HomeMy WebLinkAbout1994-08-16; City Council; 12836; APPROVE SOLID WASTE DISPOSAL CONTRACT BETWEEN NORTH COUNTY SOLID WASTE JPA AND COAST WASTE MANAGEMENT, INC.n -
AB # m TITLE:
DEPT. -, AND COAST WASTE MANAGEMENT, INC.
APPROVE SOLID WASTE DISPOSAL CONTRACT
* MTG. 8~lfil!, BETWEEN NORTH COUNTY SOLID WASTE JPA
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COY OF CARLSBAD - AGWA BiL
RECOMMENDED ACTION:
Approve in concept the draft agreement for solid waste disposal between the Nort
Waste Management Agency and Coast Waste Management, Inc. and direct re!
appropriate.
ITEM EXPLANATION:
The City of Carlsbad, along with the Cities of Escondido and Oceanside, is a founi
the North County Solid Waste Management Agency. This joint powers authority
address the solid waste disposal needs of the three cities, and to explore alternative
solid waste system. Last October, the Agency issued a Request for Proposs
alternatives and received eight responses. Five of these proposals were considered
the field was subsequently narrowed. The proposal from Coast Waste Managemc
Development Corporation (CWM/ECDC) was ranked the highest, with a tip fee of 1
The CWM/ECDC response proposed to ship waste by train to a landfill in East Cart:
will provide processing services and ECDC owns and operates the landfill. Agenc
working closely with representatives from CWM and ECDC to negotiate a "stand-by
agreement will be between the Agency and CWM, with ECDC serving as a CWM SL
other disposal options become available, the Agency may direct the disposal to mc
alternatives. This agreement can be activated at anytime during the next year at tb
of the Agency. If not activated, this agreement terminates July 1, 1995. If activate
is five years. There are several key issues to consider, detailed in Exhibit 2, attac
Currently, solid waste collected in Carlsbad is disposed of at the San Marcos La
formed San Diego Solid Waste Authority is considering a proposal to charge a difl
non-member users as high as $253/ton. Lower fees could be achieved by enterii
contracts with the Authority. Should the Authority ultimately adopt this tip ft
CWM/ECDC tip fee would compare very favorably. The current tip fee at County Is
FISCAL IMPACT:
The approval of this agreement itself has no direct fiscal impact. However, should
to activate the agreement, Carlsbad's solid waste services rates would be adjusted
rate adjustments would be presented to Council for consideration prior to adopti
EXHl BITS:
1. Solid Waste Disposal Contract
2. Summary of Key Issues
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X TABLE OF CONTENTS car 01~s~3r;pI
(AGENCY AND COAST)
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Section 1. DEFINITIONS ............................................
Section 2, DESCRIPTION OF SERVICES PROVIDED .......................
2.1 Transfer Station Permits .....................................
2.2 Activation of Service ........................................
2.3 Parties' Obliqations ........................................ 2.3.1 Aqencv Responsibilities ................................
2.3.2 Coast Responsibilities .................................
Section 3. PAYMENT, RATES AND VOLUME REQUIREMENTS. ...............
Section 4. TIMING OF PAYMENT. .....................................
Section 5. RESPONSIBILITIES FOR COST INCREASE AND CHANGES IN LAW ...
Section6. TERM. ..................................................
Section 7. EARLY TERMINATION FOR ECONOMIC EFFICIENCY ..............
Section 8. AGENCY REPRESENTATIONS AND WARRANTIES ...............
8.1 Orqanization and Qualification ................................
8.2 Authoritv ............................................... 8.3 Government Authorizations and Consents .......................
8.4 Compliance with Laws .....................................
8.5 Abilitv of Aqencv to Direct Waste Flow .......................... 8.6 Accuracv of information ....................................
8.7 Independent Examinations ..................................
Section 9. COAST REPRESENTATIONS AND WARRANTIES ................
9.1 Orqanization and Qualification ................................
9.2 Authority ............................................... 9.3 Government Authorizations and Consents .......................
9.4 Compliance With Laws .....................................
9.5 Accuracv of Information ....................................
9.6 Independent Examination ...................................
Section IO. EXCLUSIVITY ..........................................
Section 11. UNACCEPTABLE WASTE .................................
Section 12. TITLE'TO ACCEPTABLE WASTE AND UNACCEPTABLE WASTE ...
Section 14. FORCE MAJEURE.. .....................................
Section 15. SERVICE IN THE EVENT OF NON-FORCE MAJEURE CONDITIONS . .
Section 16. INDEMNITY. ...........................................
Section 17. INSURANCE ...........................................
Section 28. FAITHFUL PERFORMANCE BOND ..........................
Exhibit I
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Section 19. RELATIONSHIP OF THE PARTIES ................... -:--.-.-,--
Section 20. EQUAL OPPORTUNITYINON-DISCRIMINATION .................... ,
Section 21. ASSIGNMENT ........................... ., ................. ,
Section 22. RECORDS. ................................................
Section 23. APPLICABLE LAW .........................................
Section 24. DISPUTE RESOLUTION ......................................
Section 25. EVENTS OF DEFAULT ......................................
Section 26. BINDING ON SUCCESSORS ..................................
Section 27. TRANSITION TO NEXT CONTRACTOR ..........................
Section 28. PARTIES OF INTEREST .....................................
Section 29. WAIVER .................................................
Section 30. CONTRACTORS INVESTIGATION ..............................
Section 31. CONDEMNATION ......... ~ ................................
Section 32. REPRESENTATIVE OF THE PARTIES ...........................
Section 33. AGENCY FREE TO NEGOTIATE WITH THIRD PARTIES ..............
Section 34, SEVERABILIM ............................................
Section 35. CONTRACT RIGHTS ........................................
Section 36. APPROVALS .............................................
Section 37. ENTIRE AGREEMENT ......................................
Section 38. CAPTIONS ..............................................
Section 39. NOTICES ...............................................
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SOLID WASTE DISPOSAL CONTRACT __
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BETWEEN JOINT POWERS AUTHORITY
AND COAST WASTE MANAGEMENT, INC.
THIS AGREEMENT is made and entered into this day of
1994, by and between NORTH COUNTY SOLID WASTE MANAGEMENT AU
a joint powers authority ("Agency") and COAST WASTE MANAGEMENT, INC
a California corporation (sometimes collectively referred to as the "Parties").
RECITALS
A. Agency's members have paid for and have used in the past, and CI
waste disposal facilities owned and operated by the County of San Diego. d -
B. The County has entered into long-term agreements which ma
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uncompetitive landfill fees.
C. The Agency is desirous of having an alternative waste disposal c
current County system.
D. The Agency, and Coast agree to enter into this Agreement to mem
agreement concerning the transportation and disposal of the Agency's Acceptal
defined herein.
E. Coast intends to subcontract the rail transportation and disposal c
Waste to ECDC Environmental, L.C., a Utah limited liability company ("ECDC'
the Solid Waste Disposal Contract between ECDC and Coast identical to Exhibit
hereto and incorporated herein by reference. ECDC owns or leases property in
Utah that has received necessary permits from the Utah Department of Envirm
for the construction and operation of a commercial nonhazardous soIid waste di:
(the "Landfill").
F. Coast leases property in Carlsbad, California from the County a
received permits from various state and local entities for the operation of a corn
transfer station located in Carlsbad, California ( "Palomar Transfer Station").
G. Coast owns property in San Marcos, California and is in the process
to obtain all necessary permits from various state and local entities for the c
commercial waste transfer station ("San Marcos Transfer Station").
H. ECDC has or is prepared to operate a facility and to load and offl
from trucks to railcars ("Loading Facility").
I, Coast has agreed to transport or arrange for the transportation o
Acceptable Waste from the Transfer Station, as defined herein, in Carlsbad. Calif
for transport to the Loading Facility for loading on to railcars for transportation
the Landfill.
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NOW, THEREFORE, in consideration of the promises, covenants and ai
herein contained, the Parties agree as follows:
Section 1. DEFINITIONS.
The terms used in this Agreement shall have the following meanings:
1.1 "Acceptable Waste" means all residential and nonresidential solid waste ;
by Utah Code Ann. §$19-6-102(14) and 19-6-502(7) and appropriate California codes
within the boundaries of the Agency's member cities that is not Unacceptable Waste
1.2 "Applicable Law" means those federal, state and local laws, o
regulations, permits and rules in effect, valid and applicable to the performanc
Agreement, including those relating to the disposal of and description of Acceptab
(BRUCE, ASK WORDEN WHAT HE MEANS IN HIS N0.3 OF HIS LETTER C
3.)
1.3 "Change in Law" means any new or revised law, statute, rule, reg
ordinance enacted or amended by a federal, state, or local governmental entity (
affecting or directed to the disposal or transportation of solid waste, but not affecting c
Examples of "Changes in Law" include, but are not limited to, Changes in the hc
applicable taxes payable by the Landfill or other charges in Applicable Laws that chan
cost of performance of this Agreement, or the cost of performance of their subcl
employees, or agents. Any change in law resulting in increased costs may be passe
Agency. However, the Agency may, in its sole discretion, terminate this Agreemc
change in law results in higher rates.
to businesses in general, whlch becomes effective after the effective date of this A
1.4 "Commencement Date" means the date the Agency first tenders Accept
to Coast for transportation to and disposal at the Landfill.
1.5 "ConstructiodDemolition Waste" means Acceptable Waste consisting (
materials, packaging, and rubble resulting from construction, remodeling, repair, and
operations on pavements, houses, buildings, and other structures.
1,6 "Container" means a container that is designed to be loaded with 1
Waste on a railcar or trailer.
1.7 "County System" means landfills within San Diego County owned and/
by the County of San Diego's Public Works Department or landfill the County has
with to receive waste or any future joint powers association formed.
1.8 "Force Majeure" means the parties shall be excused from perf01
respective obligations hereunder in the event they are prevented from so performin;
of floods, earthquakes, other "acts of God", war, civil insurrection, riots, railroad
Coast - JPA Agreement 2 Draft of 7/25/94
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act by a governmental or regulatory body, and other similar catastrophic events
beyond the control of and not the fault of the party claiming excuse from pe
hereunder. Notwithstanding the foregoing, labor unrest, including but not limited
work stoppage or slowdown, sickout, picketing, or other concerted job action cor
Coast's employees or directed at Coast is not an excuse from performance and Coa
obligated to continue to provide service notwithstanding the occurrence of any or all SL
provided, that in the case of labor unrest or job action directed at a third party over w
has no control, the inability of Coast to provide services due to the unwillingness 01
a third party to provide reasonable assurance of the safety of Coast's employees while
services or to make reasonable accommodations with respect to operating circun
minimize any confrontation with pickets or the number of persons necessary to I
Agreement shall, to that limited extent, excuse performance and provided furth~
foregoing excuse shall be conditioned on Coast's cooperation in providing services ,
times and in different locations.
The party claiming excuse from performance shall, within two (2) days after
has notice of such case, give the other party notice of the facts constituting suck
asserting its claim to excuse under this Section. Notwithstanding, Coast in the
catastrophic event shall comply with Agency members' Emergency Preparedness P1
event that either party exercises its rights under this Section, the parties hereby waiv
against each other for any damages sustained thereby.
The partial or complete interruption or discontinuance of performance by
that person under this Agreement. Notwithstanding the foregoing, if a party is el
performing its obligations hereunder for any of the causes listed in this Section for
thirty (30) days or more, other than as the results of a third party labor dispute (
cannot be provided for reasons described earlier in this Section, the party shall never
the right, in its sole discretion, to terminate this Agreement by giving ten (10) d
(BRUCE CALL DWIGHT WORDEN AND TELL HIM THAT YOU WOULD
TO TIGHTEN UP THE LANGUAGE ON THIS ONE.)
caused by one or more of the events described in this Section shall not constitute
1.9 "Loading Facility" means the facility used to load railcars witl
delivered by the transfer trucks.
1.10 "Local Collector" means the waste hauler who collects the waste
other locations and hauls it to the transfer station or facility.
1,1 I "Notice to Commence Service" means that time when the Agency r
in writing that the Agency desires to commence service. The notice shall gk
hundred and twenty (120) days to begin service if all conditions precedent are n
give an estimate of the first years projected tonnage.
1.12 "Permits" means the solid waste disposal and ground water permit
the date of execution of this Agreement covering the Landfill, and any and all ot1
Coast - JPA Agreement 3 Draft of 7/25/94
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permits, authorizations, authorities, or licenses issued or granted by a government
affecting the Landfill, Transfer Facility, or the Loading Facility and any ame
modifications thereto at any time during the Contract Term.
1.13 "Required Waste" means at least 50% of Acceptable Waste gener
Agency. Nothing in this Agreement shall impede the Agency's goal of maximiziI
and meeting the goals of AB 939.
1.14 "Transfer Station" and/or "Facility" means a place where authorizec
be transferred from a waste collection vehicle to a waste hauling vehicle, Such a tra
is located in Carlsbad, California and shall be known as the Palomar Transfer Stat'
San Marcos it shall be known as the San Marcos Transfer Station.
1.15 "Transfer Trucks" or "Haulers" means trucks used to move was
transfer station to the Landfill and/or railhead.
1.16 "Unacceptable Waste" means all solid waste not authorized for di!
Landfill by applicable federal, state, or local statute, regulation, or ordinance
Landfill's Permits defined herein.
Unacceptable Waste includes, but is not limited to:
1.16.1 "hazardous waste" as defined in 40 C.F.R. Part 261,
may be amended and expanded from time to time,
Code Am.$ 19-6-102(7) and the regulations
thereunder and the appropriate California codes, as
amended and expanded from time to time.
any material that is now or hereafter defined by applii
state or local law, regulation, or ordinance as radio
hazardous or extremely hazardous waste, excludlI
hazardous waste and small quantity generator hazardc
exist after approved waste screening at the point of
vehicle tires in excess of the amount of such tires pr
disposed of by applicable federal, state, or local la!
or ordinance;
1.16.2
1.16.3
1.16.4 lead acid batteries;
1.16.5 soils contaminated with hazardous, radioactive, or tc
hazardous or toxic substances as such terms ar
applicable federal or state law or regulation;
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1.16.6 asbestos, including the asbestiform varieties of sel
(chrystolie), riebeckite (crocidolite), cummingtonite-g
anthophylite and actinolite-termolite;
any material which contains asbestos ("ACM"), includin;
waste from control devices, contaminated clothing, asbe:
material, materials used to enclose the work area (
asbestos project, or bags or containers that previously
asbestos; and
any material whatsoever that the Permits or any federal
local law, regulation, order, or ordinance may prohibit tl
of at the Landfill now or in the future.
1.16.7
1.16.8
Section 2. DESCRIPTION OF SERVICES PROVIDED.
2.1 Transfer Station Permits
Coast presently occupies the Coast Waste Management, Inc. Transfer sc
Palomar Transfer Station). The facility is the site used as Coast's initial and prim;
transferring of waste materials for the NCSWMA. Materials are collected and scree
local collectors then delivered to the Coast site where materials are again screened
unacceptable waste prior to loading into containers. Containers will be provided by 1
Agency (if purchased) or designated agents containers if a third parties container
(leased containers).
The primary site is leased month-to-month from the County of San Diego. .
is terminated, Coast, with the assistance of the Agency, will attempt to continue th
of the Palomar Transfer Station, or in the alternative, will attempt to open the alte
Marcos site.
If the San Marcos site is permitted, it can replace the Palomar site as the pi
If the San Marcos site is used, the Agency and Coast shall cooperate and identify
establish the price for the services at the San Marcos site.
See Exhibit "B" attached hereto and incorporated herein by reference for tir
for the Liberty San Marcos Transfer Station.
2.2 Activation of Service
2.2.1 Notice To Commence Service. The Agency may, in its sole di
anytime prior to July 1, 1995, give notice to Coast to commence the services prov
That notice shall give Coast the Agency's best estimate of the annual tonnage to be
Coast who will order or have ECDC order equipment based upon that estimate.
and Coast will work together to formulate first year tonnage projections. A mate
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variation (of more than 20%) of the estimate compared with the actual tonnage figures 7
in additional charges to the Agency.
The service shall commence one hundred and twenty (120) days after I
notice by Coast unless Coast has failed to obtain all required regulatory approvals in wl
any party to this Agreement can elect to terminate this Agreement.
Once the Agency has provided to Coast its Notice to Commence Servi
shall advise ECDC and shall require, in its contract with ECDC, that ECDC resen
Agency 20 years of capacity at the Landfill. Furthermore, Coast shall require th,
reserve capacity equal to the last year’s annual tonnage delivered (or, in the first year,
to be delivered to the ECDC site) multiplied by 20 minus the contract year. The con1
require that the capacity will be extended as long as the contract is in force.
2.2.2 Commencement of Service. Upon commencement of service, tl
shall direct, to the extent legally permissible, that all Acceptable Waste from the bou
the Agency’s member cities to be delivered to the Palomar Transfer Station or
accepted transfer station agreed to by the Parties.
2.3 Parties’ Obligations.
Subject to the terns and conditions of this Agreement, the Agency and C
have the following additional responsibilities:
2.3.1 Agency Responsibilities.
2.3.1.1 The Agency shall be responsible for budgetin;
appropriation of the funds required for its participation in this Agreement.
2.3.1.2 Subject to the provisions of Section 2.2.2 above, tl
shall tender all Required Waste for transfer at the Transfer Facility during the ten
Agreement. The Agency may also tender other Acceptable Waste for transfer at its I
2.3.1.3 The Agency shall not tender Unacceptable Waste
Agreement for transfer. If Unacceptable Waste is tendered under this Agreement, tl
shall pay all of Coast’s costs and expenses of handling and disposing of such Un
Waste as provided in this Agreement. As long as each of the Agency cities‘ Local
have implemented satisfactory (to Coast and the California Integrated Waste Managem
household waste screening programs, Unacceptable Waste will not include household
and small quantity generator waste.
Coast - JPA Agreement 6 Draft of 7/25/91
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2.3.1.4 The Agency may comply with its obligation
Agreement by use of agents, subcontractors, or other designees at the Agency’s d
2.3.2 Coast Responsibilities.
2.3.2.1 Coast shall be responsible for loading AcceI
from the Transfer Facility/Loading ramp into the containers/railcars. Coast or its d
supply, operate, maintain, repair and replace the trucks and truck chassis necessarj
all of the Agency’s Acceptable Waste from the Transfer Station to the Loading Fl
transport empty Containers from the Loading Facility to the Transfer Station.
designee will also provide the truck crews necessary for operation of the trucks.
Coast shall comply fully with all applicable 2.3.2.2
and local laws, regulations and ordinances dealing with the transfer of nonhazardou:
Coast shall remedy violation of such law promptly and at its own expense.
2.3.2.3 Coast shall bear responsibility for all costs i
associated with the clean up of spillage of Acceptable Waste at the Transfer Fac
ramp or in transit to the railhead facility.
2.3.2.4 Coast shall provide for the transfer of Acce]
delivered from the Agency. Specifically, Coast shall operate the Transfer Facility/I
in accordance with the Permits and the Applicable Laws. Coast shall supply all er
labor necessary for the operation of the Transfer Facility/Loading ramp.
2.3.2.5 Coast shall operate, if requested by the Agen
household hazardous waste collection program for each of the Agency’s cities (i
that currently comprise the Agency, or a number of events as mutually agreed u
and the Agency). These events will provide residents the opportunity to drive-up tc
and dispose of household hazardous wastes.
2.3.2.6 Coast shall (through its subcontract with E(
ECDC to be responsible for the following:
2.3.2.6.1 Coast (through its subcontract with
require ECDC to furnish all railcars and containers.
2.3.2.6.2 Coast (through its subcontract with
require ECDC to operate and maintain the Loading Facility.
2.3.2.6.3 Coast (through its subcontract with
require ECDC to comply fully with all applicable federal, state and local laws, rt
ordinances dealing with the transportation of nonhazardous solid waste and to ren
of such law promptly and at ECDC’s sole expense.
Coast - JPA Agreement 7 Draft of 7/25/94
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2.3.2.6.4 Coast (through its subcontract with ECI:
require ECDC to bear responsibility for all costs and expenses associated with the cle
spillage of Acceptable Waste enroute from the Transfer Station to the Landfill.
2.3.2.6.5 Coast (through its subcontract with ECT
Specifically, Coast (through its subcontract with ECDC) shall require ECDC to c
operate and maintain the Landfill in accordance with the Permits and with Applicable L
shall supply all equipment and labor for operation of the Landfill.
2.3.2.6.6
require ECDC to provide for the disposal of Acceptable Waste delivered from the
Coast (through its subcontract with ECI
require compliance from ECDC with all Applicable Laws in the operation of the Lan
will permit the Agency to conduct regular periodic environmental audits of the Landl
Coast (through its subcontract with ECI
require ECDC to have sole responsibility for all closure and post-closure costs at the
Fees paid by the Agency to Coast (and ultimately to E C) shall cover all current c11
post-closure required accruals. No change in lawF&y&zin Section 5 or othem
cause the Agency to pay for any closure or post-closure costs.
2.3.2.6.7
2.3.2.6.8 Coast (through its subcontract with ECI
require ECDC to supply, maintain, repair, and replace Containers in sufficient nu
handle the Agency’s disposal needs. Coast shall supply, maintain, repair and replace t
chassis in sufficient numbers to handle the Agency’s disposal needs.
2.3.2.6.9 Coast may comply with its obligations 1
Agreement by use of agents, subcontractors, or other designees of Coast’s. Coast si
to the use of other agents or subcontractors or other designees, obtain the permission (
who shall not unreasonably withhold that permission. Nonetheless, the parties conten
authorize Coast to subcontract with ECDC for the rail transfer and fi~l disposal of w
parties further contemplate and agree that Coast may use miscellaneous truckers to tran
from the Transfer Station to the railhead and that Coast shall not need the Agency’s p
to change such subcontractors from time to time without the Agency’s approval so lonj
requires the subcontractors to comply with the provisions of this Agreement and to be a
insured in accordance with this Agreement.
Section 3.
3.1
PAYMENT, RATES AND VOLUME REQUTREMENTS.
Once the Agency has initiated service, the Agency shall pay fifty-three (
eighteen cents ($53.18) per ton for all services under this Agreement including trz
excluding unacceptable or hazardous waste as referred to in this Agreement, fo
transportation and disposal of the Agency’s Acceptable Waste. This rate has been c
as follows:
Draft of 7/25/94 Coast - JPA Agreement 8
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- 3.1.1 $7.43 Coast’s fee to transfer and haui to railhead
3.1.2 $45.75 Landfill cost and railhead transfer and hau -
$53.18 TOTAL
3.2 This rate is based on the Agency tendering at least fifty percent (509
Agency’s Required Waste generated during the term of this Agreement to Coast for
transportation to and disposal at the Landfill. The Agency shall pay Coast for the b
hazardous waste program if the Agency requests such services. The Agency and CC
develop a mechanism for mutually agreeing upon the pricing of such service. The co
a function of the frequency of proposed service and extent of type of materials handlc
Agency and Coast agree to negotiate in good faith over the pricing of such services.
3.3 The above two rates shall be adjusted annually on January 1 of each yc
amount equal to ninety percent of the percentage change since January 1 of the next -
year in the Consumer Price Index for San Diego, California for the same period as
by the U.S. Department of Commerce or a comparable index in the event the Depa
Commerce should cease to publish such an index during the term of this Agreement.
This rate may also be adjusted for a Change of Law as provided in of 3.4
of this Agreement.
3.5 The costs and expenses incurred by Coast to handle, transport, and (
Unacceptable Waste shall be billed to the Agency as such costs and expenses are inc
shall be paid promptly by the Agency.
3.6 Coast shall never have the right to demand payment of any obligatj
Agency or it’s members under this Agreement from funds raised or to be raised by
The Agency shall make payments due under this Agreement from funds received by ti
from the operation of its solid waste collection services, and all payments to be made
Agreement shall constitute operating expenses of such solid waste collection services;
however, that nothing in this paragraph shall preclude the making of payments by tJ
from any money or revenues it may have on hand available for such purposes. Tl
agrees to impose such rates and charges for its solid waste collection services as
possible the prompt payment of all expenses incurred in operating and maintaining suc
including the payments due under this Agreement, and the Agency hereby expressly 1
revenues derived from such services to the payments that will become due under this L
(BRUCE, CALL WORDEX RE THE SECTION PART OF HIS NO. 12 IN HIS 1
Section 4. TIMING OF PAYMENT.
On or before the tenth (10th) day of each month, Coast shall submit to the invoice itemizing (he payments due to Coast based upon the total number of tons shi
Landfill and disposed of under this Agreement during the preceding month. Amour
Coast - JPA Agreement 9 Draft of 7/25/94
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by Coast for handling Unacceptable Waste may be billed separately or in the month
The Agency shall make payment to Coast of the total amount due Coast within twenty
following receipt of the invoice, or the end of the month, whichever is first.
Section 5.
5.1
RESPONSIBILITIES FOR COST INCREASE AND CHANGES Il
All benefits and all added costs, including wage increases, resulting frc
in technology, labor practices, availability of equipment and other business risks,
Changes in Law or the imposition of host fees by the city in which the Transfer
located, that may affect the performance of this Agreement, shall be borne or enjo
party incurring the cost or receiving the benefit and shall not be added to or subtracte
amounts to be paid by the Agency pursuant to this Agreement. The Agency sha
hundred percent (100%) of any additional costs incurred by Coast resulting from a
Law, and such additional costs shall be added to and incorporated in the amounts
pursuant to Section 2.
5.2 Coast shall notify the Agency of anticipated cost increases required as
Change in Law in advance of making such expenditures, including a general descript
Changes in Law and the estimated costs. Should such Change of Law result in an
the costs of providing such services to the Agency, then in effect, the Agency sha
right to terminate this Agreement. Coast will be required to provide service on an ir
for up to sixty (60) days, if requested by the Agency, after termination is given purs
Section. Prior to termination, the Agency shall give notice to Coast of its intent to
Coast and the Agency then agree to enter into formal mediation and termination is eff
upon the conclusion of such mediation. Coast shall provide transition services in t
new Transfer Station operator.
termination. However, the Agency shall pay the higher cost pending the actual tra
5.3 In the event of an increase in cost, which increases pass onto the f
Agency may, in its sole discretion, terminate this Agreement
5.4 Notwithstanding anything in this Agreement, in no event shall the
responsible for any closure or post-closure costs at the Landfill and Coast shall, in
with ECDC, so provide. No change in law will cause the Agency to be responsible
or post-closure costs.
Section 6. TERM.
This Agreement shall become effective on the date first written above, and :
in effect thereafter for a term of five (5) years from the Commencement Date, as dej
This Agreement will automatically terminate on July 2,, 1995, unless the Agenc
coast a Notice to Commence Service. The Agency shall have the right to tc
contract, without penalty or cost, at any time prior to July 1, 1995, and prior
service. Once the Agency begins delivering waste to Coast the contract term wil
(5) years. At the end of the fifth (5th) year of service, the Agency will have t
Coast - JPA Agreement 10 Draft of 7/25/94
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extend the contract for an additional five (5) years. At the end of the tenth (10th)
Agency will have the option to extend the contract for another five (5) years and so
total of forty (40) years (base term plus seven (7) five year extensions). If the Agenc
not to exercise any of its options to extend the contract, then the contract shall becorn{
void. The Agency must give Coast six (6) months notice of their intent to exercise
to extend the contract for an additional five (5) years.
Section 7. EARLY TERMINATION FOR ECONOMIC EFFICIENCY.
The Agency shall reserve the right to review with Coast, the cost of transpor
disposal of the waste; being initially provided by ECDC. Review of these costs can eighteen (18) months after the Commencement Date, if requested by the Agency
Should another less expensive transportation and disposal option exist at that time, tl
will have the right to direct Coast to subcontract with another transportation and dispos,
The determination by the Agency as to whether another method is less expensive
subjective on their part and can be based on either a long-term or a short-term analysi
However, if ECDC is terminated as the transportation and disposal option within thi
(5) years after the Commencement Date, ECDC shall be entitled to recoup the ur
portion of the capital expended on railcars and containers. The Agency will ma
payment to Coast on behalf of ECDC, on the termination date, an amount equ,
unamortized amount. Upon such payment ECDC will transfer to Coast, who will sim~
transfer to the Agency, title to the respective railcars and containers. For purpo
payment the amortization will be deemed to be on a straight-line basis, with twei
(20%) amortized each year. For example, if the Agency terminates ECDC aftc
eighteen (18) months, the Agency will make a cash payment to Coast equal to sevei
(70%) of the original capital expended by ECDC for railcars and containers. t
immediately pay to ECDC an equal amount of money. Prior to Commencement D:
will advise Coast and the Agency of its capital expenditures. Failure to SO advise 7
the Agency and Coast of any responsibility to pay for the unamortized capital expe
Agency may request Coast to request of ECDC, that they use their good faith and
to sell the rail cars. Prior to the actual sale, a determination will be made by the Ag(
wish to purchase rail cars and containers or have ECDC sell them and credit Co
Agency with the sales receipts paid. If the sales receipts are in excess of the unamort
equipment. then ECDC shall pay to Coast, who shall pay to the Agency, the exce
If the sales receipts are less than the unamortized capital expenditures,mwill
difference by the Agency.
Any alternative facility selected due to the provisions in this Section sh
federal, state and local requirements relating to transportation and disposal of :
including Subtitle D requirements, landfill reserve capacity, landfill design, insura
In order for Coast and ECDC to take advantage of the right to requ
unamortized capital expenditures be repaid to them, the contract between Coast and
require that ECDC advise Coast and the Agency of the amount of capitalbwfcost to
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Coast - JPA Agreement 11 Draft of 7/25/94
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The failure of ECDC to so notify Coast and the Agency of these costs shall relieve thc
of any liability for those costs.
Section 8. AGENCY REPRESENTATIONS AND WARRANTIES.
For the purpose of inducing Coast to enter into this Agreement, the Agency r
and warrants to Coast as follows:
8.1 Organization and Oualification. The Agency is a regional solid waste
of the State of California and has all requisite corporate power and authority to enteI
perform its obligations under this Agreement.
8,2 Authority.
8.2.1 The Agency has the authority to execute this Agreement, to
representations and warranties set forth in it and to perform the obligations of the Age,
this Agreement in accordance with its terms.
8.2.2 Neither the execution of this Agreement nor its performance by tl
will conflict with or result in the breach of any instrument, restriction, covenant, agrc
other undertaking to which the Agency is a party or by which the Agency is bound,
not violate or conflict with any rules, regulations or ordinances of the Agency.
8.2.3 This Agreement has been executed by all the officers of the Ager
execution is required, and this Agreement is a valid and binding obligation of th
enforceable in accordance with its terms and conditions, except as enforcement may 1
by bankruptcy, insolvency. reorganization, moratorium, or other laws relating to o
creditors’ rights generally.
8.3 Government Authorizations and Consents. The Agency has such license
and other authorizations from federal state and other governmental authorities, as are
for the performance of its obligations under this Agreement, and no consent, ay
authorization of or declaration, registration or f%ng with any governmental or regul:
is required to be obtained or made by the Agency as a prerequisite to its executi
Agreement or its performance of its obligations contemplated hereby.
8.4 Comdiance with Laws. The Agency has received no notice that it is ii
of any applicable law, ordinance or regulation the consequences of which will or may
affect the Agency’s ability to perform its obligations under this Agreement. The Agr
subject to any order or jud_ment of any court, tribunal or governmental agency, and
of no litigation or threat of litigation which does or would materially and adverselj
operations or its ability to perform its obligations under this Agreement.
Abilin of Agency to Direct Waste Flow. The Agency, so long as ir
permissible, shall use its best efforts to direct the flow of all waste, for which it has (
8,5
Coast - JPA Agreement 12 Draft of 7/25/94
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control, to this Agreement. The Agency will formally request from its member cities
adopt a formal policy to modify any collection contracts/franchises, as they becom
provide for the Agency to maintain ultimate authority to direct the waste to a particuli
station and/or disposal site. The Agency shall also provide Coast with copies of their
cities’ haulers franchise agreements to the extent that they are public records, or if 1
records, with the written consent of the contracting parties.
8.6 Accuracy of Information. None of the representations or warrant;
Agreement, and none of the documents, statements, certificates or schedules furnish€
furnished by the Agency pursuant hereto or in connection with the Agency’s perform
obligations contemplated under this Agreement, contains or will contain any untrue
of a material fact.
8.7 IndeDendent Examinations. In accepting these responsibilities, th
represents and affms that it has made its own examination of all conditions, faci
properties affecting the Agency’s performance of this Agreement and of the quantity ai
of labor, equipment, material needed and of applicable taxes, permits and laws.
Section 9. COAST REPRESENTATIONS AND WARRANTIES.
For the purpose of inducing the Agency to enter into this Agreement, Coast
and warrants to the Agency as follows:
9.1 Organization and Qualification. Coast is duly incorporated, validly e
in good standing under the laws of the State of California, and has all requisite corpc
and authority to enter into and perform its obligations under this Agreement.
9.2 Authority.
9.2.1 Coast has the authority to execute this Agreement, to
representations and warranties set forth in it and to perform the obligations of Coas
Agreement in accordance with its terms.
9.2.2 Neither the execution of this Agreement nor its performance bj
conflict with or result in the breach of any instrument, restriction, covenant, agreemc
undertaking to which Coast is a party or by which Coast is bound, and does no1
conflict with the Articles of Incorporation, or other charter documents or By-Laws
9.2.3 This Agreement has been executed by all the officers of c
execution is required, and this Agreement is a valid and binding obligation of Coast
in accordance with its terms and conditions, except enforcement may be limited by
insolvent, reorganization, moratorium, or other laws relating to limiting cred
generally.
Draft of 7/25/94 Coast - JTA Agreement 13
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that all Required Waste be collected by the Agency's solid waste collection service or (
to the Transfer Station for transportation to and disposal at the Landfill.
Section 11. UNACCEPTABLE WASTE.
Unacceptable Waste shall not be tendered by the Agency to Coast for transpo
and disposal at the Landfill. The Agency shall maintain a program to identify and I
Unacceptable Waste, and shall be responsible for arranging for the handling of dispos
Unacceptable Waste which is identified, and shall bear all expenses and costs incurred
handling and disposal. The Agency will review with Coast its program to idei
segregate Unacceptable Waste, who will approve or disapprove of such program pri commencement of service under this Agreement. Such approval in no way relieves th
from its obligation to not tender Unacceptable Waste.
In the event Unacceptable Waste is tendered to Coast for transportation and dis
Agency shall bear all expenses and costs incurred for all remedial and clean up work ne
thereby, whether such work is performed by the Agency or Coast, or the unauthorizec
of the Unacceptable Waste, except that Coast shall bear such costs and expenses for rei
and clean up of Unacceptable Waste to the extent the need for such remediation anc'
is caused or enhanced by it, or its employees or agents, acts or omissions.
Pursuant to Applicable federal regulations that become effective October 9, 19
is responsible to maintain and perform procedures to detect and prevent the disposal of
hazardous waste, as defined in 40 C.F.R. Part 261, and polychlorinated biphenyls ('I;
defined in 40 C.F.R. Part 761. Prior to and after the effective date of these regulatic
reserves the right to conduct, at its sole cost and expense, random inspections of incon
from the Agency to ensure that it does not contain regulated hazardous wastes, PCBr
Unacceptable Waste. The timing and frequency of such random inspections shall be
discretion of Coast, subject to its responsibility to comply with the federal regulations
in this paragraph shall relieve the Agency of its obligations to identify and
Unacceptable Waste at the Transfer Station as provided in the immediately preceding 1
If Unacceptable Waste is tendered to Coast and is discovered prior to dispc
Landfill, Coast immediately, or as soon as possible, shall return the Unacceptable W
Agency for proper handling and disposal, unless the Agency and Coast agree to diffr
for handling and disposing of the Unacceptable Waste.
If Unacceptable Waste tendered by the Agency is disposed of at the Landfill,
require ECDC to notify the Agency by telephone or telefax or other available me2
disposal immediately upon discovery, or as soon thereafter as is reasonably pos:
Agency shall promptly instruct ECDC how it desires ECDC to handle and dispc
Unacceptable Waste. If the Agency's instructions are agreeable to ECDC and in
with Applicable Laws, ECDC shall handle and dispose of the Unacceptable Wr
reimbursed by the Agency for its costs and expenses. If immediate corrective m
required or if the Agency does not provide ECDC with agreeable instructions
Coast - JPA Agreement 15 Draft of 7/25/94
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business days of the notice provided to the Agency, ECDC may take whatever reasonat
it deems necessary to remove, transport, and dispose of such Unacceptable Waste in ac
with Applicable LAW. and shall be reimbursed by the Agency for its costs and expem
Section 12. TITLE TO ACCEFTABLE WASTE AND UNACCEPTABLE WA!
12.1 Acceutable Waste. The resident or business owner owns all acceptable out for collection until picked up by the local collector who will own it until such ti
delivers it to the Transfer Station at which time it will be owned by the Transfer Statim
until such time as it is placed in transfer trucks after which time it shall be owned b
#.c 12.2 Unacceptable Waste. exlc
12.2.1 The resident or business owner owns and is responsible fc
put out for collection and has the responsibility to screen and not set out unacceptab
The local ColIector has the responsibility tdscreen and n
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12.2.2
unacceptable trash on it.
VI a<
12.2.3 The Transfer Station operator has the responsibility td
not accept unacceptable trash. C-4+jyA w-++ d- 4
12.2.4 The rail and landfill operators have the responsibility to
not accept unacceptable trash.
If something slips through, it is the responsibility of the party who did
with the above.
Section 13. HOUSEHOLD HAZARDOUS WASTE.
The Agency and Coast shall, in a joint planning conference, determ
responsibilities and compensation for the collection of household hazardous waste. St
shall be held not less than annually. .
13.1 The Agency shall do the following:
13.1.1
13.1.2
Determine the criteria for non-member residents use of
Cause each hosting city to notify and coordinate with (
and city haulers.
13.1.3 Agency and the respective city shall provide traffic
support staff as deemed necessary by the city and the Agency.
Coast - JPA Agreement 16 Draft of 7/25/94
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13.2 Household hazardous waste events shall be budgeted annually base
participation and costs of prior years events.
13.3 Agency and Coast shall determine the amount Coast is to be paid and
will be added to tonnage charges at the transfer station. The cost shall be spread to
tonnage passing through the transfer station.
Section 14. FORCE MAJEURE.
In the event any party in unable to meet its obligations under this Agreement ;
of Force Maieure, the obligations of the party affected by the Force Maieure conditio
suspended for the duration of same, as more fully described in Section 1.8
Section 15. SERVICE IN THE EVENT OF NON-FORCE MAJEURE CONDl
In the event Coast or ECDC is unable to transfer, or transport Acceptable W;
or operate the Landfill because of any cause which is not a Force Maieure condition, (
use reasonable efforts to attempt to find alternative transfer facilities or alternative trar
to the Landfill or an alternate landfill site to dispose of the Agency's Acceptable Wz
shall enter into good faith negotiations with the Agency to determine the amount to 1
the additional cost for transfer, transportation to the landfill or for transportation to ai
at an alternative landfill site.
Section 16. INDEMNITY. (WORDEN IS TO DISCUSS WITH BRUCE)
16.1 To the extent permitted by law, the Agency shall defend, indemnifi
harmless Coast, its directors, officers, agents, employees, subcontractors, successors
from all losses, damages, demands, suits, judgments of any kmd, on account of i
death of any and all persons (including but not limited to the Agency, its agents, I
subcontractors and their successors and assigns as well as Coast, or its agents, ai
parties), and/or on account of all property damage of any kind, including loss or U!
therefrom, in connection with the work performed under this Agreement, or
occasioned in whole or in part by reason of or agents in corn
the work performed under this Agreement, except only for those losses resultin
established active negligence or willful misconduct of Coast, or its agents,
subcontractors, successors and assigns.
Except as provided otherwise in this Agreement as to Acceptable W
the extent permitted by law, the Agency shall also save, indemnify, defend and ho
Coast, and its directors, officers, agents, employees, subcontractors, successors i
from and against any and all claims, losses, damages (including special and CE
damages), suits, liability, and expense arising from or connected with the tra
transfer, delivery, treatment, dumping, storage or disposal of Acceptable Waste or I'
Waste, by the Agency, or any other act of omission of the Agency, its agents, el
other person designated by the Agency to receive, transfer, deliver, treat, dump, stoi
Coast - JrA Agreement 17 Draft of 7/25/94
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of Acceptable Waste or Unacceptable Waste; including, but not limited to, damages ci
sudden accidental pollution, the contamination of Acceptable Waste by hazardous hazardous materials, hazardous substances, or toxic wastes or substances, and an
penalties or suits resulting from alleged or actual violation of federal, state
environmental or other law, statute, penalties, code, or regulation.
In particular. but without limiting the foregoing, if the Agency, knov
unknowingly, tenders or ships any Unacceptable Waste, as defined in this Agreen
Agency shall, to the extent permitted by law, save, indemnify, defend and hold harmlc
and its directors, officers, agents, employees, subcontractors, successors, and assigns,
against any and all claims. losses, damages (including special and consequential damage
liability and expense arising out of the transportation, transfer, delivery, treatment, t
storage or disposal of Unacceptable Waste, including but not limited to any and all c
decontamination costs, any environmental fines or penalties, and any liability or
liability pursuant to the Comprehensive Environmental Response Compensation and Lia
of 1980 and any amendments thereto, and for any similar liability under federal, stat(
laws regulations or ordinances. The Agency shall also pay the amounts set forth in S
with respect to Unacceptable Waste.
16.2 Coast shall defend, indemnify and save harmless the Agency from i
damages, demands, suits. judgments of any kind, on account of injury to or death o
all persons@) (including but not limited to Coast, its agents, employees, subcontractors
successors and assigns as well as Agency or its agents, and all third parties), and/or o
of all property damage of any kind, including loss of use resulting therefrom, in connec
the work performed under this Agreement, or caused or occasioned in whole or i
reason of the acts or omissions of Coast or its subcontractors, employees or agents in c
with the work performed under this Agreement, except only for those losses resultin1
established active negligence or willkl misconduct of the Agency or its agents, des
employees.
Section 17. INSURANCE.
Coast shall obtain and maintain separate insurance policies covering all aspects
to be provided to the Agency.
17.1 Coast shall maintain limits of insurance no less than:
a. Commercial General Liability:
General Aggregate Limit $3 ,c
Products - Completed Operations Aggregate Limit $3,C
Personal & Advertising Injury Limit $1 ,c
Each Occurrence Limit $1 ,c
Fire Damage Limit $1
b. Automobile Liabilitv:
Coast - JPA Agreement 18 Draft of 7/25/94
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Combined Bodily Injury tk Property $1,0(
Damage Liability Coverage $1 ,oI
Each Occurrence Limit $2,01
Aggregate Limit $2,01
d. Worker Compensation and Emulovers Liability: Workers Con
limits as required by the Labor Code and the States of California
(as applicable) and Employers Liability of $l,OOO,OOO per accic
Deductibles and Self-Insurance Retentions. Any deductible or self-
retention must be declared to and approved in writing by the Agency. At the opti
Agency, either: the insured shall reduce or eliminate such deductible or self-insured
as respects to Agency, its officials, employees, agents or volunteers; or Coast shall p
additional letter of credit or bond guarantying payment losses and related investigatic
administration and defense expenses.
C. Excess Liability (Umbrella)
17.2
17.3 Other Insurance Provisions. The policies are to contain, or be en
contain, the following provisions:
17.3.1 General Liability and Automobile Liability Coverage.
17.3.1.1 Agency, its officials, employees, agents and voh
to be covered as additionaI insured as respects to liability arising out of activities perf(
or on behalf of Coast; products and completed operations of Coast; premises owned,
used by Coast; or vehicles owned, leased. hired or borrowed by Coast. The addition2
status afforded to Agency shall not apply to claims, suits, damages or losses arising c
Agency’ negligence, omissions or misconduct.
17.3.1.2 Coast’s insurance shall be primary insurance as I
Agency, its officials, employees, agents and volunteers. Any insurance or self-:
maintained by the Agency, its officials, employees or volunteers shall be in addition tr
insurance and shall not contribute to it.
17.3.1.3 Coverage shall state that Coast’s insurance SI
separately to each insured against whom claim is made or suit is brought, except wit1
to the limits of insurer’s liability.
17.3.2 Workers Compensation and Employers Liability Coveral
insurer shall agree to waive all rights of subrogation against the Agency, its officials, en
agents, and volunteers for losses arising from work performed by Coast for the Agen
17.3.3 All Coverage. Each insurance policy required by this clause
endorsed to state that coverage shall not be suspended, modified, or canceled by eith
Coast - JPA Agreement 19 Draft of 7/25/94
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reduced in coverage or in limits except after thirty (30) days' prior written notice by
mail, return receipt requested, has been given to Agency.
17.4 Acceptability of Insurers. The insurance policies required by this sec
be issued by an insurance company or companies authorized to do business in tht
California and with a rating in the most recent edition of Best's Insurance Repor
category VI1 or larger and a rating classification of A or better.
17.5 Verification of Coverage. Coast shall furnish the Agency with certi
insurance which evidences coverage required by this Section. The certificates of inst
to be signed by a person authorized by that insurer to bind coverage on its beh
certificates must be received and approved in writing by the Agency before work COI
17.6 Subcontractors. Coast shall include all subcontractors as insured
policies or shall furnish separate certificates of insurance for each subcontractor. All
for subcontractors shall be subject to all of the requirements stated herein.
17.7 Required Endorsements.
17.7.1
in substantially the following form:
The Workers Compensation policy shall contain an enc
"Thirty (30) days prior written notice shall be given to Agency in th
cancellation, reduction in coverage, or non-renewal of this policy. I' Such notice sh
to:
Attention: City Manager
City of Oceanside
300 North Hill Street
Oceanside, CA 92054
17.7.2 The Public Liability policy shall contain endorst
substantially the following form:
17.7.2.1 "Thirty (30) days prior written notice shall b
agency in the event of cancellation. reduction in coverage, or non-renewal of this pol
notice shall be sent to:
Attention: City Manager
City of Oceanside
300 North Hill Street
Oceanside, CA 92054
Coast - JPA Agreement 20 Draft of 7/25/94
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"Agency, its officers, employees, agents, and volunteers are
insureds on this policy, but only to the extent of the insurable liability arising out
negligent performance of Coast's work required hereunder. 'I
17.7.2.2 "This policy shall be considered primaq
as respects to any other valid and collectible insurance maintained by Agency, inc
self-insured retention or program of self-insurance, and any other such insuranc
considered excess insurance only. I'
17.7.2.3 "The policy shall protect Contractor and Agency
manner as though a separate policy had been issued to each, but this shall not operate
the insured limits of liability as set forth in the policy. 'I
17.8 Delivery of Proof of Coverage. Simultaneously with the executj
Agreement, Coast shall furnish Agency insurance certificate of each policy of insuranc
hereunder, in form and substance satisfactory to Agency. Such certificate shall sho
and amount of coverage, and effective dates and dates of expiration of policies.
Renewal certificates will be furnished periodically to Agency to dl
maintenance of the required coverage throughout the Term.
17.9 Other Insurance Requirements. In the event any services are delt
subcontractor, Coast shall require such subcontractor to provide statutory workers' COI
insurance and employer's liability insurance for all of the subcontractor's employec
in work in accordance with this Agreement. The liability insurance required by this
of the requirements of this Agreement.
shall cover all subcontractors or subcontractors must furnish evidence provided by it,
Coast shall comply with all requirements of the insurers issuing pol
carrying of insurance shall not relieve Coast from any obligation under this Agreemt
claim exceeding the amount of any deductibles or self-insured reserves is made bj
person against Coast or any subcontractor on account of any occurrence rela
Agreement, Coast shall promptly report the facts in writing to the insurance carriers
Agency.
If Coast fails to procure and maintain any insurance required by this 1
Agency may take out and maintain, at contractor's expense, such insurance as it
proper and deduct the cost thereof from any monies due Coast.
The Public Liability insurance required by this agreement shall be WI
obtainable, Coast must arrange for "tail coverage" to protect Agency from claim:
the expiration or termination of this Agreement related to incidents which occurred p
expiration or termination.
"occurrence", rather than a "claim made" basis, if such coverage is obtainable.
Coast - JPA Agreement 21 Draft of 7/25/94
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Section 18. FAITHFUL PERFORMANCE BOND.
Simultaneously with the execution of this Agreement, Coast shall file with P
bond, payable to Agency, securing contractor's faithful performance of its obligations u
Agreement. The principal sum of the bond shall be One Million Dollars ($l,OOO,0o0.C
bond shall be executed as surety by a corporation authorized to issue surety bonds in
of California, with a financial condition and record of service satisfactory to Agency. '
shall be in the form attached hereto as Exhibit "C" and incorporated herein by referenc
alternative, Coast may deposit a letter of credit or open certificate of deposit in the niil
Agency to be held to secure this faithful performance.
Section 19, RELATIONSHIP OF THE PARTIES.
19.1 Nothing in this Agreement shall be construed as to cause the parties to be
in a partnership or joint venture.
19.2 Coast shall perform all work under this Agreement as independent COI
Coast nor any of Coast's subcontractors, employees or agents are or shall be cor
considered to be employees, agents, or servants of the Agency for any purpose I.
Agreement.
19.3 Coast shall have exclusive control of and the exclusive right to control th
and work performed by its employees, subcontractors and agents.
19.4 The relationshp between Coast and ECDC shall be that of prime conti
subcontractor, respectively.
Section 20. EOUAL OPPORTUNITY /NON-DISCRmATION.
Coast shall not discriminate against any employee or applicant for employme
of race, religion, creed, color, sex, marital status, sexual orientation, political
ancestry, national origin, or the presence of any sensory, mental, or physical handic
based upon a bona fide occupational qualification. Coast shall take affirmative actior
that applicants are employed. and that employees are treated during employment, with
to their creed, religion, race, color, sex, marital status, sexual orientation, political
ancestry, national origin, or the presence of any sensory, mental, or physical handic
action shall include, but not be limited to the following: employment, upgrading, de
transfer, recruitment or recruitment advertising, layoff or termination rates of pay or o
of compensation, and selection for training, including apprenticeship.
Section 21. ASSIGNMENT.
Except as provided in thls Agreement, neither party shall assign its rights nl
or otherwise transfer its obligations under this Agreement to any other person withol
Coast - JPA Agreement 22 Draft of 7/25/94
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written consent of the other party. Any such assignment without the consent of the 01
shall be void and the attempted assignment shall constitute a material breach of this Ai
For purposes of this Section, "assignment" shall include, but not be limited to,
Agreement to a third party; (ii) a sale, exchange or other transfer of ten percent (10% of me outstanding common stock of Coast; (iii) any reorganization, consolidatioi
recapitalization, stock issuance or re-issuance, voting trust, pooling Agreemen
arrangement, liquidation or other transaction to which Coast or any of its shareholders
to which results in a change of ownership or control of ten percent (10%) or more of
or voting rights in the stock of Coast's and (iv) any combination of the foregoing (v
not in related or contemporaneous transactions) which has the effect of any such t
change of ownership. For purposes of this Section, the term "proposed assignee" s
to the proposed transferee(s) or other successors(s) in interest pursuant to the as
However, no transfer by Arie de Jong to any of his children, children's sp
grandchildren shall be deemed to be a change of ownership or transfer of control.
exchange or other transfer of substantially all of Coast's assets dedicated to service 1
Coast acknowledges that this Agreement involves rendering a vital service tc
residents and businesses, and that Agency has selected Coast to perform the service, herein based on (1) Coast's experience, skill and reputation for conducting its S(
management and disposal operation in a safe, effective and responsible fashion, at a
keeping with applicable waste management laws, regulations and good waste m(
practices, and (2) Coast's financial resources to maintain the required equipment and
its indemnity obligations to Agency under this Agreement. Agency has relied on ea(
factors, among others, in choosing Coast to perform the services to be rendered by C
this Agreement.
If Coast requests Agency's consideration of and consent to an assignment, A;
deny or approve such request in its complete discretion. No request by Coast for co
assignment need to be considered by Agency unless and until Coast has met the
requirements:
21.1 Coast shall pay Agency its reasonable expenses for attorney's
investigation costs necessary to investigate the suitability of any proposed assign
review and finalize any documentation required as a condition for approving
assignment.
21.2 Coast shall furnish Agency with financial statements of the proposed
operations for the immediately preceding three (3) operating years;
21.3 Coast shall furnish Agency with satisfactory proof: (i) that the propos
has at least ten (10) years of Solid Waste management experience of a scale t
exceeding the sale of operations conducted by contractor under this Agreement; (ii:
last five (5) years, the proposed assignee has not suffered any citations or other CE
any federal, state or local agency having jurisdiction over its waste management opt
Coast - JPA Agreement 23 Draft of 7/25/94
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to any significant failure to comply with state, federal or local waste management la-
the assignee has provided Agency with a complete list of such citations and censures
the proposed assignee has at all times conducted its operations in an environmentall!
conscientious fashion; (iv) that the proposed assignee conducts its Solid Waste mi
practices in accordance with sound waste management practices in full compliancj
federal, state and local laws regulating the Collection and disposal of waste; and (v) of
information required by the Agency to ensure that the proposed assignee can fulfill th
this Agreement in a timely, safe and effective manner.
21.4 Under no circumstances shall any proposed assignment be considered t:
if Coast is in default at any time during the period of consideration.
21.5 If Agency consents to an assignment at the point of transition, (
cooperate with the Agency and subsequent Coast(s) or subcontractor(s) to assist in i
transition which will include Coast providing route lists and billing information.
21.6 In connection therewith, Coast acknowledges that the provisions
Resources code Section 49520-49523 have no application to this Agreement and agrt
extent such sections may have application, to waive whatever rights they may afford
Any application for an agreement transfer shall be governed by the 21.7
conditions:
21.7.1 Any application for an agreement transfer shall be r
manner prescribed by Agency or its designee. The application shall include a transfei
amount to be set by agency by Resolution of the Agency Board to cover the cost of
and indirect administrative expenses including consultants and attorneys, necessary to i
addition, Coast shall reimburse Agency for all costs not covered by the transfer fee.
be supported with evidence of the expense or costs incurred. The applicant shall pay
within (30) days of receipt.
analyze the application and to reimburse Agency for all direct and indirect expe
21.7.2 The agreement transfer fees are over and above any Agret
specified in the Agreement.
21.7.3 The agreement transfer fee shall apply to the transf
Agreement resulting from this Agreement.
Section 22. RECORDS.
All parties hereto shall maintain in their offices full and complete accountin
prepared in accordance with generally accepted accounting principles, reflec performance under this Agreement.
Coast - JPA Agreement 24 Draft of 7/25/94
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Section 23, APPLICABLE LAW.
The substantive laws of the State of California, excluding any law, rule or 1
which might refer to the substantive law of another jurisdiction, will govern the interp
validity and effect of this Agreement without regard to the place of execution or the I
performance thereof, and the Agency and Coast agree that the state and federal courts
in San Diego County, California, shall have personal jurisdiction over the Agency and C
to hear all disputes arising under this Agreement.
Section 24. DISPUTE RESOLUTION.
THE PARTIES DESIRE AND INTEND THAT ANY DISPUTES ARISING 4
THIS AGREEMENT SHALL BE MUTUALLY RESOLVED BY THEM IN GOO1
WITHOUT ASSISTANCE FROM THIRD PARTIES.
AMI DISPUTE ARISING OUT OF OR RELATING TO THIS AGRE
THAT CANNOT BE MUTUALLY RESOLVED BY THE PARTES TBROUGI
FAITH EFFORTS SHALL BE SETTLED BY ARBITRATION IN ACCORDANC
THE RULES OF THE AMERICAN ARBITRATION ASSOCIATION. THE P
WILL CONTINUE PERFORMANCE UNDER THIS AGREEMENT 1
ARBITRATION OF ANY DISPUTE. THE PARTY DESIRING ARBITRATIOP
PROVIDE TO THE OTHER PARTIES A WRITTEN NOTICE OF SUCH
WHICH IDENTIFIES THE SPECIFIC QUESTION TO BE SUBMITTI
ARBITRATION. THE FORUM FOR ARBITRATION SHALL BE AS MU'
AGREED OR, IF NOT AGREED, COUNTY OF SAN DIEGO, CALIFORNIA
AND THE TWO ARBITRATORS SHALL SELECT A THIRD ARBITRAT(
PANEL MEMBERS SHALL HAVE SUBSTANTIAL EXPERIENCE WITH REC
THE SUBJECT MATTER IN DISPUTE. THE BOOKS AND RECORDS
PARTIES INVOLVED IN THE DISPUTE, INSOFAR AS THEY RELATE
MATTERS SUBMITTED TO ARBITRATION, SHALL BE OPEN FOR EXAM]
BY THE ARBITRATORS. IN THE ABSENCE OF A UNANIMOUS DEC
DECISION. AFTER HEARING THE TESTIMONY AND ARGUMENTS SUI
BY EACH PARTY, THE ARBITRATION PANEL SHALL STATE ITS A!
WRITING WHICH, WHEN DELIVERED TO THE PARTIES, SHALL BE
AND CONCLUSIVE UPON EACH PARTY 9 AND EACH PARTY HEREBY AG BE BOUND CONCLUSIVELY THEREBY. IMMEDIATELY AFI"
ARBITRATION AWARD, EACH PARTY SHALL MAKE SUCH CHANGE
CONDUCT OF ITS BUSINESS, OR SUCH PAYMENTS OR RESTITUTION
CASE MAY BE, AS ARE REQUIRED BY THE AWARD. IF THE AWARD R
ONE OF THE PARTIES TO PAY AN ADDITIONAL AMOUNT, THAT PAR?
PAY INTEREST ON THE UNPAID BALANCE OWED AT THE PRIME FUTE
COMPUTED J!ROM THE DATE WHEN PAYMENT OF SUCH AMOUNT B
Coasr - JPA Agreement 25 Draft of 7/25/94
PARTY INVOLVED IN THE CONTROVERSY SHALL SELECT ONE mr
SHALL BE THE PRESIDING OFFICER OF A THREE-PERSON PANEL. ALI
MAJORITY OF THE THREE-PERSON PANEL MAY ISSUE THE ARB17
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ACCRUE. EACH PARTY SHALL BEAR ITS OWN ATTORNEYS FEES AND
OF ARBITRATION.
IF ANY PARTY REFUSES TO COMPLY WITH THE ARBITRATION A
WITHIN THIRTY (30) DAYS OF ISSUANCE OF THE AWARD, THE OTHER
OR PARTIES AS ITS OR THEIR DISCRETION MAY ENFORCE THE AWARD
APPROPRIATE COURT.
AGENCY INITIALS
COAST INITIALS
Section 25. EVENTS OF DEFAULT
Each of the following shall constitute an event of default ("event of Default") he
25.1 Coast fails to perform itslpbligations under this Agreement, as it may be ;
from time to time, and if the failure or refusal of Coast to perform as required
Agreement is not cured within five (5) business days after receiving notice from the
specifying the breach;
#a +&'J
CUC &,J 25.2 Anyhepresentation or disclosure made to the Agency by Coast in conneci
or as inducement to entering into this Agreement or any future amendment to this Ag
which proves to be false or misleading in any material respect as of the the and repre
or disclosure is made, whether or not any such representation or disclosure appears
of this Agreement;
25.3 There is a seizure or attachment (other than a prejudgment attachment) o
affecting possession on, the operating equipment of Coast, including without limit its
maintenance or office facilities, or any part thereof of such proportion as to impah
ability to perform under this Agreement and which cannot be released, bonded, or (
lifted within forty-eight (48) hours excluding weekends and holidays;
25.4 Coast files a voluntary petition for debt relief under any applicable baI
insolvency, debtor relief, or other similar law now or hereafter in effect, or shall cons
appointment of or taking of possession by a receiver, liquidator, assignee (other than
of a transfer of equipment no longer useful to contractor or necessary for this Agrc
trustee (other than as security for an obligation under a deed of trust), custodian, sec
Coast's property, or shall make any general assignment for the benefit of contractor's
or shall fail generally to pay contractor's debts as they become due or shall take any
furtherance of any of the foregoing;
(or similar official) of Coast for a pan of Coast's operating assets or any substanti,
25.5 Any court having jurisdiction shall enter a decree or order for relief in
contractor, in any voluntary case brought under any bankruptcy, insolvency, debtor
Coast - JPA Agreement 26 Draft of 7/25/94
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similar law now or hereafter in effect, or contractor shall consent to or shall fail to o
such proceeding, or any such court shall enter a decree or order appointing a
liquidator, assignee, custodian, trustee, sequestrator (or similar official) of Coast or fc
of Coast’s operating equipment or assets, or order the winding up or liquidation of
of contractor;
25.6
to this Agreement.
Coast fails to provide reasonable assurances of performance as requirec
25.6.1 Agency’s Remedies Cumulative: Specific Performance.
right to terminate the agreement pursuant to this Agreement and to take possession
properties pursuant to this Agreement are not exclusive, and Agency’s terminati
agreement shall not constitute an election of remedies. Instead, they shall be in addit
and all other legal and equitable rights and remedies which Agency may have.
By virtue of the nature of this Agreement, the urgency of timely, conti
high quality service, the lead time required to effect alternative service, and the righ
by the Agency to Coast, the remedy of damages for a breach hereof by contractor is i
and Agency shall be entitled to injunctive relief.
25.6.2 Excuse from Performance. The parties shall be exci
performing their respective obligations hereunder in the event they are prevented
performing by reason of force majeure as described and defined in this Agreement .
The party claiming excuse from performance shall, within two (2) days
party has notice of such cause, give the other party notice of the facts constituting s
and asserting its claim to excuse under this Section. Notwithstanding, Coast in the (
catastrophic event shall comply with the Agency members’ Emergency Preparedness
In the event that either party validly exercises its rights under this Se
parties hereby waive any claim against each other for any damages sustained thereby
The partial or complete interruption or discontinuance of Coast’s servic
by one or more of the events described in this Section shall not constitute a default
under this Agreement. Notwithstanding the foregoing, however, (1) the existence of
from performance will not affect the Agency’s rights pursuant to this Agreement;
Coast is excused from performing its obligations hereunder for any of the causes lis1
Section for a period of thirty (30) days or more, other than as the results of third p
disputes where service cannot be provided for reasons described earlier in this Sectior
shall nevertheless have the right, in its sole discretion, to terminate this Agreement
ten (10) days notice, in which case theflrovisions of Section % Z will apply.
,WTe‘”- -
25.6.3 Right to Demand Assurances of Performance. If Coas
subject of any labor unrest including work stoppage or slowdown, sickout, picketin]
Coast - JPA Agreement 27 Draft of 7/25/94
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concerted job action; (2) appears in the reasonable judgment of Agency to be unable to I
pay its bills as they become due; or (3) is the subject of a civil or criminal inves
chargee, or judgment or order entered by a federal, state, regional or local agency for 7
Of a law relating to performance under this Agreement, and Agency or his/her designee
in good faith that Coast’s ability to perform under this Agreement has thereby been 1
substantial jeopardy, Agency may, at its option and in addition to all other remedies it II
demand from Coast reasonable assurances of timely and proper performance of this Ag
in such form and substance as Agency or hidher designee believes in good faith is re
necessary in the circumstances to evidence continued ability to perform under the Ag
If Coast fails or refuses to provide satisfactory assurances of timely and proper perfor
the form and by the date required by the Agency, such failure or refusal shall be an
default for purposes of this Agreement.
Section 26. BINDING ON SUCCESSORS
The provisions of this Agreement shall inure to the benefit of and be bindb
successors and permitted assigns of the parties.
Section 27. TRANSITION TO NEXT CONTRACTOR.
If at any point Agency desires to franchise solid waste services to a third party 1
franchised to Coast under this Agreement, contractor shall be obligated at the point oft
to cooperate with agency and subsequent contractor(s) to assist in an orderly transit;
will include Coast providing transfer, transportation and billing information. Contract(
be obligated to sell vehicles, bins and containers to the next contractor. Depe
contractor’s circumstances at the point of transition, Coast at its option may c
negotiations with the next contractor to sell (in part or all) transportation equipment.
Section 28. PARTIES OF JWEREST.
Nothing in this agreement, whether express or implied, is intended to confer i
on any person other than the parties to it and the representatives, successors and
assigns.
Section 29. WAIVER.
The waiver by either party of any breach or violation of any provisions of this 1
shall not be deemed to be a waiver of any breach or violation of any other provision 1
subsequent breach or violation of the same or any orher provision. The subsequent i
by either party of any monies which became due hereunder shall not be deemed to bi
of any preexisting or concurrent breach or violation by the other party of any provisi
Agreement.
Section 30, CONTRACTOR’S INVESTIGATION.
Draft of 7/25/94 Coast - JPA Agreement 28
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Coast has made an independent investigation (satisfactory to it) of the conditil
circumstances surrounding the Agreement and the work to be performed by it.
Section 31. CONDEMNATION.
Agency fully reserves the rights to acquire Coast’s property utilized in the perf(
of this Agreement, by purchase or through the exercise of the right to eminent domah
Section 32. REPRESENTATIVE OF THE PARTIES.
All actions to be taken by the Agency shall be taken by the Agency’s Board of I
except as provided below. The Agency’s Board of Directors may delegate, in writing, i
to other agency officials and may permit such officials, in turn, to delegate in writing
all of such authority to subordinate officers. Coast may rely upon actions taken
delegates if they are within the scope of the authority properly delegated to them.
Coast shall, by the Effective Date, designate in writing a responsible officer R
serve as the representative of Contractor in a11 matters related to this Agreement i
inform the Agency in writing of such designation and of any limitations upon hidher :
to bind Coast. Agency may rely upon action taken by such designated representative I
of Coast unless they are outside the scope of tlie authority delegated to Wher by
communicated to the Agency.
Section 33. AGENCY FREE TO NEGOTIATE WITH THIRD PARTIES.
The Agency may, at any time, investigate all options for the provision of the c
and non-exclusive services granted to Coast by this Agreement after the expiration of 1
or termination. Without limiting the generality of the foregoing, the Agency ma
proposals from Coast and from third parties for the provision of transfer services and
services, and may negotiate and execute agreements for such services which will ta
upon the expiration or earlier termination under Section 7 of this Agreement and/or a
Agreements.
Section 34. SEVERABILITY.
34.1 If a provision of this Agreement becomes unlawful by virtue of a chang
regulations, or court decision, such provision shall be considered as having been seve
this Agreement and the remaining provisions of this Agreement shall continue in full ‘
effect; provided however, that if in the absence of such unlawful provision or any pal
the maintenance of this Agreement results in a material adverse effect on any party,
suffering the material adverse effect may initiate renegotiation of this Agreement; a1
provided, however, that in no event shall competitive proposals for transport or dispc
Agency’s Acceptable Waste be ground for renegotiation.
Coast - JPA Agreement 29 Draft of 7/25/94
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34.2 Renegotiation shall be initiated by written notice to the other parties. I
renegotiated pursuant to this provision shall be reduced to writing and included in an
to this Agreement. If after renegotiation in good faith the parties are unable to agree
terms withii sixty (60) days of the date of the written request for renegotiation, any
request arbitration pursuant of this Agreement. During renegotiation and arbitration, t
rights and obligations shall continue under this Agreement.
Section 35. CONTRACT RIGHTS.
35.1 The parties reserve the right to make written amendments of this Agree
time to time by mutual agreement.
35.2 Rights under this Agreement are cumulative, and are in addition PO righ
by statute or at common law. The use of one remedy does not exclude or waive the ri
another.
35.3 Continued performance under this Agreement by any non-defaulting 1
not waive its rights or remedies under the agreement against a defaulting party. Failu
party on any occasion to exercise a right shall not forfeit or waive the right to exercist
on another occasion.
35.4 Termination or expiration of this Agreement for any reason shall not rc
party from any obligations which may have accrued under this Agreement prioi
termination.
Section 36. APPROVALS.
Any approvals required from any party under this Agreement shall not be unr~
withheld.
Section 37. ENTIRE AGREEMENT.
This Agreement contains all the promises of the parties and no earlier or subsec
understandings or negotiations modify its provisions. This Agreement shall be interpi
whole to carry out its purposes.
Section 38. CAPTIONS.
Captions are for convenient reference only. A caption does not limit or expand
or add commentary to the text.
Section 39. NOTICES.
All official notices or approvals shall be in writing. Unless otherwise directec
shall be delivered or mailed to the parties at the following respective addresses.
Coast - JPA Agreement 30 Draft of 7/25/94
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To Agency:
Attention: City Manager City Manager City Manager
City of Oceanside City of Carlsbad City of Escondido
300 North Hill Street 201 N. Broadway
Oceanside, CA 92054 Carlsbad, CA 92008 Escondido, CA 92C
1200 Carlsbad Village Dr.
To Coast Attention: General Manager
Coast Waste Management
P.O. Box 947
Carlsbad, CA 92018-0947
Any party may from time to time designate a new address for notices.
return receipt or other document establishes otherwise, a notice sent by U.S. Mai
presumed to be received the third business day after its mailing.
This Agreement has been executed by authorized officials of the parties as o
first above written.
Attest: NORTH COUNTY SOLID WASTE
MANAGEMENT AUTHORITY
9 5
BY e - Title g s 9
Attest: COAST WASTE MANAGE 3i NT, INC
d
BY %
Title e-
% 9 P 5s 5
v
e Coast - JPA Agreement 31 Draft of 7/25/94
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Coast - JPA Agreement 32 Draft of 7/25/94
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d EXHIBIT “B”
San Marcos Transfer Station Project Schedule:
June 30, 1994 Army Corp. of Engineers, U.S. Fish & Wildlife, Stz
Water Resources Control Board, California Fish
Game joint meeting for issuing permit for S
. Marcos Creek channelization project.
August 1994 San Marcos Creek channelization plans submitted
City of San Marcos.
Transfer Station is planned to go to the City of S
Marcos: Planning Commission for hearing.
City Council hearing
November 7, 1994
December 7, 1994
* October 1994 Architectural and Civil engineering plans will
submitted to the City of San Marcos.
Bid Specifications for construction released December 1994
March 1995 Construction to start
September 1995 Transfer Station permitted
September 1995 California Integrated Waste Management Bo
issues solid waste facilities permit
2 10537-exhibit
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NORTH COUNTY SOLID WASTE MANAGEMENT AGENCY
Alternative Disposal Agreement
Summary of Key Issues
A. The Service: Provides for the transfer and disposal of waste from the member (
the Agency; the amount of required waste is equivalent to 50% of each city’s w:
thus maintaining our obligation to meet A8939 requirements,
B. Transfer Capability: Identified as available through existing permits at the Palor
Transfer Station or at the Proposed Liberty Recycling Transfer Station in San MI
Activation of Service: The sole responsibility of the Agency; the contractor mus
provide service within 120 days of activation.
No Service Activation: The agreement is automatically terminated in July, 1995
Agency may also terminate the agreement for any reason prior to July, 1995.
Term: The agreement is for a five year period; at the end of the initial period, tL
agreement may be extended in five year increments up to forty years. At the
activation of the agreement, twenty years of disposal capacity will be reserved 1
Agency.
The Cost: Transfer, Transportation and Disposal is $53.18 per ton. This cost i:
with escalation at 90% of the CPI annually.
Cost Increases: Including those due to change in law, are not automatically bc
the Agency; the Agency has the right to terminate the agreement if cost increa:
make the service economically infeasible.
Early Termination: The transportation and disposal portion of the agreement TT
terminated at the Agency’s discretion if a more cost efficient option becomes a
The Agency will be responsible to cover unamortized capital expenditures (con
rail cars, etc.) made on its behalf.
Household Hazardous Waste Collection Program: May be established by the 1
and the Contractor; this program will include collection events in each membe
The cost of the program will be set by the Agency and the Contractor; the pro!
effectiveness and costs will be reviewed annually.
C.
D.
E.
F.
G.
H.
I.
Exh