Preview
FILED: ERIE COUNTY CLERK 04/15/2024 10:36 AM INDEX NO. 805332/2024
NYSCEF DOC. NO. 2 RECEIVED NYSCEF: 04/15/2024
EXHIBIT A
FILED: ERIE COUNTY CLERK 04/15/2024 10:36 AM Ente d SRM &
INDEX NO. 805332/2024
NYSCEF DOC. NO. 2 RECEIVED NYSCEF: 04/15/2024
CRM #
Contract Type: Re- gn
Purchasing Rep: Purchasing Rep Initials:
Number of carboys per week: Seller Initials:/ Container Type Requested: Amt:
Buffalo Biodiesel Inc.
225 Sawyer Avenue
Tonawanda, New York 14150
Telephone: 1-800-721-1427 Fax: 1-800-986-0919 Website: www buffalobiodiesel.com
Exclusive Waste Vegetable Cooking Oil Purchase & Sale Agreement
This Purchase & Sale Agreement ("Agreement")
Biodiesel Inc., a New York Corporation, ("BBD")
is enteredDto
and ) PfcYj
as of H A) T
$3,
, 201f___
5
(the "Contract
("Seller").
Date") by and between Buffalo
Seller and BBD agree as follows:
/f
1. Transaction: Seller generates waste vegetable cooking oil ("WVCO"). BBD is in the business of purchasing WVCO for processing at its
Tonawanda, New York facility. Seller agrees to make available exclusively to BBD for collection, and BBD agrees to collect, all WVCO generated
on Seller's premises at each Collection Site identified on this Agreement and/or on a rider ("Rider") to this Agreement according to the terms and
conditions set forth in this Agreement and in any Rider signed by Seller and BBD. The terms of each such Rider are hereby incorporated into this
Agreement.
2. Term and Renewal: This Agreement will remain in effect for a period of five years commencing on the Contract Date. The Agreement will
automatically renew for a period of one year on the last day of such initial term and each anniversary of the Contract Date thereafter unless either
then-
party gives written notice to the other of their intention not to renew. Such notice must be provided not less than thirty (30) days prior to the
effective termination date. BBD reserves the right to terminate this Agreement for cause.
3. BBD Undertakings: During the term of this Agreement (including any renewal term) BBD will:
(a) Provide within 90 days of this Agreement being countersigned suitable containers ("Containers") for WVCO at the Collection Site(s) in a
sufficient number to accept all WVCO generated there, unless Seller requests and BBD agrees to the use of an altemative method of storing WVCO
for collection ("Alternative Containers"); and
(b) Collect all WVCO from its Containers or the Alternative Containers in accordance with all applicable laws and regulations. After collection,
BBD will assume responsibility and liability for the safe transport of the WVCO in accordance with all US Department of Transportation
requirements and/or applicable laws.
4. Seller Undertakings:
'
(a) By its execution of this Agreement, and in consideration of $ O per 7 /7 and other good and valuable consideration, Seller hereby
assigns to BBD ownership and all of its rights, title and imerest in and to all WVCO generated, produced, and/or collected at any and all of its
Collection Sites during the term of this Agreement (including any renewal term).
(b) Seller will schedule pickups by phone, email or fax for all WVCO at least 7 business days in advance of the container(s) being full.
(c) Seller agrees to make space available for the exclusive placement on its premises of oil collection equipment by BBD, will not allow another
collector's equipment to be placed or to remain on its premises. Seller will take any and all steps necessary to have any other collector's equipment
removed that may be present as of the contract date.
(d) Seller will not allow another collector to collect WVCO from its premises during the term of this Agreement (including renewal).
(e) Seller agrees transcribed electronic records of collection receipt(s) will be valid as original and binding. Any transcribed record will be deemed to
be written, signed and constitute a record established in the ordinary course of business and original. Transcribed records will be admissible as
evidence in any legal proceeding as created and maintained in electronic form. Neither party will contest the admissibility of the electronically
ti·anscribed documents.
5. BBD Warranties:
(a) BBD represents and warrants that it has satisfied all necessary legal requirements and qualifications, including all necessary permits and licenses,
to perform its services under this Agreement, including safe and lawful transport.
(b) BBD will make all payments for WVCO within 30 days of a demand by Seller via phone, email or fax, limited to a maximum of 4 payments in a
12-month period. Payments will be made based on the transcription of collection receipts at the time of payment, subject to 5(c). Payments will be
made via company check and will include a detailed report outlining each collection, including the volume collected and the oil content of collected
material. BBD reserves the right to make additional payments at its discretion.
(c) BBD will measure all containers by volume and by oil content to the closest 10% increment. The collector will use his or her best judgment for
all estimates and will complete a collection receipt for each collection. Payments will be prorated based on the results. BBD's measurements are
binding in the absence of demonstrated fraud.
(d) BBD will maintain original collection receipts for 180 days.
6. Seller Warranties: Seller represents and warrants to BBD:
(a) All WVCO tendered by Seller to BBD will conform to the U.S. Department of Transportation description of such waste and will not be mixed,
combined or otherwise blended with any material that would cause the W VCO to be classified as a hazardous material under applicable law,
including without limitation 40 CFR Part 261.
(b) All WVCO has been or will be produced by the same process that produced the WVCO that was inspected by BBD prior to execution of this
Agreement.
v.12-2-16
FILED: ERIE COUNTY CLERK 04/15/2024 10:36 AM INDEX NO. 805332/2024
NYSCEF DOC. NO. 2 RECEIVED NYSCEF: 04/15/2024
(c) All WVCO contains and will contain no products, additives, contaminants, or foreign or additional materials of any kind (including animal or
vegetable material) that would cause the collection, processing, and/or recycling of such WVCO by BBD to violate any applicable law, rule,
regulation, order, or other requirement having the force of law (collectively, "Law") as in effect from time to time.
(d) Seller represents and warrants that its premises are safe, secure and free from latent and patent defects. Seller will ensure that BBD employees
will have safe means of ingress and egress during the performance of their duties.
(e) Seller represents and warrants that it will keep BBD equipment, safe, accessible, clean, sanitary and clear of debris inside, outside and in the
immediate area. Seller agrees not to disable, tamper with, destroy, modify or otherwise make BBD equipment inoperable, unsafe or unsecure.
(f) Signatory has the authority to bind Seller.
7. Choice of Law & Forum Selection: This Agreement will be enforced, governed by and construed in accordance with the laws of the State of
New York, excluding its principles of conflicts of law. Both parties agree that each party will be deemed to be transacting business in the City of
Buffalo, County of Erie, State of New York. Both parties irrevocably consent to the exclusive jurisdiction of the Supreme Court of the State of
New York, County of Erie as the place of trial to resolve all legal disputes, claims or causes of action arising under this Agreement. Both
parties agree that each will waive its right to a trial by jury in any legal action, proceeding or claim it will commence or interpose.
8. Obligations & Remedies: If Seller breaches or terminates the Agreement prior to the expiration date of the contract for any reason, Seller will pay
BBD an amount equivalent to the value of WVCO that BBD would have collected from time of breach until the expiration of the contract, less the
amount BBD would be obligated to pay Seller for the oil, in addition to the value of any BBD Containers that are missing or damaged. The value of
WVCO is defined as the price for which BBD sold WVCO in the month the breach was detected times the volume of oil Seller was contracted to
week"
provide as determined by "Number of carboys per at the head of this Agreement. If Seller did not complete the "Number of carboys per
week"
portion of the Agreement, it will be assumed the amount is 4 carboys per week unless BBD has documentation to indicate that the volume is
more than that. If that is the case, the higher volume will be used.
9. Miscellaneous:
(a) Any WVCO that is not readily pumpable (liquefied) upon placement into the Container or Alternative Container, or contains more than 1%
solids or water by volume, may be subject to a prorated reduction in payment at the discretion of BBD.
(b) Without limiting the scope or application of any other provision of this Agreement or any Rider, the parties agree to negotiate in good faith to
adjust the terms of this Agreement and any Rider to the extent necessary if any change in Law makes compliance with such terms illegal or
impractical.
(c) BBD agrees to indemnify, hold harmless and defend Seller from any and all liabilities of whatever nature that Seller may incur, become
responsible for, or suffer by any reason of BBD's breach of any representation, warranty, term or provision of this Agreement or any R.ider or any
gross negligence, willful misconduct or material violation of Law by BBD, its employees, or its agents in the performance of this Agreement.
(d) Seller agrees to indemnify, hold harmless and defend BBD from any and all liabilities of whatever nature that BBD may incur, become
responsible for, or suffer by reason of:
(i) Seller's breach of any representation, warranty, term or provision of this Agreement, or any Rider; or
(ii) the intentional, negligence, willful misconduct or violation of Law of the Seller, its employees or agents in the performance of this
Agreement; or
(iii) any injury or liability resulting from power washing and/or its effluent, including but not limited to damage to property, an d slip and
fall injuries; or
(iv) any violation(s) of Environmental or Zoning laws, Rules, and Regulations, including but not limited to Health Department, Cartage,
Time and /or Noise violation(s); or
(v) any and all reasonable attorneys fees, costs or disbursements resulting from the enforcement of this Agreement.
(e) This Agreement will be binding on the heirs, executors, administrators, successors, and assigns of the parties, provided that Seller may not assign
its rights and duties hereunder without the written consent of BBD.
(f) Seller must provide BBD with a written statement via trackable mail regarding any breach of service within seventy-two (72) hours of discovery
of an issue. Failure to notify BBD of a breach within this time period will be a waiver of any right or claim regarding that breach. In the case of
emergencies, in addition to sending written notice Seller must call BBD as soon as possible to report the emergency. BBD has the right to remedy
any service/equipment/payment related problem within a period of thirty (30) days upon receipt of proper notification from Seller.
(g) This Agreement may be executed in two or more counterparts, each of which will constitute an original and which together will constitute one
and the same instrument.
(h) Any provision of this Agreement which is or becomes prohibited or unenforceable in any jurisdiction will not invalidate or impair the remaining
provisions of this Agreement, which will be deemed severable from the prohibited or unenforceable provision(s), and any prohibition or
unenforceability in any jurisdiction will not invalidate or render unenforceable that provision in any other jurisdiction.
10. Merger: This contract is the entirety of the agreement and no agreements or warranties expressed or implied were made outside of it.
IN WITNESS WHEREOF, the parties have entered into this Agreement as of the Contract Date written above.
UF AL IESELINC
Seller's / Authorized Representative's Name (PRINT)
Seller's / Authorizedlep'resentative's Signature Title BBD - Authorized Representative's Signature
Seller Contact and Service Informat n:
Address: City: 7
State: -f Zip: Telephone: Fax:
Contact: /C Is Mail delivery available at the Service Address? o
Mailing Address:
Preview
FILED: ERIE COUNTY CLERK 04/15/2024 10:36 AM INDEX NO. 805332/2024 NYSCEF DOC. NO. 2 RECEIVED NYSCEF: 04/15/2024 EXHIBIT A FILED: ERIE COUNTY CLERK 04/15/2024 10:36 AM Ente d SRM & INDEX NO. 805332/2024 NYSCEF DOC. NO. 2 RECEIVED NYSCEF: 04/15/2024 CRM # Contract Type: Re- gn Purchasing Rep: Purchasing Rep Initials: Number of carboys per week: Seller Initials:/ Container Type Requested: Amt: Buffalo Biodiesel Inc. 225 Sawyer Avenue Tonawanda, New York 14150 Telephone: 1-800-721-1427 Fax: 1-800-986-0919 Website: www buffalobiodiesel.com Exclusive Waste Vegetable Cooking Oil Purchase & Sale Agreement This Purchase & Sale Agreement ("Agreement") Biodiesel Inc., a New York Corporation, ("BBD") is enteredDto and ) PfcYj as of H A) T $3, , 201f___ 5 (the "Contract ("Seller"). Date") by and between Buffalo Seller and BBD agree as follows: /f 1. Transaction: Seller generates waste vegetable cooking oil ("WVCO"). BBD is in the business of purchasing WVCO for processing at its Tonawanda, New York facility. Seller agrees to make available exclusively to BBD for collection, and BBD agrees to collect, all WVCO generated on Seller's premises at each Collection Site identified on this Agreement and/or on a rider ("Rider") to this Agreement according to the terms and conditions set forth in this Agreement and in any Rider signed by Seller and BBD. The terms of each such Rider are hereby incorporated into this Agreement. 2. Term and Renewal: This Agreement will remain in effect for a period of five years commencing on the Contract Date. The Agreement will automatically renew for a period of one year on the last day of such initial term and each anniversary of the Contract Date thereafter unless either then- party gives written notice to the other of their intention not to renew. Such notice must be provided not less than thirty (30) days prior to the effective termination date. BBD reserves the right to terminate this Agreement for cause. 3. BBD Undertakings: During the term of this Agreement (including any renewal term) BBD will: (a) Provide within 90 days of this Agreement being countersigned suitable containers ("Containers") for WVCO at the Collection Site(s) in a sufficient number to accept all WVCO generated there, unless Seller requests and BBD agrees to the use of an altemative method of storing WVCO for collection ("Alternative Containers"); and (b) Collect all WVCO from its Containers or the Alternative Containers in accordance with all applicable laws and regulations. After collection, BBD will assume responsibility and liability for the safe transport of the WVCO in accordance with all US Department of Transportation requirements and/or applicable laws. 4. Seller Undertakings: ' (a) By its execution of this Agreement, and in consideration of $ O per 7 /7 and other good and valuable consideration, Seller hereby assigns to BBD ownership and all of its rights, title and imerest in and to all WVCO generated, produced, and/or collected at any and all of its Collection Sites during the term of this Agreement (including any renewal term). (b) Seller will schedule pickups by phone, email or fax for all WVCO at least 7 business days in advance of the container(s) being full. (c) Seller agrees to make space available for the exclusive placement on its premises of oil collection equipment by BBD, will not allow another collector's equipment to be placed or to remain on its premises. Seller will take any and all steps necessary to have any other collector's equipment removed that may be present as of the contract date. (d) Seller will not allow another collector to collect WVCO from its premises during the term of this Agreement (including renewal). (e) Seller agrees transcribed electronic records of collection receipt(s) will be valid as original and binding. Any transcribed record will be deemed to be written, signed and constitute a record established in the ordinary course of business and original. Transcribed records will be admissible as evidence in any legal proceeding as created and maintained in electronic form. Neither party will contest the admissibility of the electronically ti·anscribed documents. 5. BBD Warranties: (a) BBD represents and warrants that it has satisfied all necessary legal requirements and qualifications, including all necessary permits and licenses, to perform its services under this Agreement, including safe and lawful transport. (b) BBD will make all payments for WVCO within 30 days of a demand by Seller via phone, email or fax, limited to a maximum of 4 payments in a 12-month period. Payments will be made based on the transcription of collection receipts at the time of payment, subject to 5(c). Payments will be made via company check and will include a detailed report outlining each collection, including the volume collected and the oil content of collected material. BBD reserves the right to make additional payments at its discretion. (c) BBD will measure all containers by volume and by oil content to the closest 10% increment. The collector will use his or her best judgment for all estimates and will complete a collection receipt for each collection. Payments will be prorated based on the results. BBD's measurements are binding in the absence of demonstrated fraud. (d) BBD will maintain original collection receipts for 180 days. 6. Seller Warranties: Seller represents and warrants to BBD: (a) All WVCO tendered by Seller to BBD will conform to the U.S. Department of Transportation description of such waste and will not be mixed, combined or otherwise blended with any material that would cause the W VCO to be classified as a hazardous material under applicable law, including without limitation 40 CFR Part 261. (b) All WVCO has been or will be produced by the same process that produced the WVCO that was inspected by BBD prior to execution of this Agreement. v.12-2-16 FILED: ERIE COUNTY CLERK 04/15/2024 10:36 AM INDEX NO. 805332/2024 NYSCEF DOC. NO. 2 RECEIVED NYSCEF: 04/15/2024 (c) All WVCO contains and will contain no products, additives, contaminants, or foreign or additional materials of any kind (including animal or vegetable material) that would cause the collection, processing, and/or recycling of such WVCO by BBD to violate any applicable law, rule, regulation, order, or other requirement having the force of law (collectively, "Law") as in effect from time to time. (d) Seller represents and warrants that its premises are safe, secure and free from latent and patent defects. Seller will ensure that BBD employees will have safe means of ingress and egress during the performance of their duties. (e) Seller represents and warrants that it will keep BBD equipment, safe, accessible, clean, sanitary and clear of debris inside, outside and in the immediate area. Seller agrees not to disable, tamper with, destroy, modify or otherwise make BBD equipment inoperable, unsafe or unsecure. (f) Signatory has the authority to bind Seller. 7. Choice of Law & Forum Selection: This Agreement will be enforced, governed by and construed in accordance with the laws of the State of New York, excluding its principles of conflicts of law. Both parties agree that each party will be deemed to be transacting business in the City of Buffalo, County of Erie, State of New York. Both parties irrevocably consent to the exclusive jurisdiction of the Supreme Court of the State of New York, County of Erie as the place of trial to resolve all legal disputes, claims or causes of action arising under this Agreement. Both parties agree that each will waive its right to a trial by jury in any legal action, proceeding or claim it will commence or interpose. 8. Obligations & Remedies: If Seller breaches or terminates the Agreement prior to the expiration date of the contract for any reason, Seller will pay BBD an amount equivalent to the value of WVCO that BBD would have collected from time of breach until the expiration of the contract, less the amount BBD would be obligated to pay Seller for the oil, in addition to the value of any BBD Containers that are missing or damaged. The value of WVCO is defined as the price for which BBD sold WVCO in the month the breach was detected times the volume of oil Seller was contracted to week" provide as determined by "Number of carboys per at the head of this Agreement. If Seller did not complete the "Number of carboys per week" portion of the Agreement, it will be assumed the amount is 4 carboys per week unless BBD has documentation to indicate that the volume is more than that. If that is the case, the higher volume will be used. 9. Miscellaneous: (a) Any WVCO that is not readily pumpable (liquefied) upon placement into the Container or Alternative Container, or contains more than 1% solids or water by volume, may be subject to a prorated reduction in payment at the discretion of BBD. (b) Without limiting the scope or application of any other provision of this Agreement or any Rider, the parties agree to negotiate in good faith to adjust the terms of this Agreement and any Rider to the extent necessary if any change in Law makes compliance with such terms illegal or impractical. (c) BBD agrees to indemnify, hold harmless and defend Seller from any and all liabilities of whatever nature that Seller may incur, become responsible for, or suffer by any reason of BBD's breach of any representation, warranty, term or provision of this Agreement or any R.ider or any gross negligence, willful misconduct or material violation of Law by BBD, its employees, or its agents in the performance of this Agreement. (d) Seller agrees to indemnify, hold harmless and defend BBD from any and all liabilities of whatever nature that BBD may incur, become responsible for, or suffer by reason of: (i) Seller's breach of any representation, warranty, term or provision of this Agreement, or any Rider; or (ii) the intentional, negligence, willful misconduct or violation of Law of the Seller, its employees or agents in the performance of this Agreement; or (iii) any injury or liability resulting from power washing and/or its effluent, including but not limited to damage to property, an d slip and fall injuries; or (iv) any violation(s) of Environmental or Zoning laws, Rules, and Regulations, including but not limited to Health Department, Cartage, Time and /or Noise violation(s); or (v) any and all reasonable attorneys fees, costs or disbursements resulting from the enforcement of this Agreement. (e) This Agreement will be binding on the heirs, executors, administrators, successors, and assigns of the parties, provided that Seller may not assign its rights and duties hereunder without the written consent of BBD. (f) Seller must provide BBD with a written statement via trackable mail regarding any breach of service within seventy-two (72) hours of discovery of an issue. Failure to notify BBD of a breach within this time period will be a waiver of any right or claim regarding that breach. In the case of emergencies, in addition to sending written notice Seller must call BBD as soon as possible to report the emergency. BBD has the right to remedy any service/equipment/payment related problem within a period of thirty (30) days upon receipt of proper notification from Seller. (g) This Agreement may be executed in two or more counterparts, each of which will constitute an original and which together will constitute one and the same instrument. (h) Any provision of this Agreement which is or becomes prohibited or unenforceable in any jurisdiction will not invalidate or impair the remaining provisions of this Agreement, which will be deemed severable from the prohibited or unenforceable provision(s), and any prohibition or unenforceability in any jurisdiction will not invalidate or render unenforceable that provision in any other jurisdiction. 10. Merger: This contract is the entirety of the agreement and no agreements or warranties expressed or implied were made outside of it. IN WITNESS WHEREOF, the parties have entered into this Agreement as of the Contract Date written above. UF AL IESELINC Seller's / Authorized Representative's Name (PRINT) Seller's / Authorizedlep'resentative's Signature Title BBD - Authorized Representative's Signature Seller Contact and Service Informat n: Address: City: 7 State: -f Zip: Telephone: Fax: Contact: /C Is Mail delivery available at the Service Address? o Mailing Address: