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Clean Earth Dredging Technologies, Inc. v. Hudson County Improvement Authority

July 21, 2005

CLEAN EARTH DREDGING TECHNOLOGIES, INC., A PENNSYLVANIA CORPORATION, AND RESOURCES WAREHOUSING CONSOLIDATION SERVICES, INC., A NEW JERSEY CORPORATION, PLAINTIFFS-APPELLANTS,
v.
HUDSON COUNTY IMPROVEMENT AUTHORITY, A BODY CORPORATE AND POLITIC OF THE STATE OF NEW JERSEY; AND GREAT LAKES DREDGE AND DOCK COMPANY, A DELAWARE CORPORATION, DEFENDANTS-RESPONDENTS.



On appeal from Superior Court of New Jersey, Law Division, Hudson County, No. HUD-L-3643-04.

The opinion of the court was delivered by: Wefing, P.J.A.D.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

APPROVED FOR PUBLICATION

Argued June 2, 2005

Before Judges Wefing, Payne and C.S. Fisher.

Plaintiffs Clean Earth Dredging Technologies, Inc. and Resources Warehousing Consolidation Services, Inc. appeal from trial court orders denying their request for a preliminary injunction and granting summary judgment to defendants Hudson County Improvement Authority and Great Lakes Dredge and Dock Company. After reviewing the record in light of the contentions advanced on appeal, we affirm.

The dispute between the parties revolves around one portion of an approximately one-hundred-seventy-five-acre parcel of land in Kearny owned by defendant Improvement Authority, which is referred to generally as the Koppers Seaboard Site. Efforts have been underway to remediate this land since the closing of the Koppers Seaboard Coke plant, whose operations left the property significantly contaminated. In 1986, the New Jersey Department of Environmental Protection and Beazer East, the successor to Koppers, entered into an Administrative Consent Order for such remediation. For reasons that are not contained in the record before us, the terms of that Administrative Consent Order were not complied with, and the Improvement Authority purchased the site to continue the remediation process.

The property abuts the Hackensack River and includes a deep-water dock. The Improvement Authority began to explore the possibility of leasing a portion of the tract, including the docking facility, to a dredge processing company, with the idea that this would achieve two objectives: provide an income stream from the rental payments and provide a source of processed dredge material that could be used in the remediation efforts.

In December 2003, the Improvement Authority published its initial Request for Expressions of Interest in which it solicited proposals to lease an area of five to ten acres to be used for dredge materials management. In this original Request, the Improvement Authority included the following statement.

The [Improvement Authority] may choose to purchase up to 200,000 cubic yards of processed dredge materials from the selected Proposer for use at the Site. As an option, the Proposer shall provide its price per cubic yard for supplying, placing and compacting processed dredge materials at locations on the site, directed by [the Improvement Authority].

According to this Request, the Improvement Authority expected, as a financial consideration, "a payment, paid in monthly installments, for the area leased to the Proposer. In addition, the [Improvement Authority] would receive a royalty fee in dollars per cubic yard, paid in monthly installments, for the processed dredge materials received or processed by the Proposer at the Leased Area."

The Improvement Authority then conducted a meeting with interested parties, at which it learned that its Request had not been drafted to reflect the manner in which dredging companies conducted their operations. Specifically, their dredging operations left them with materials to be deposited elsewhere and the companies, rather than selling that dredged material, would pay others to accept it. The Improvement Authority then realized that rather than a transaction which would produce two income streams and one accompanying expenditure, the transaction could be structured to provide it with three sources of income: monthly rental payments for use of the particular portion of the site, monthly royalty payments based upon the quantity of dredged material processed at the site, and payment for its acceptance of processed dredge materials. The Improvement Authority revised its Request to reflect this economic framework.

Ultimately, the Improvement Authority received proposals from four companies, including plaintiff Clean Earth and defendant Great Lakes. One was rejected as non-responsive, and the Improvement Authority then set up meetings with representatives of the remaining ones, inviting each to submit its best offer. At the conclusion of these meetings, the Improvement Authority decided to enter into final negotiations with defendant Great Lakes. The Improvement Authority and Great Lakes executed a lease in June 2004.

Clean Earth then commenced this action, complaining that the terms of the lease between the Improvement Authority and Great Lakes differed materially from the terms set forth in the Improvement Authority's several Requests and was thus a violation of the Local Lands and Buildings ...


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