provide waste treatment
technologies and, in particular, a non-thermal waste treatment process known as
solvated electron technology (SET) and are in the business of providing
radioactive, TSCA, RCRA mixed, and non-hazardous waste residuals processing
services, and are equipped to process and capable of processing the Materials;
WHEREAS, WCS desires to contract with Commodore to establish a facility for the
processing of such Materials in accordance with the terms and conditions herein
set forth; and
WHEREAS, the Parties wish to establish herein the procedures and provisions
applicable to the processing of the Materials by Commodore for the account of
WCS or its customers.
NOW, THEREFORE, in consideration of the mutual promises contained herein and
other good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, and intending to be legally bound hereby, the parties agree
as follows:
DEFINITIONS
"Materials" means radioactive, TSCA, RCRA, mixed, and non-hazardous waste
residuals.
"Public Authority" includes the U.S. Environmental Protection Agency (EPA), the
Texas Department of Health (TDH), the Texas Natural Resources Conservation
Commission (TNRCC), and any state, local or regional agency which has authority
over the generation, storage, treatment, transportation or disposal of any waste
material.
"Work" or "Project" means the activities to be undertaken by Commodore as
described in the Work Release hereinafter defined.
"Work Release" means the formal written document between WCS and Commodore
setting forth the waste characterization, schedule and scope of the particular
treatment effort required by WCS at its facility and agreed to by both parties.
ARTICLE 1.0. ESTABLISHMENT OF PROCESSING FACILITY.
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1.1 Promptly following the date of this Agreement, Commodore shall
undertake (the "Undertaking") to establish a residuals processing
capability (a "Processing Facility") on the premises of WCS located at
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇ (the "WCS Site"), which premises
shall be prepared in accordance with Section 1.2 hereof (the "Facility
Site"). The Processing Facility shall have the capabilities set forth
on Exhibit A (the "Scope of Work") attached hereto and incorporated
herein. Unless circumstances beyond Commodore's reasonable control
intervene, and provided that the Facility Site is prepared in
accordance with Section 1.2, Commodore anticipates that the Processing
Facility shall be completed and ready to process Materials by January
20, 2001 (for the D/2 equipment) and/or 30 days after Facility Site is
ready for mobilization and installation of the S-10 equipment at the
Processing Facility. Such Undertaking shall include, at the sole cost
and expense of Commodore, the following, in each case as more
particularly set forth in the Scope of Work:
* assembly and shipment to the Facility Site of equipment described
in Exhibit A;
* personnel necessary to construct the Processing Facility on the
Facility Site; and
* personnel necessary to operate the Processing Facility;.
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1.2 Commodore and WCS agree to cooperate with each other and coordinate the
shipment of the equipment described in Section 1.1 above and Exhibit A
and the preparation of the Facility Site as described in this Section
1.2 such that prior to the delivery of any equipment, the Facility Site
preparations shall be completed by WCS. WCS agrees, at its sole cost
and expense, to prepare the Facility Site and to provide for or on
behalf of Commodore all listed items in Exhibit A.
The "Facility Site" shall be a portion of the WCS mixed waste
processing room ("Permacon") and adjacent space, as more fully
described in WCS site licensing and permitting documentation. WCS, at
its sole cost and expense, will prepare the Facility Site to accept
certain pieces of the Commodore D/2 and/or S-10 system (the treatment
cell as a minimum) inside the Permacon, and other pieces installed
outside and adjacent to the Permacon, as agreed to by the parties and
in compliance with permitting and licensing requirements. Certain
penetrations of the Permacon may be required for interconnections
between certain pieces of S-10 equipment, the payment for all of which
shall be the sole responsibility of WCS. As part of its responsibility
to provide the Facility Site, WCS, at its sole cost and expense, shall
also bring all necessary utilities to the inside or adjacent to the
outside of the Permacon, including power, water, etc., for the S-10,
and needed for operation of the equipment. These requirements are
outlined in Exhibit A, Equipment Specifications.
Each of the foregoing shall be provided in accordance with the specifications
for such items as set forth on Exhibit A and Exhibit B attached hereto and
incorporated herein.
ARTICLE 2.0 PROCESSING OF MATERIALS, EXCLUSIVITY
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2.1 Subject to the terms and conditions herein, Commodore agrees to accept
and process Materials that meet the specifications ("Conforming
Materials") set forth on Exhibit A hereto. Commodore has the right to
not accept materials for treatment that will result in a payment to it
of less than $2.00 per pound. Commodore shall process all conforming
Materials to the specifications set forth on Exhibit A hereto.
2.2 In consideration for the mutual promises in this Agreement and unless
otherwise agreed in writing by both of the Parties:
2.2.1 Commodore shall accept and process all Conforming Materials
received from WCS throughout the term of this agreement;
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2.2.2 WCS shall provide Commodore the first right to process all
conforming materials meeting the specifications of Exhibits A
and B over any other technology on the WCS site throughout the
term of this Agreement except as restricted by permit, license,
or any other regulatory constrain and/or by any customer
limitation;
2.2.3 Commodore shall process Conforming Materials under WCS' existing
"Broad Spectrum Contract" (dated 1998 with ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Company, LLC) exclusively for WCS throughout the term of this
Agreement.
2.3 Commodore shall not install any other SET equipment or similar SET
equipment at a commercial facility for processing Material that
otherwise could be processed at WCS using Commodore's SET equipment
unless WCS provides written consent to Commodore for each such Material
to be processed. Such request for written consent shall trigger the
following right:
2.3.1 WCS shall have the sole elective right upon Commodore's request
for consent to:
2.3.1.1 Continue under the existing contract with an automatic
extension of five (5) years of said contract; or,
2.3.1.2 Opt to purchase Commodore's D/2 and/or SL-10 equipment
and the appropriate license(s) to operate such
equipment from Commodore for a total price of
$1,000,000 (one million dollars). Should WCS elect to
purchase under this provision, WCS may contract with
Commodore for additional services related to the
purchased technology.
ARTICLE 3.0 PROCESSING COMPENSATION
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3.1 WCS shall pay to Commodore compensation for waste treatment services at
the rates corresponding to such services or events on Exhibit B
attached hereto and made a part hereof. The rates in Exhibit B can be
reviewed each year and adjusted with agreement of each party for
inflation or as may be necessary to ensure a profitable operation.
3.2 Commodore will submit invoices to WCS monthly during the term of this
Agreement covering all volumes received and treated during the prior
calendar month. All payments on invoices are due within 45 days of
WCS's receipt of a correct invoice. WCS will notify Commodore of any
disputed amounts within thirty (30) days of receiving the invoice. The
parties, in good faith, will resolve any disputed portions of such
invoice. Not withstanding any dispute, the portion of any invoice that
is undisputed will be paid within 45 days of its receipt. Disputed
amounts will be paid within 30 days of dispute resolution.
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3.3 Payments due Commodore under this Agreement shall be subject to
interest of one percent (1%) per month commencing (i) for undisputed
amounts on the forty-sixth (46th) calendar day after receipt of
invoice, and (ii) for disputed amounts on the thirty first (31st)
calendar day after resolution of the dispute.
ARTICLE 4.0 UNDERTAKINGS AND REPRESENTATIONS OF THE PARTIES.
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4.1 Each of Commodore and WCS shall comply, and shall require each of their
respective employees, agents, representatives and invitees to comply
with the requirements of any and all applicable laws, regulations,
rules, permits, licenses, authorizations and orders in connection with
their respective obligations under this Agreement. Notwithstanding the
foregoing, except for a period of time during Commodore's treatment of
Materials, WCS shall be responsible for procuring, maintaining and
assuring compliance with all permits, approvals, permissions and other
rules and regulations regarding the handling, storage, transportation,
processing, recycling and disposal of all Materials and derivatives
thereof before, during and after delivery of Materials to Commodore for
treatment services. Commodore shall be responsible for procuring,
maintaining and assuring compliance with all permits, approvals,
permissions and other rules and regulations regarding the storage and
treatment of all Materials and derivatives during Commodore's treatment
process at the Processing Facility.
4.2 Unless otherwise agreed, Commodore, at its sole cost and expense, shall
provide all labor, including without limitation, all supervisory and
engineering support, and all equipment and materials needed to process
the Conforming Materials in accordance with this Agreement. WCS, at its
sole cost and expense, will provide labor and support for material
handling and preparation prior to delivery to Commodore and after
treatment by Commodore.
4.3 WCS represents, warrants and agrees that title to all Material, whether
or not processed under this Agreement, shall be held by and at all
times remain exclusively with WCS or its customers. Commodore shall at
no time be deemed or construed to take actual or constructive title to
any Materials hereunder. Except for a period of time during Commodore's
treatment of Materials, WCS agrees to indemnify, defend and hold
harmless Commodore from and against any and all claims, claims of right
and/or causes of action, now existing or hereafter arising or relating
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to any third party claim that Commodore has or had ownership of the
Materials or the handling, storage, transportation, treatment,
recycling and/or disposal of all Material and derivatives thereof.
4.4 Each of the Parties represents and agrees that it has not offered,
given, promised to give, or authorized giving, and will not offer,
give, promise to give, or authorize giving, directly or indirectly, any
money or anything else of value to any person, including without
limitation any government official, political party, political
official, candidate for political office or any official of state
industries, in connection with the solicitation of Materials
contemplated by this Agreement or any other activities hereunder.
ARTICLE 5.0 WARRANTIES OF COMMODORE.
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5.1 Product Warranties; Exclusive Remedies
Commodore warrants that the Materials processed by it hereunder will
conform to the specifications set forth on Exhibit A, attached hereto.
In the event any process Materials fail to comply with this warranty
and WCS notifies Commodore in writing of such nonconformity, Commodore
shall correct such nonconformity by reprocessing same, but if not
remedied within thirty (30) days of the notice of nonconformity, WCS
may take reasonable measures necessary to correct such nonconformity
and may deduct its costs that as are incurred from the amounts owed
Commodore and / or may directly invoice Commodore.
5.2 Exclusivity of Warranties and Remedies
The warranties in this article are exclusive and in lieu of all other
warranties, whether statutory, express or implied (including without
limitation all warranties of merchantability and fitness for particular
purposes and all warranties arising from course of dealing or usage of
trade). The remedies provided herein are WCS's exclusive remedies for
any failure of Commodore to comply with its obligations to treat
wastes. Correction of any defect or nonconformity in the manner and for
the period of time provided above shall constitute complete fulfillment
of all such liabilities of Commodore whether the claims of WCS are
based in contract, in tort (including negligence or strict liability),
or otherwise with respect to or arising out of the products and
services furnished or performed hereunder.
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5.3 Commodore warrants that sufficient funds are available and committed
for the entire cost of the Work and that it has full authority to enter
this Agreement and to perform its obligations under this Agreement.
5.4 Commodore warrants that it holds all applicable patents on its D/2 and
SET-10 equipment and shall fully defend any such contrary claim, demand
or suit at its sole expense, even if the same is groundless.
ARTICLE 6.0 UNDERTAKINGS, REPRESENTATIONS AND WARRANTIES OF WCS
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6.1 WCS represents that the WCS Site and all utility connections and other
requirements set forth in this Agreement (i) shall be available and
accessible in accordance with the specifications described in Exhibit A
attached hereto and at the times required hereunder; and (ii) shall
comply with all applicable laws, rules, codes and regulations of any
public governmental Authorities.
6.2 WCS shall be responsible for all dealings with applicable regulatory
agencies in obtaining and maintaining any required authorizations,
licenses and permits for Commodore to carry out its obligations under
this Agreement. Commodore shall be responsible for fully supporting WCS
in obtaining and maintaining any required licenses and permits for WCS
to carry out its obligations under this Agreement.
6.3 WCS warrants that it knows of no outstanding judicial or administrative
orders or decrees and there is no known litigation or proceedings
pending before any court or Public Authority relating to the treatment
of target materials or waste streams, the WCS Facility or any of them,
which could reasonably be known to affect the performance of the
services to be provided by Commodore under this Agreement.
6.4 WCS warrants that it has full authority to take any lawful action with
respect to the Materials/waste streams, including causing it to be
analyzed, packed, stored, transported and disposed of.
6.5 WCS shall provide for and grant to Commodore legal access to the WCS
Facility to perform the acts and take the steps necessary and
appropriate to perform the Work, including with limitation, bringing
ammonia, sodium, tools and vehicles onto the Project Site. Commodore,
its owners, directors, management and employees shall confine its
activities to those areas on the WCS site that are designated by WCS
and which are necessary to perform the work.
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6.6 WCS warrants that sufficient funds are available and committed for the
entire cost of the Work when it issues a Work Release and that it has
full authority to enter this Agreement and to perform its obligations
under this Agreement.
ARTICLE 7.0 INDEPENDENT CONTRACTOR RELATIONSHIP
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Commodore is and shall be an independent contractor in the performance of the
Work covered by this Agreement, maintaining complete control of its employees
and operations. Neither Party, nor anyone employed by such Party, shall be
construed to be an agent, representative, employee or servant of the other Party
in connection with any of the activities contemplated by this Agreement.
ARTICLE 8.0 CONFIDENTIAL INFORMATION
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8.1 Except to the extent required by competent legal or regulatory
authority, the Parties agree to keep all information of a proprietary
or confidential nature delivered or otherwise acquired from the other
Party as a result of performing services in confidence during and for a
period of five (5) years following the termination of this Agreement
and to use such information solely for the purpose contemplated by this
Agreement. Each Party agrees to not divulge, nor permit any of its
employees, officers, directors, shareholders, affiliates, agents or
representatives to divulge such information, or any part thereof, to
any third party without prior written consent.
8.2 All information developed or disclosed by either party under this
Agreement and deemed to be proprietary and/or confidential information
("Proprietary Information") shall be identified promptly in writing to
the other party as proprietary or confidential and how the information
was disclosed to either party.
8.3 Certain aspects of Commodore's Solvated Electron Technology ("SET(TM)")
and related patents consist of Proprietary Information. Certain
"Practical Applications" of SET are subject to pending patent
applications and, therefor, also Proprietary Information. All of
Commodore's technological know-how, pending patent application
information and related information is proprietary and herein referred
to as "Commodore's Proprietary Information". All Proprietary
Information disclosed by Commodore under this Agreement relating to
SET, technological know-how, pending patent application information and
other similar information shall, unless otherwise stated by Commodore,
be deemed Commodore's Proprietary Information. Title to all Commodore
Proprietary Information and all improvements and modifications
developed by Commodore under this Agreement relating to SET or
Commodore's Proprietary Information shall, unless otherwise agreed to
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by the parties in writing, shall be and remain the exclusive property
of Commodore. Commodore has not granted any royalty free licenses to
WCS nor to the federal, state or local governments to make, use or
sell, or to have made, used or sold Commodore's Proprietary
Information.
8.4 Proprietary Information shall not be disclosed by either party to any
other person except to those individuals who need access to such
Proprietary Information to the extent needed to ensure proper
performance of the Services and who have agreed to abide by the
provisions of this section. Proprietary Information shall not be used
for any purpose other than as reasonably necessary for the proper
performance of the Services.
The parties to this Agreement shall not be liable to each other for
disclosure or use of the other party's Proprietary Information which:
(i) is in or enters the public domain through no act or omission of the
receiving party or its Representatives; or (ii) is in the possession of
the receiving party or its representatives, at the time of disclosure,
lawfully obtained by the receiving party or its representatives, from a
source other than the disclosing party, and not subject to any
obligation of confidentiality or restrictions on use; (iii) is
independently developed by the receiving party or its representatives;
(iv) is or becomes generally known to or readily ascertainable by
proper means; or (v) is required to be released by law or court order
(but only after actual prior written notice has been delivered to WCS
and/or Commodore).
8.5 The parties to this Agreement shall return all Proprietary Information
relating to this Agreement to the other upon request or upon
termination of this Agreement, whichever occurs first. Both parties to
this Agreement shall have the right to retain a copy of the Proprietary
Information for its internal records, subject to the restrictions and
obligations set forth in this Section. Nothing in this Agreement shall
be construed to give WCS or Commodore or any other party a right to use
WCS' or Commodore's Proprietary Information for any purpose not
expressly stated herein. This Section shall survive three (3) years
after termination of this Agreement.
8.6 Deliverables, analyses and reports ("deliverables") developed under
Work Releases to this Agreement shall be the property of WCS. Commodore
shall not disclose the deliverables relating to the Services to a third
party without the prior written authorization of WCS.
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ARTICLE 9.0 INSURANCE
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9.1 During the term of the Agreement, Commodore shall maintain at its sole
cost, the following type of insurance with insurers acceptable to WCS.
9.1.1 Commercial General Liability - insurance with a combined single
limit of $1,000,000 per occurrence with a minimum aggregate
limit of $3,000,000. The policy shall include products/completed
operations, contractual, broad form property damage, and
contractor-protective coverage. The policy shall include a Cross
Liability provision and coverage shall be on an "occurrence"
basis.
9.1.2 Workers' Compensation/Employers Liability - insurance with the
following limits:
Workers' Compensation Statutory
Employers Liability - $100,000 per occurrence
9.1.3 Vehicle Liability - insurance to cover property damage or bodily
injury to third parties as a result of the use of any
Contractor's vehicles. The policy shall have a minimum limit of
$1,000,000 per occurrence.
All the insurance policies shall provide a waiver of subrogation in favor of
WCS. In addition, the general liability policy shall name WCS as an additional
insured.
9.2 During the term of the Agreement, WCS shall maintain at its sole cost,
the following type of insurance with insurers acceptable to Commodore.
9.2.1 Commercial General Liability insurance with a combined single
limit of $1,000,000 per occurrence with a minimum aggregate
limit of $1,000,000. The policy shall include products/completed
operations, contractual, broad form property damage, and
contractor-protective coverage. The policy shall include a Cross
Liability provision and coverage shall be on an occurrence
basis.
9.2.2 Workers' Compensation/Employers Liability - insurance with the
following limits:
Workers' Compensation - Statutory
Employers Liability - $100,000 per occurrence
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9.2.3 Vehicle Liability - insurance to cover property damage or bodily
injury to third parties as a result of the use of any
Contractor's vehicles. The policy shall have a minimum limit of
$1,000,000 per occurrence.
All the insurance policies shall provide a waiver of subrogation in favor of
Commodore. In addition, the general liability policy shall name Commodore as an
additional insured.
Any Sub-contractors employed by Commodore shall maintain the same level of
insurance required of Commodore. Alternatively, Commodore's insurance policies
may be extended to cover Sub-contractor.
Prior to the inception of any work under this agreement, Commodore shall provide
WCS with an insurance certificate(s) as evidence that the required insurance is
in force. Commodore will provide renewal certificates to WCS as long as this
agreement is in force. Such certificates shall specify that WCS shall be given
thirty (30) days notice prior to cancellation or material change of any of the
required insurance policies.
ARTICLE 10.0 INDEMNITIES; LIMITATION ON LIABILITY
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10.1 Commodore agrees to indemnify and hold WCS, any WCS client, their
respective subsidiaries and affiliates, and WCS representatives
harmless from and against any and all indemnifiable claims associated
with any injury to or illness or death of any Commodore employee or any
employee of Commodore's subcontractors, subsidiaries or affiliates or
loss or damage to Commodore's property or its subcontractors property,
which arises out of or is incident to services performed under this
agreement, and regardless of the cause, including, without limitation,
the negligence of the indemnitee, excluding however, injury, death or
property damage caused by the indemnitee's gross or sole negligence or
willful misconduct. Commodore shall fully defend any such claim, demand
or suit at its sole expense, even if the same is groundless.
10.2 WCS agrees to indemnify and hold Commodore, their respective
subsidiaries and affiliates, and Commodore representatives harmless
from and against any and all indemnifiable claims associated with any
injury to or illness or death of any WCS employee or any employee of
WCS's subcontractors, subsidiaries or affiliates or loss or damage to
WCS's property or its subcontractors property, which arises out of or
is incident to services performed under this agreement, and regardless
of the cause, including, without limitation, the negligence of the
indemnitee, excluding however, injury, death or property damage caused
by the indemnitee's gross or sole negligence or willful misconduct. WCS
shall fully defend any such claim, demand or suit at its sole expense,
even if the same is groundless.
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ARTICLE 11.0 FORCE MAJEURE
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11.1 If either Party is rendered unable by force majeure to perform its
obligations (other than obligations to make payments) under this
Agreement as set out herein, it is agreed that upon such Party giving
the other Party written notice, the Party giving notice shall not be
liable to the other Party for failure or delay in such performance
hereunder. Force majeure includes war (whether declared or undeclared),
fire, flood, lightning, earthquake, storm or any other act of God;
strikes, lockouts or other labor difficulties; civil disturbances,
riots, sabotage, accident or explosion; any official order, directive
or mandate by any governmental authority or instrumentality thereof
that, in the reasonable judgment of the Party affected, makes it
necessary to delay or curtail performance.
11.2 Performance under this Agreement shall be suspended during the period
of any such force majeure event to the extent made necessary by such
event. Any force majeure event shall so far as reasonably possible, be
remedied with all reasonable dispatch; provided, however, that the
settlement of strikes, lockouts, industrial disputes or disturbances
shall be entirely within the discretion of the party affected.
Performance under this Agreement shall resume to the extent made
possible by the end or amelioration of the force majeure event.
11.3 Upon the occurrence of any event of force majeure, the Party affected
shall give written notice to the other party as soon as reasonably
possible and, to the extent reasonably possible, shall inform the other
party of the anticipated duration of the event of force majeure, and
the performance to be affected by the suspension or curtailment under
this Agreement, as well as an estimate of the continued duration of
such force majeure.
11.4 Notwithstanding anything to the contrary in this Agreement, either
party may elect to terminate this Agreement without additional notice
after the other party has been unable to perform due to force majeure
for a consecutive period of one-hundred eighty(180) days.
ARTICLE 12.0 TERM, TERMINATION AND ENTIRE AGREEMENT
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12.1 The term of this Agreement shall begin on the date hereof, and unless
terminated earlier pursuant to the terms of this Agreement, shall
expire on the fifth anniversary following the date treatment services
are initiated by Commodore, provided that the terms of this Agreement
may be extended for five (5) additional consecutive two (2) year
renewal terms unless terminated earlier pursuant to the terms of this
Agreement by either party.
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12.2 Termination of Agreement
This Agreement may be immediately terminated upon any material breach
of this Agreement by a Party, so long as such breach has not been cured
within one-hundred eighty (180) days of written notice of such breach
to the breaching Party.
Either party may immediately terminate this Agreement or WCS may invoke
its rights as set forth in Section 2.3.1.1.2 (Purchase) either during
or after the initial term upon written notice to the other party if the
other party: (i) has been adjudicated bankrupt; or, (ii) has filed a
voluntary petition of bankruptcy; or, (iii) has made an assignment for
the benefit of creditors; or (iv) has had a receiver appointed for such
a party. Notice of any of the preceding events shall be communicated in
written form within ten (10) days of such notice to the other Party.
12.3 Entire Agreement
This Agreement and all amendments duly approved and attached hereto
incorporate all prior understandings relating to its subject matter,
contain the entire agreement of the Parties with respect to their
subject matter; and shall not be modified except by written instrument
executed by each Party.
ARTICLE 13.0 MISCELLANEOUS
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13.1 Survival of Covenants
The covenants set forth in Sections 8 and 10 of this Agreement are of a
continuing nature and shall survive the expiration, termination or
cancellation of this Agreement regardless of reason.
13.2 Notice
Any notice provided or permitted to be given under this Agreement must
be in writing, and may be served by fax, courier, or deposited in the
mail, addressed to the party to be notified, postage prepaid, as set
forth below. Notice given by mail shall be deemed delivered and
effective seven (7) days after being deposited in the mail. Notice by
fax or courier shall be deemed delivered and effective as of the time
of actual delivery. For purposes of notice the addresses of the parties
shall be as follows:
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If to WCS:
Waste Control Specialists, LLC
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Fax No: ▇▇▇-▇▇▇-▇▇▇▇
If to Commodore:
Commodore Solution Technologies, Inc.
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇, PE
Fax No: ▇▇▇-▇▇▇-▇▇▇▇
Either Party may change its address for notice by providing the other party with
notice of such change.
13.3 Waiver
The failure of a Party to insist upon strict performance of any
provision of this Agreement shall not constitute a waiver of, or
estoppel against asserting, the right to require performance in the
future. A waiver or estoppel in any one instance shall not constitute a
waiver or estoppel with respect to a later breach.
13.4 Severability
If any of the terms and conditions of this Agreement are held by any
court of competent jurisdiction to contravene, or to be invalid under,
the laws of any political body having jurisdiction over this subject
matter, that contravention or invalidity shall not invalidate the
entire Agreement. Instead, this Agreement shall be construed as
reformed to the extent necessary to render valid the particular
provision or provisions held to be invalid, consistent with the
original intent of that provision. The rights and obligations of the
parties shall be construed and enforced accordingly, and this Agreement
shall remain in full force and effect as reformed.
13.5 Governing Law; Interpretation; Dispute Resolution
The validity, construction and performance of this agreement shall be
governed by and construed in accordance with the laws of the state of
Texas. The Parties agree that the exclusive jurisdiction and venue for
the resolution of any dispute arising out of this Agreement will be the
courts in the State of Delaware.
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13.6 Counterpart Execution
This Agreement may be executed in any number of counterparts with the
same effect as if all the Parties had signed the same document. All
counterparts shall be construed together and shall constitute one and
the same instrument when executed by each Party.
13.7 Assignment; Successors; and Assigns.
Commodore may assign its rights and obligations under this Agreement to
its parent company without the consent of WCS and WCS may assign its
rights and obligations under this Agreement to its parent companies
without the consent of Commodore. No party shall assign any of its
rights or obligations in and under this Agreement to other parties
without first obtaining the prior written consent of the other party.
Except as otherwise provided, this Agreement shall apply to, and shall
be binding upon the parties hereto, their respective successors and
permitted assigns, and all persons claiming by, through, or under any
of these persons.
13.8 No Partnership or Joint Venture.
Nothing contained in this Agreement shall be construed as creating a
partnership, joint venture or other entity or combination among the
parties and each party shall remain solely responsible for the actions
of its own employees and representatives.
EXECUTED and EFFECTIVE as of February 12th, 2001.
Commodore Solution Technologies, Inc Waste Control Specialists, LLC
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇ By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
---------------- -------------------
Print Name: ▇▇▇▇ ▇▇▇▇▇▇ Print Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Title: President Title: VP - Operations &
General Manager
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EXHIBIT A
SCOPE OF WORK
-------------
1.0 GENERAL
--- -------
Commodore shall provide waste treatment services for WCS as authorized by a
written Work Release in accordance with the terms and conditions of this
Agreement. Actual work tasks are to be limited to those activities requested for
treatment by WCS and agreed upon by CAS (or vice versa) by means of the Work
Release. Upon receipt of a request for services, Commodore shall prepare a Work
Release describing the scope of services to be provided and anticipate, a timely
schedule for execution by the parties and Agreement that the waste material
meets the SET D/2 or S-10 treatment specifications. Upon acceptance by WCS, WCS
shall issue a Work Release authorization to proceed.
1. Commodore will provide all supervision, SET(TM)equipment, materials,
tools, and subcontracted items necessary for the performance and
completion of the Work.
2. Commodore will treat waste at WCS' Facility Site and will advise and
assist WCS in arranging for the shipping, transportation, treatment,
and/or return shipping to clients or other recipients of any new
materials requiring removal and treatment from a client's site by:
(1) installing a D/2 by January 20, 2000 and a S-10 SET unit, within 30
days of the S-10 SET unit is authorized at the WCS Facility and
maintaining permit(s) in the name of Commodore and/or WCS (as
appropriate) for treating waste of the same classification as the
materials needing treatment by clients;
(2) assisting WCS in identifying other clients whose waste streams may
be viable opportunities to treat at the WCS Facility;
(3) advising and assisting WCS in the evaluation and selection of
transporters when requested by WCS;
(4) preparing documents and reports as required by Public Authorities
for the confirmation of treatment of materials at the WCS Facility
utilizing WCS' EPA identification number for approval and execution
by WCS.
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3. Commodore shall be responsible for the payment of all taxes plus taxes
covering the services to be performed, including the payment of all
applicable taxes covering its employees. Commodore shall not be
responsible for the collection or payment of any State sales, use,
gross receipts or similar tax. If Commodore is required to pay such
State taxes, it will ▇▇▇▇ WCS accordingly and WCS shall promptly
reimburse Commodore for the amount of such tax upon receipt of invoice
therefor.
4. Commodore shall erect and properly maintain, as required by applicable
federal, state, and local safety laws, rules and regulations, necessary
safeguards for the protection of its employees. It is understood and
agreed that Commodore will eliminate or ▇▇▇▇▇ any safety hazard which
has been caused by Commodore's negligence, willful misconduct or bad
faith, however, Commodore shall have no responsibility for the
elimination or abatement of safety hazards created or otherwise
resulting from Work at the WCS Facility carried on by other persons or
firms directly employed by WCS as separate contractors or by WCS
employees and agents.
5. Commodore shall ensure all its employees working at WCS shall meet
appropriate health, safety, and environmental requirements required by
Public Authorities and WCS policies and procedures, licenses,
authorizations, and permits.
6. Unless otherwise instructed, Commodore shall treat all Conforming
Materials to meet Universal Treatment Standards (for VOA's & SVOA's).
7. WCS shall furnish, at no cost to Commodore, when applicable, reasonable
information on the materials to be treated describing: physical
characteristics, reports, investigations, legal limitations, legal
description, including written information which WCS may possess or the
presence of any substances or conditions at the locations or sites
where the material was received from which may pose a threat to human
life, health or safety, and any other reports or documents that may be
reasonably requested by Commodore.
8. WCS shall be responsible for removal and transportation of all sample
material to and from the WCS Facility, including any residual material
or secondary waste resulting from Commodore's treatment process that
must be returned to generators or to the laboratory(ies) at which such
analysis will be conducted or to another appropriate facility.
Commodore will utilize their best efforts to minimize the quantity of
any residual material or secondary waste resulting from Commodore's
treatment process and support activities.
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9. WCS will sign all generator manifests and obtain and maintain in force
appropriate registrations, permits, licenses, and approvals which the
owner/operator of the WCS Facility is reasonably required to obtain and
maintain by law or Public Authorities.
2.0 PROCESS CAPABILITIES AND MATERIAL SPECIFICATIONS
--- ------------------------------------------------
2.1 General Process Capabilities
Commodore's solvated electron technology (SET) is a patented process
for the reductive destruction of many organic molecules and is
extremely effective in the dehalogenation of halogenated organic
compounds. In the process, contaminants are destroyed by a chemical
reduction mechanism, whereby the functional organic compounds are
converted to petroleum hydrocarbons and metal salts.
In application, contaminated materials are placed into a treatment cell
and mixed with a solvated electron solution. Chemical reactions then
strip the halogen ions and reduce the organic compound. At the end of
the reaction, ammonia within the treatment cell is removed and
recycled.
Commodore will place Conforming Materials received from WCS (using
either a lift machine or other conveying mechanism) into the D/2 and/or
S-10 treatment cell and mix the material with a solvated electron
solution. Chemical reactions then strip the halogen ions and reduce the
organic compound. At the end of the reaction, ammonia within the
treatment cell is removed and recycled.
2.2 Conforming Material Specifications
Commodore's SET D/2 and S-10 system(s) has been successful at
remediating a wide variety of toxic chemicals. For the WCS treatment
installation, the following criteria must be met for successful, single
run treatment with the goal to remove the organic constituent(s) to
below regulatory limits: The target compound to be treated must be able
to be chemically reduced.
(1) The total reducible organic contaminants to be treated are equal to
or less than 20,000 ppm.
(2) Total water content is less than or equal to 25%.
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(3) No size reduction of material is required. Material must be less
than 6" in diameter when delivered to the system.
(4) The waste stream and any of its constituent(s)/target compounds
must not be shock-sensitive.
(7) Such other criteria as Commodore, in its exercise of scientific and
reasonable discretion, shall establish.
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1.2 SET S-10 SYSTEM EQUIPMENT SPECIFICATIONS
S-10 System Treatment Cell
-------------------- ------------------------------------- -- ----------------- ---------------------------------------
Technology Solvated Electron Technology Size 49" diameter x 12'-0" long
-------------------- ------------------------------------- ----------------- ---------------------------------------
Process Batch Capacity 140 cubic feet
-------------------- ------------------------------------- ----------------- ---------------------------------------
Cycle Time 3-4 Hours Material Stainless steel
-------------------- ------------------------------------- ----------------- ---------------------------------------
Throughput 5000 pounds per day (average) Mixer Horizontal shaft, paddle mixer,
manual speed control (50-150 rpm)
-------------------- ------------------------------------- ----------------- ---------------------------------------
Feed Rate 2500 pounds/batch (average) Ammonia Recovery Decant system and vapor recovery
-------------------- ------------------------------------- ----------------- ---------------------------------------
Feed Material Various, solid and/or liquid, Inlet Flange 8 inches
homogeneous or heterogeneous Diameter
-------------------- ------------------------------------- ----------------- ---------------------------------------
Feed Material Size 3 inches max in any dimension Outlet Flange 8 inches
Diameter
-------------------- ------------------------------------- ----------------- ---------------------------------------
Major Components Treatment cell, solvator, ammonia Operating 70 degrees F
system Temperature
-------------------- ------------------------------------- ----------------- ---------------------------------------
Unit Size Five (5) skids; 8' x 40' each Design -40 to 400 degrees F
Temperature
-------------------- ------------------------------------- ----------------- ---------------------------------------
Power Requirements 480 volt AC, 3 phase, 600 amp Operating 80-250 psig
Pressure
-------------------- ------------------------------------- ----------------- ---------------------------------------
Water Requirements 110 gallons/day Design Pressure 350 psig, ASME Section VIII, code
rated
-------------------- ------------------------------------- ----------------- ---------------------------------------
Read Outs Temperature, pressure, rpm, etc.
-------------------- ------------------------------------- ----------------- ---------------------------------------
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Solvator System Ammonia System
-------------------- -------------------------------------- -------------------- -------------------------------------
Solvator Tank Size 4'-0" diameter 6'-0" high Storage Tank Size 30" diameter x 20'-0" long
-------------------- -------------------------------------- -------------------- -------------------------------------
Capacity 450 gallons Capacity 750 gallons
-------------------- -------------------------------------- -------------------- -------------------------------------
Material Stainless steel, ASTM 240 Tp 304L Material Carbon steel
-------------------- -------------------------------------- -------------------- -------------------------------------
Mixer Vertical shaft, magnetic drive, Operating 50 degrees F
turbine mixer Temperature
-------------------- -------------------------------------- -------------------- -------------------------------------
Operating 50 degrees F Design Temperature -40 to 400 degrees F
Temperature -------------------- -------------------------------------
-------------------- -------------------------------------- Operating Pressure 125 psig
Design Temperature -40 to 400 degrees F -------------------- -------------------------------------
-------------------- -------------------------------------- Design Pressure 350 psig, ASME Section VIII, code
Operating Pressure 50 psig rated
-------------------- -------------------------------------- -------------------- -------------------------------------
Design Pressure 350 psig, ASME Section VIII, code Other Items Linear sight glass for level control
rated -------------------- -------------------------------------
-------------------- --------------------------------------
Other Items Magnetic level switches
-------------------- --------------------------------------
Sodium Supply Tank 3'-6" diameter x 5'-0" high
Size
-------------------- --------------------------------------
Capacity 400 gallons
-------------------- --------------------------------------
Material Stainless steel
-------------------- --------------------------------------
Operating 260 degrees F
Temperature
-------------------- --------------------------------------
Design Temperature -40 to 400 degrees F
-------------------- --------------------------------------
Operating Pressure 100 psig
-------------------- --------------------------------------
Design Pressure 350 psig, ASME Section VIII, code
rated
-------------------- --------------------------------------
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EXHIBIT B
PRICING SCHEDULE
----------------
For the destruction of organic material (i.e., PCBs, dioxins, etc.) in various
waste streams utilizing Commodore's SET process and D/2 and S-10 processing
equipment, the pricing per pound processed is as indicated below.
The basis for this pricing has been estimated on material characteristics and
contaminant concentrations as published as part of the Broad Spectrum
procurement RFP of January 1998. In addition, the waste to be treated must meet
the specifications as noted in the process description, specifically that total
reducible organic contaminants for material to be treated are equal to, or less
than 20,000 ppm, the total water content is less than 25%, and no size reduction
of material is required. Additional process runs (i.e., additional cost) will be
needed for greater material that exceed these limits, and costing will be
determined on a case by case basis.
WCS Price to Customer (per pound)
--------------------------------- ------------------------
$6.00 - $12.00 Greater than $12.00
-------------- --------------------------------- -----------------------
Commodore 31.4% charged or $3.77 +
price to WCS $2.00 (min.) - $3.77 per pound 50% of the price
------------ greater than $12.00
(per pound)
-------------- --------------------------------- --------------------------
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