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Home My WebLink About1994-10-25; City Council; 12920; PROPOSED AGREEMENT BETWEEN NORTH COUNTY SOLID WASTE MANAGEMENT AGENCY AND COAST WASTE MANAGEMENTAB # /d 7470 TITLE: 10/25/?L( PROPOSED AGREEMENT BETWEEN NORTH COUNTY SOLID WASTE MANAGEMENT AGENCY -i MTG. DEPT. CM AND COAST WASTE MANAGEMENT 0 C C L 2 aJ a) N a al E M -”, 0 8 C .rl u L) cd cd .rl 4 C w c1 0 N 0 -d k a u % 0 a a) k cd ,G B 4J TI F: 2 U aJ k U 0 w w (d U v1 aJ 0 a u a, k a .rl I+ *d u C 3 0 u 2 0 F 0 4 d z 3 0 0 @TY OF CARLSBAD - AW DA BILL RECOMMENDED ACTION: Review and conceptually approve proposed agreement. ITEM EXPLANATION: Attached to this agenda bill is a copy of the latest draft of the proposed agreeme’ agreement provides that Coast Waste Management will supply transfer, transpc: and disposal services to the North County Solid Waste Management Authoriifor I of five years. At the end of two years, the agency or one of its members may ini RFP process to solicit proposals from other entities to provide transfer, transpc and disposal services, effective at the end of the third year of this agreement. Waste Management will have an opportunity to match any proposal that is receivc purpose of this provision is to allow the City of Escondido to possibly utilize a facility that its hauler, Escondido Disposal, Inc., is considering constructing in Esc The agreement between the North County Solid Waste Management Agency ar Waste Management provides incentives for Coast Waste Management to ui evolving disposal marketplace to obtain the most cost effective disposal ri mechanism has been developed in the agreement to establish a reference rate any savings below the reference rate fee will be split between the agency an Waste Management. As provided in the agreement, this reference rate fee reviewed periodically and the reference rate fee revised accordingly if there are si changes in cost. Through this mechanism, it is felt that both Coast Waste Man; and rate payers will benefit through the use of lower cost disposal optior mechanism is designed to be a transitional mechanism until long-term disposal t are negotiated and disposal costs are stabilized. The agreement contemplates that Coast Waste Management will provide transfei through the Palomar Transfer Station. If the Palomar Transfer Station I unavailable, the agreement provides for the use of an alternate site provided Waste Management. The City of Carlsbad is currently pursuing appraisal on the Transfer Station and would like to purchase or obtain a long-term lease on the ensure stable and reliable long-term transfer and disposal services. The North County Solid Waste Management Agency is scheduled to meet at 1 Thursday, October 27,1994. A copy of the agency’s agenda is attached. At thz the agency may adopt the attached agreement in its final form. Once the agrl will be using the Palomar Transfer Station up to its permitted capacity. Curre Carlsbad’s solid waste is being transferred through the facility, but the availablc at the Palomar Transfer Station will need to be prorated between the two citic approved by the agency, it is anticipated that both the Cities of Escondido and I e e b PAGE 2 OF AGENDA BILL NO. /2,, 92 0 to provide a proportionate benefit to the rate payers of each city. If is anUic once Coast Waste Management and the North County Solid Waste Managemc sign this agreement, Coast Waste will initiate amendments to the CUP and permit on the Palomar Transfer Station in order to increase its permitted ( handle the solid waste of members of the North County Solid Waste Mi Agency. EXHIBITS: 1. Draft Solid Waste Disposal Contract Between the North County S Management Authorii and Coast Waste Management, Inc., dated 1994. North County Solid Waste Management Authority Agenda, dated C 1994. 2. r EXH I 0- 0 '. b DRAF TABLE OF CONTENTS r, \ I. I Section I. DEFINITIONS .............................................. Section 2. DESCRIPTION OF SERVICES PROVIDED ......................... 2.1 Transfer Station Permits ....................................... 2.2 Activation of Service .......................................... 2.2.1 Notice To Commence Service .............................. 2.2.2 Commencement of Service ................................ 2.3 Parties' Obliqations .......................................... 2.3.1 Aqencv Resoonsibilities ................................... 2.3.2 Coast Resoonsibilities .................................... Section 3. PAYMENT, RATES AND RESERVE .............................. 3.1 Pavment .................................................. 3.2 Reserve Fund ............................................... 3.3 Disposal Rate Fee ........................................... 3.4 Reference Rate Fee .......................................... 3.5 Reserve Fund .............................................. 3.5.1 Purpose.. ........................................... 3.5.2 Deoosits to Reserve Fund ................................ 3.5.3 Division of Reserve Fund ................................ 3.5.4 Revision of Reference Rate ............................... 3.5.5 Mediation ............................................ 3.5.6 Final Distribution of Reserve Fund .......................... Section 4. TIMING OF PAYMENT. ....................................... Section 5. RESPONSIBILITIES FOR COST INCREASE AND CHANGES IN LAW .... Section 6. TERM ................................................... Section 7. AGENCY REPRESENTATIONS AND WARRANTIES ................. . 7.1 Orqanization and Qualification .................................. 7.2 Autharitv ................................................. 7.3 Government Authorizations and Consents ......................... 7.4 Comoliance with Laws ....................................... 7.5 Ability of Aaencv to Direct Waste Flow ............................ 7.6 Accuracy of Information ...................................... 7.7 Independent Examinations .................................... Section 8. COAST REPRESENTATIONS AND WARRANTIES .................. 8.1 Orqanization and Qualification .................................. 8.2 Authority ................................................. 8.3 Government Authorizations and Consents ......................... 8.4 Compliance With Laws ....................................... 8.5 Accuracy of Infomation ...................................... 8.6 I ndeoendent Examination ...................................... 8.7 Coast's Performance. ........................................ Section 9. Disposal Facility ........................................... Section IO. EXCLUSIVITY ............................................. I e- 0 Section 11. UNACCEPTABLE WASTE ...................................... Section 12. TITLE TO ACCEPTABLE WASTE AND UNACCEPTABLE WASTE ........ 12.1 Acceptable Waste ............................................ 12.2 Unacceptable Waste ........................................... Section 14. FORCE MAJEURE.. .......................................... Section 15. SERVICE IN THE EVENT OF NON-FORCE MAJEURE CONDlTlONS ....... Section 16. INSURING UNINTERRUPTED SERVICE ............................ Section 17. LITIGATION REGARDING THE VALIDITY OF THIS AGREEMENT ........ Section 18. INDEMNITY. ....................................... ~. ...... Section 19. INSURANCE ....................................... : ....... 19.1 Limits of Insurance .................... , . , . , . , . , D , . , A . I , . I ... 19.2 Deductibles and Self-insurance Retentions ........................... 19.3 Other Insurance Provisions ..................................... 19.3.1 General Liabilitv and Automobile Liabilitv Coveraae ............... 19.3.2 Workers Compensation and Emplovers Liabilitv Coveraae ......... 19.3.3 All Coveraae .................................. .;. ...... ....................................... 19.4 Acceptabilitv of Insurers 19.5 Verification of Coveraae _. 19.6 Subcontractors .............................................. 19.7 Reauired Endorsements ....................................... 19.8 Deliverv of Proof of Coveraae ................................... 19.9 Other Insurance Reauirements .................................. Section 20. FAITHFUL PERFORMANCE BOND ........................ RELATIONSHIP OF THE PARTIES ......................... PARTIES AND INTERESTlNO THIRD PARTIES BENEFICIARIES . . , ........ .............................. Section 21. Section 22. Section 23. EQUAL OPPORTUNITY/NON-DISCRIMINATION .............. Section 24. ASSIGNMENT ....................................... Section 25. RECORDS.. ........................................... .. Section 26. APPLICABLE LAW ......................................... Section 27. DISPUTE RESOLUTION. ..................................... Section 28. EVENTS OF DEFAULT ...................................... Section 29. BINDING ON SUCCESSORS .................................. Section 30. TRANSITION TO NEXT CONTRACTOR ......................... Section 31, WAIVER , , , , , , , , , .. , . , , . , , .............................. Section 32. CONTRACTOR’S INVESTIGATION ............................. Section 33. CONDEMNATION .......................................... Section 34. REPRESENTATIVE OF THE PARTIES .......................... .. -0 0 Section 35. AGENCY FREE TO NEGOTIATE WITH THIRD PARTIES ................ Section 36. SEVERABILITY .............................................. Section 37. CONTRACT RIGHTS Section 38. APPROVALS ............................................... Section 39. ENTIRE AGREEMENT Section 40. CAPTIONS Section 41. NOTICES I. ......................................... ........................................ ................................................ ................................................. e a SOLID WASTE DISPOSAL CONTRACT BETWEEN JOINT POWERS AUTHORITY AND COAST WASTE MANAGEMENT, INC. I. THIS AGREEMENT is made and entered into this day of 1994, by and between NORTH COUNTY SOLID WASTE MANAGEMENT AUTHO a joint powers authority ("Agency") and COAST WASTE MANAGEMENT, INC. (IT 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 curren waste disposal facilities owned and operated by the County of San Diego. B. The County has entered into long-term agreements which may rt The Agency is desirous of having an alternative waste disposal optioi current County system. The Agency, and Coast agree to enter into this Agreement to memorid agreement concerning the transportation and disposal of the Agency's Acceptable 7 defined herein. uncompetitive Disposal Facility fees. C. D. E. Coast leases property in Carlsbad, California from the County and C received permits from various state and local entities for the operation of a commerc transfer station located in Carlsbad, California ( "Palomar Transfer Station"). F. Coast owns property in San Marcos, California and is in the process of a1 to obtain all necessary permits from various state and local entities for the opera' commercial waste transfer station ("San Marcos Transfer Station"). G. Coast h@ agreed to transport or arrange for the transportation of the Acceptabie Waste from the Transfer Station, as defmed herein, in Carlsbad, California or rail for transport to and disposal at a Disposal Facility. H. The primary motivation of the Agency in entering into this Agreement ~ safe, reliable, cost-effective disposal. I. The Agency has been assured and through investigation has determini practices utilized by Coast will allow the Asency to have confidence in both the reli safety of the disposal by Coast. NOW, THEREFORE, in consideration of the promises, covenants and i herein contained, the Parties agree as follows: 0 'e n. Section 1. DEFINITIONS. The terms used in this Agreement shall have the following meanings: 1.1 "Acceptable Waste" means residential and nonresidential solid waste as 6 by appropriate California codes generated within the boundaries of the Agency's membe that is not Unacceptable Waste. Nothing in this Agreement shall impede the Agency's ~ maximizing recycling and meeting AB 939. "Waste" does not include recyclables unless 1 the waste stream as waste. "Applicable Law" means those federal, state and local' laws, ordi regulations, permits and rules in effect, valid and applicable to the performance Agreement, including those relating to the disposal of and description of Acceptable 3 "Change in Law" means any new or revised law, statute, rule, regula1 ordinance enacted or amended by a federal, state, or local governmental entity or affecting or directed to the disposal or transportation of solid waste, but not affecting or to businesses in general, which becomes effective after the effective date of this Agr Examples of "Changes in Law" include, but are not limited to, Changes in the host applicable taxes payable by the Disposal Facility or other charges in Applicable L change Coast's cost of performance of this Agreement, or the cost of performance subcontractors, employees, or agents. Any change in law resulting in increased costs passed onto the Agency. 1.2 1.3 1.4 "Commencement Date" means the date the Agency first tenders Acceptak to Coast for transportation to and disposal at the Disposal Facility. 1.5 "Construction/Demolition Waste" means- Acceptable Waste consisting 01 materials, packaging, and rubble resulting from construction, remodeling, repair, and dl operations on pavements, houses, buildings, and other structures. 1.6 "County System" means Disposal Facilities within San Diego Counl and/or operated by the County of San Diego's Public Works Department andor b. Diego Solid Waste Management Authority (collectively "County") andor any Disposr the County has contracted with to receive waste. 1.8 "Disposal Rate Fee" means the fee charged by the Transfer Station to t for allowing the acceptable waste- to be left at the Transfer Station for hauling to th Facility for fiil disposal. This fee is charged on a per tan basis and is Compo components set forth in Section 3. Coast-JPA Agreement 2 e m C. 1.9 "Force Majeure" means the parties shall be excused from performk respective obligations hereunder in the event they are prevented from so performing by of floods, earthquakes, other "acts of God", war, civil insurrection, riots, railroad stri act by a governmental or regulatory body, and other similar catastrophic events wl beyond the control of and not the fault of the party claiming excuse from perfc hereunder. Notwithstanding the foregoing, labor unrest, including but not limited tc work stoppage or slowdown, sickout, picketing, or other concerted job action condi Coast's employees or directed at Coast is not an excuse from performance and Coast provided, that in the case of labor unrest or job action directed at a third party over who has no control, the inability of Coast to provide services due to the unwillingness or 6 a third party to provide reasonable assurance of the safety of Coast's employees while p services or to make reasonable accommodations with respect to operating circumst minimize any confrontation with pickets or the number of persons necessary to ser Agreement shall, to that limited extent, excuse performance and provided further foregoing excuse shall be conditioned on Coast's cooperation in providing services at times and in different locations. obligated to continue to provide service notwithstanding the occurrence of any or all sucl The party claiming excuse from performance shall, within two (2) days after SI has notice of such case, give the other party notice of the facts constituting such c asserting its claim to excuse under this Section. Notwithstanding, Coast in the et catastrophic event shall comply with Agency members' Emergency Preparedness Plan event that either party exercises its rights under this Section, the parties hereby waive a against each other for any damages sustained thereby. The partial or complete interruption or discontinuance of performance by a~ caused by one or more of the events described in this Section shall not constitute a c that person under this Agreement. Notwithstanding the foregoing, if a party is excl performing its obligations hereunder for any of the causes listed in this Section for a thirty (30) days or more, other than as the results of a third party labor dispute or cannot be provided for reasons described earlier in this Section, the party shall neverthc the right, in its sole discretion, to terminate this Agreement by giving ten (10) days 1 "Host States Codes and Statutes" means the state wherein the Dispos, 1.10 is located. Codes and Statutes means the statutes and codes of that state. 1.12 "Local Collector" means the franchised waste collector who collects ti homes or other locations and hauls it to the transfer station or facility. 1.13 "Notice to Commence Service" means that time when the Agency no1 in writing that the Agency desires to commence service. The notice shall give hundred and twenty (120) days to begin service if all conditions precedent are met Coast-JPA Agreement 3 0 0 give an estimate of the fxst years projected tonnage. Coast may commence service ai prior to the one hundred and twenty (120) days and Coast shall give the Agency thuty (3 notice before Commencement. 1.14 ''Reference Rate Fee" means the target fee agreed upon between the Agec Coast. The Reference Rate Fee may be higher or lower than the disposal rate fee and is actual fee charged but rather the target which the Agency and Coast believe would most represent the Disposal Rate Fee with an upward adjustment to create an allowance for a fund in order to avoid fluctuation in the rates charged to the residences and businesse: member cities. 1.15 "Reserve Fund" means that fund which is to be kept by the Agency wh consist of the difference between the Reference Rate Fee and the Disposal Rate Fee v Disposal Rate Fee is less than the Reference Rate Fee and after deduction by the * Station of an earned incentive by Coast of twenty-five percent (25%) or the difference l the Reference Rate Fee and Disposal Rate Fee when the Disposal Rate Fee is less 1 Reference Rate Fee. 1.16 "Transfer Station" andlor "Facility" means a place where authorized Wi be transferred from a waste collection vehicle to a waste hauling vehicle. Such a transfc is located in Carlsbad, California and shall be known as the Palomar Transfer Station Waste Management, Inc. Transfer Station, and if in San Marcos, it shall be known as Marcos Transfer Station. 1.17 "Transporters" means trucks used to move waste from the transfer stati Disposal Facility and/or railhead. 1.18 "Unacceptable Waste" means all solid waste not authorized for dispoi Disposal Facility by applicable federal, state, or local statute, regulation, or ordinan the Disposal Facility's Permits defined herein. Unacceptable Waste includes, but is not limited to: 1.18.1 "hazardous waste" as defined in Host States Codes an and the regulations promulgated thereunder and the a] California codes, as they may be amended and expanded to time. any material that is now or hereafter defmed by applicat state or local law, regulation, or ordinance as radioact hazardous .or extremely hazardous waste, excluding hazardous waste and small quantity generator hazardous exist after approved waste screening at the poind of tra 1.18.2 Coast-JPA Agreement 4 0 0 .._ ,. 1.18.3 vehicle tires in excess of the amount of such tires permittec or ordinance; disposed of by applicable federal, state, os local law, rep 1.18.4 lead acid batteries; 1.18.5 soils contaminated with hazardous, radioactive, or toxic wa hazardous or toxic substances as such terms are defi applicable federal or state law or regulation; 1.18.6 asbestos, including the asbestifom varieties of serp (chrystolie), riebeckite (crocidolite), cummingtonite-gr anthophylite and actinolite-termolite; any material which contains asbestos ("ACM"), including waste from control devices, contaminated clothing, asbest( material, materials used to enclose the work area du asbestos project, or bags or containers that previously CI asbestos; and any material whatsoever that the Permits or any federal, local law, regulation, order, or ordinance may prohibit the of at the Disposal Facility now or in the future. 1.18.7 1.18.8 Section 2. DESCRIPTION OF SERVICES PROVIDED. 2.1 Transfer Station Permits Coast presently occupies the Palomar Transfer Station. The facility is the sit as Coast's initial and primary site for transferring of waste materiais for the North Waste Management A~thority(~'NCSwMA"). Materials are collected and screened by collectors then delivered to the Coast site where materials are again screened tc unacceptable waste prior to delivery to the Disposal Facility. The primary site is leased month-to-month from the County of San Diego. If is terminated, Coast, with the assistance of the Agency, will attempt to c of the Palomar Transfer Station, or in the alternative, will attempt to open Mwm+site. permitted, it can replace the Palomar : Coast-JPA Agreement 5 e 0 I. If Coast loses its right to transfer at the Palomar Station and has not obtaine to transfer at site, the parties agree as follows: default by Coast, 2.2 Activation of Service 2.2.1 Notice To Commence Service. The Agency may, in its sole disc anytime prior to September 15, 1996, give notice to Coast to commence the service herein. That notice shall give Coast the Agency’s best estimate of the annual ton delivered to Coast who will order, equipment based upon that The Agency will work together to formulate first year tOIlMge prOjeCti0 p A materi variation (of more than 20%) of the estimate compared with the actual tonnage A result in additional charges to the Agency. ’ The service shaii commence one hundred and twenty (120) days aftei notice by Coast unless Coast has failed to obtain all required regulatory approvals in 1 any party to this Agreement can elect to terminate this Agreement. The payment to Coast will be referred to as the “Incentive Payrm anticipated annual tonnage shall be 200,000 tons per year until the parties agree to number based on experience. 2.2.2 Commencement of Service. Upon commencement of service, 1 shall direct, to the extent legally permissible, that all of the Acceptable Wastc boundaries of the Agency’s then member cities be delivered to the Palomar Transfei any Other accepted transfer station agreed to by the Parties. In addition, the Agency and require that Coast transfer acceptable waste which the Agency has conti nonmembers for disposal. 2.3 Parties’ Oblieations . Subject to the tern and conditions of this Agreement, the Agency and have the following additional responsibilities: 2.3.1 Agencv Resuonsibilities. 2.3.1.1 The Agency shall be responsible for budgeti appropriation of the funds required for its participation in this Agreement. 2.3.1.2 Subject to the provisions of Section2.2.2 above, shall tender all Required Waste for transfer at the Tm~fer Facility during the te Agreement. The Agency may also tender other Acceptable Waste for transfer at its Coast-JPA Agreement 6 * 0 0 2.3.1.3 The Agency may comply with its obligations ur Agreement by use of agents, subcontractors, or other designees at the Agency's discre The Agency shall ensure that each of its member anyone the Agency requests that we provide services to pursuant to Section 2.2.2 imi the following with respect to waste screening measures before waste is delivered to tl Collector in any of the Agency's member city's areas as its commitment to pr unacceptable waste being tendered. 2.3.1.4 2.3.1.4.1 If not already in place, Agency shall require of its member cities adopts a comprehensive waste screening ordinance requiri residential, commercial, industrial, or other waste generator utilizing local waste c services to screen his, her, or its waste to prevent the transmission of "unacceptable v the Local Collector. Such local ordinance shall also specify that the ownershir responsibility for the waste rests with the person or entity placing it for pick up by t Collector until such time as the Local Collector picks up the waste. 2.3.1.4.2 Agency shall provide copies of all such 01 to Coast upon their adoption, and shall give Coast at least sixty (60) days prior no respect to any proposed amendment or repeal of such ordinance regarding provisions by this Agreement. 2.3.1 .La. 3 Agency shall ensure that all residential, con industrial, and other waste generators using local collection services whose wastf transmitted to Coast pursuant to this Agreement receive an information packet, in explaining how to screen waste to ensure that no unacceptable waste is set out for p the Local Collector. Agency shall consuit with Coast from he to time, at Coast's rec shall mail or deliver to all users of the local collection system such updated informati0 and the like as Coast shall reasonably require to achieve the screening objective Agreement, provided that the Local Collector will be responsible for the cost of prod1 mailing such materials. 2.3.2 Coast Remonsibilities. 2.3.2.1 Coast shall be responsible for loading Accepta from the Transfer Facility/Loading ramp into the Transfer Trucks or containerdrailca or its designee shall supply, operate, maintain, repair and replace the trucks and tm necessary to transport all of the Agency's Acceptabie Waste from the Transfer Stat Disposal Facility. Coast or its designee will also provide the truck crews necl operation of the trucks. Coast shall comply fully with all applicable fed and local laws, regulations and ordinances dealing with the transfer of nonhazardous sc Coast shall remedy violation of such law promptly and at its own expense. 2.3.2.2 Coast-JPA Agreement 7 0 0 2.3.2.3 Coast shall bear responsibility for all costs and er associated with the clean up of spillage of Acceptable Waste at the Transfer Facility or in to the Disposal Facility. 2.3.2.4 Coast shall provide for the transfer of Acceptable delivered from the Agency. Specifically, Coast shall operate the Transfer Facility in accr with the Permits and the Applicable Laws. Coast shall supply all equipment and labor ne for the operation of the Transfer Facility and hauling to the Disposal Facility. 2.3.2.5 Coast shall operate, if requested by the Agency, ar household hazardous waste collection program for each of the Agency's cities (Le thrr that currently comprise the Agency, or a number of events as mutually agreed upon b and the Agency), These events will provide residents the opportunity to drive-up to mot and dispose of household hazardous wastes. 2.3.2.6 Coast may comply with its obligations under this Ag by use of agents, subcontractors, or other designees of Coast's. Coast shall, prior to th other agents or subcontractors or other designees, obtain the permission of Agency w not unreasonably withhold that permission. The parties contemplate and agree that Cc use miscellaneous transporters to transfer waste from the Transfer Station to the j Facility and that Coast shall not need the Agency's permission to change such subcoi from time to time without the Agency's approval so long as Coast requires the subcoi to comply with the provisions of this Agreement and to be adequately insured in accorda this Agreement. Section 3. PAYMENT, RATES AND RESERVE. 3.1 Payment. The payment set forth in this Section 3 shalI include associated with the following: 3.1.1 The transferring at the Transfer Station of acceptable wi the Local Collector to the Transporter. 3.1.2 The fee charged by the Transporter. 3. I .3 All fees charged by the Disposal Facility for the final di the waste - ' a known as the dumping or tipping fee. 3.1.4 A household hazardous waste program to be agreed up01 the parties. 3.1.5 All Local Enforcement Agency ("L.E.A.") charges, if : Reserve Fund. Once the Agency has initiated service pursuant 2.2, the Agency will pay to Coast the Disposal Rate Fee set forth below. If the Disl Coast-JPA Agreement 3.2 8 0 0 Fee is less than the Reference Rate Fee, the Agency shall pay to Coast twenty-five 1 (25 %) of the difference between the Disposal Rate Fee and the Reference Rate Fee, and ( seventy-five percent (75%) of the difference between the Reference Rate Fee and the D Rate Fee in a reserve fund to be administered by the Agency and subsequently shared forth below in this Section 3. 3.3 Disuosal Rate Fee. The Disposal Rate Fee shall be the sum following: 3.3.1 A Transfer Station charge of Seven Dollars and Foq Cents ($7.43). 3.3.2 A Transporter hauling charge to be determined as 1 3.3.2.1 Coast shall cause independent Transporters competitive bids and shall award the contract to the lowest bidder they determ satisfactorily do the job. The charge by Coast shall be their actual cost plus five perce if an independent Transporter is used; OR 3.3.2.2 Coast may act as the Transporter. The cl[ Coast shall be their actual cost plus nine percent (9%) if Coast acts as the Transporter event shall Coast’s charges exceed the lowest satisfactory bidder. 3.3.3 All Disposal Facility fees which shall be the fee Coast to the Disposal Facility as a dumping or tipping fee. 3.3.4 Coast shall conduct household hazardous waste prog requested by the Agency and as agreed on by Coast. The charge shall be agreed on and the Agency for each event. h 4w.k 3.4 Reference Rate Fee. The initial Reference Rate Fee shall be dollars ($55.00) per ton. The Reference Rate Fee shall be adjusted at the times ai manner set forth below. 3-5 Reserve Fund. 3.5.1 Pumose. The purpose of the Reserve Fund is to avoid f rates being charged to the residences and businesses of the member cities. For exam1 event that the Disposal Rate Fee were to be higher than the Reference Rate Fee, the 1 would be made up from monies in the Reserve Fund, rather than asking for a rate incn the Reserve Fund falls below the amount set forth in Section 3.4.4. In addition to th Fund is a fund created to encourage Coast and the Agency to fmd the lowest dispo environmentally sound disposal of the Agency’s acceptable waste. ’ CoastJPA Agreement 9 e 0 3.5.2 Deuosits to Reserve Fund. Deposits shall be made to the 1 Fund by the Agency every month equal to seventy-five percent (75%) of the difference E the Reference Rate Fee and the Disposal Rate Fee when and if the Reference Rate Fee i$ than the Disposal Rate Fee. 3.5.3 Division of Reserve Fund. 3.5.3.1 Incentive Pavment. Coast, to encourage it the difference between the Reference Rate Fee and the Disposal Rate Fee when the Rt Rate Fee is higher than the Disposal Rate Fee. the lowest Disposal Rate Fee, shall be paid, as an additional fee, twenty-five percent 6 3.5.3.2 Reserve Fund Withdrawals. The Reserve shall be used to pay for the following: 3.5.3.2.1 Any disposal fee that exceeds the Rc 3.5.3.2.2 Miscellaneous costs to the Agency. 3.5.3.2.3 Miscellaneous non-anticipated costs Rate. as shall be agreed to by the Agency. 3.5.3.2.4 Payments to Coast for household h; waste pursuant to Section 3.2.4. 3.5.3.3 Distribution of Excess Reserve Balance. Tkt shall attempt to prevent the Reserve Fund from falling below a sum equal to two and percent (2 1/2 %) of the Reference Rate times the anticipated annual tonnage (sometimes to as the "Minimum Reserve Balance"). No distributions from the Reserve Fund, exce the Disposal Rate Fee and the household hazardous waste fee, shall be made unless the I Reserve Balance is present in the Reserve Fund. The Reserve Balance in excess of the I Reserve Balance shall be distributed on the first to occur of the following: 3.5.3.3.1 When the Reserve Balance is equ percent (10%) of the Reference Rate times the anticipated annual tonnage. 3.5.3.3.2 At the end of the twelfth (12th) mc the commencement of service pursuant to Section 2.2. 3.5.3.4 Division of Excess Reserve Balance. TI Reserve Fund Balance is that sum in the Reserve Fund in excess of the minimum Rest Balance. The excess Reserve Balance shall be distributed on the occurrence of eitl events set out in Section 3.4.3.3.1 or 3.4.3.3.2 , Two-thirds (2/3) of the Reserve Bala be paid to the Agency and one-third (1/3) shall be paid to Coast. Coast-JPA Agreement 10 0 0 5 5 3.5.4 Revision of Reference Rate. On the Occurrence of 34.1 3.4.3.3.2 above, the Agency and Coast shall promptly meet, confer and attempt in go to agree on a new Reference Rate to reflect the then existing average market rate for similar to those to be provided by Coast under this Agreement. If the Reserve Fund sha time, after the Minimum Reserve Balance has been attained, fall below one percent (1 % Reference Rate times the anticipated annual tonnage, the parties shall also meet; cor attempt in good faith to agree upon a revised Reference Rate. 3.5.5 Mediation. If Coast and the Agency are unable to agi revised Reference Rate, then they shall proceed to dispute resolution pursuant to Sec "Dispute Resolution," of this Agreement and if an agreement is not reached after medial Agreement shall terminate and Coast shall be entitled to the benefits of Section 3 Termination. " 3.5.6 Final Distribution of Reserve Fund. When this co concluded or termhated pursuant to its provisions or by any other reason, the parties shi the final reserve balance with 113 of the fund going to Coast and 2/3 of the fund goi Agency. Section 4. TIMING OF PAYMENT. On or before the tenth (10th) day of each month, Coast shall submit to the A invoice itemizing the payments due to Coast based upon the total number of tons ship1 Disposal Facility and disposed of under this Agreement during the preceding month Disposal Rate Fee per ton. Amounts incurred by Coast for handlhg Unacceptable % be billed separately or in the monthly billing. The Agency shall make payment to Co total amount due Coast within twenty (20) days following receipt of the invoice, or t the month, whichever is first. Section 5. 5.1 RESPONSIBILITIES FOR COST INCREASE AND CHANGES IF All benefits and all added costs, including wage increases, resulting fro1 in technology, labor practices, availability of equipment and other business risks, t 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 enjoj party incurring the cost or receiving the benefit and shall not be added to or subtractec amounts to be paid by the Agency pursuant to this Agreement. The Agency shal hundred percent (100%) of any additional costs incurred by Coast resulting from a 1 Law or the imposition of host fees, and such additional costs shall be added to and in( in the amounts to be paid 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 descripti 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 Coast-JPA Agreement 11 0 0 right to terminate this Agreement. Coast will be required to provide service on an interic for up to sixty (60) days, if requested by the Agency, after termination is given pursuant Section. Prior to termination, the Agency shall give notice to Coast of its intent to ten Coast and the Agency then agree to enter into formal mediation and termination is effecti upon the conclusion of such mediation. Coast shall provide transition services in the e termination. However, the Agency shall pay the higher cost pending the actual transiti new Transfer Station operator. 5.3 In the event of an increase in cost, which increases pass onto the Agen Agency may, in its sole discretion, terminate this Agreement 5.4 Notwithstanding anything in this Agreement, in no event does the Agenc to be responsible for any closure post-closure, clean-up or other costs at the Disposal E Section 6. TERM. This Agreement shall become effective on the date first written above, and shall in effect thereafter for a term of five (5) years from the Commencement Date, as defined The contract term will be for forty (40) years and shall commence after notice to initiatx and when Coast receives its first load of waste. The contract may be terminated on i months written notice from the Agency to Coast which notice must be given at leas months prior to each five (5) year anniversary date or term. Coast and the Agency wi and the Agency will determine the best method to transfer and if Coast is competir Agency shall use Coast as the Transporter and Disposal Facility locator. The Agency s€ the final right to determine if Coast is competitive. Section 7. AGENCY REPRESENTATIONS AND WARRANTIES. For the purpose of inducing Coast to enter into this Agreement, the Agency n and warrants to Coast as follows: 7.1 Organization and Qualification. The Agency is a regional solid waste of the State of California and has all requisite corporate power and authority to enter perform its obligations under this Agreement. 7.2 Authority. 7.2.1 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. 7.2.2 Neither the execution of this Agreement nor its performance by tl. will conflict with or result in the breach of any instrument, restriction, covenant, agI Coast-JPA Agreement 12 0 0 other undertaking to which the Agency is a party or by which the Agency is bound, ar not violate or conflict with any rules, regulations or ordinances of the Agency. 7.2.3 This Agreement has been executed by all the officers of the Agency execution is required, and this Agreement is a valid and binding obligation of the enforceable in accordance with its terms and conditions, except as enforcement may be by bankruptcy, insolvency, reorganization, moratorium, or other laws relating to or creditors’ rights generally. 7.3 Government Authorizations and Consents. The Agency has such licenses, and other authorizations from federal, state and other governmental authorities, as are nt for the performance of its obligations under this Agreement, and no consent, appr authorization of or declaration, registration or filing with any governmental or regulatc is required to be obtained or made by the Agency as a prerequisite to its executior Agreement, or its performance of its obligations contemplated hereby. 7.4 Cornuliance with Laws. The Agency has received no notice that it is in 1 of any applicable law, ordinance or regulation, the consequences of which will or may m affect the Agency’s ability to perform its obligations under this Agreement. The Agenc subject to any order or judgment of any court, tribunal or governmental agency, and it of no litigation or threat of litigation which does or would materially and adversely operations or its ability to perform its obligations under this Agreement. 7.5 Abilitv of Agency to Direct Waste Flow. The Agency, so long as it i permissible, shall use its best efforts to direct the flow of all waste, for which it has ca control, to Coast . The Agency will request from its member cities that they ma authority to direct the waste to a particular transfer station andlor, disposal site in con with this Agreement. The Agency shall also provide Coast with copies of its individua cities’ haulers franchise agreements to the extent that they are public records, or if r records, with the written consent of the contracting parties. ColleCtIOn contaacts/franchises, as they become due, to enable the Agency to maintain 7.6 Accuracv of Information. None of the representations or warrantic Agreement, and none of the documents, statements, certificates or schedules furnishec furnished by the Agency pursuant hereto or in connection with the Agency’s performa obligations contempIated under this Agreement, contains or will contain any untrue of a material fact. 7.7 Indeuendent Examinations. In accepting these responsibilities, th represents and affirms that it has made its own examination of all conditions, faci properties affecting the Agency’s performance of this Agreement and of the quantity a of labor, equipment, material needed and of applicable taxes, permits and Iaws. Section 8. COAST REPRESENTATIONS AND WARRANTIES.’ Coast-JPA Agreement 13 0 0 For the purpose of inducing the Agency to enter into this Agreement, Coast rep and warrants to the Agency as follows: 8.1 Oreanhation and Oualification. Coast is duly incorporated, validly exist in good standing under the laws of the State of California, and has all requisite corporate and authority to enter into and perform its obligations under this Agreement. 8.2 Authority. 8.2.1 Coast has the authority to execute this Agreement, to m representations and warranties set forth in it, and to perform the obligations of Coast UI Agreement in accordance with its terms. 8.2.2 Neither the execution of this Agreement nor its performance by Cc conflict with or result in the breach of any instrument, restriction, covenant, agreement undertaking to which Coast is a party or by which Coast is bound, and does not v‘ conflict with the Articles of Incorporation, or other charter documents or By-Laws of 8.2.3 This Agreement has been executed by all the officers of Coa! execution is required, and this Agreement is a valid and binding obligation of Coast enf in accordance with its terms and conditions, except enforcement may be limited by ban insolvent, reorganization, moratorium, or other laws relating to limiting creditor: generaily . 8.3 Government Authorizations and Consents. Coast has or will endeavor, 1: good faith and efforts, to obtain prior to the commencement date of this Agreem licenses, permits and other authorizations from federal, state and other governmental au as are necessary for the performance of its obligations under this Agreement, and consent, approval or authorization of or declaration, registration or fdhg with any gove or regulatory body is required to be obtained or made by Coast as a prerequisite to its of this Agreement or its performance of its obligations contemplated hereby. -Failure 1 such permits shall terminate the Agency’s and Coast’s duties pursuant to this Agreen Comuliance With Laws. Coast has received no notice that it is in violat applicable law, ordinance or regulation, the consequence of which will or may materil Coast’s ability to perform its obligations under this Agreement. Coast is not subject to or judgment of any court, tribunal or governmental agency, and it is aware of no lil a threat of litigation which does or would materially and adversely affect its operation in the state Of California, or its ability to perform its obligations under this Agreem 8.5 Accuracv of Information. None of the representations or warrant Agreement, and none of the documents, statements, certificates or schedules furnishe furnished by Coast pursuant hereto or in connection with the performance of the ( contemplated under this Agreement, contains or will contain any untrue statement of fact. 8.4 Coast-JPA Agreement n4 0 0 8.6 Indeuendent Examination. In accepting these responsibilities, Coast rep and affirms that it has made its own examination of all conditions, facilities and prc affecting Coast’s performake of this Agreement and of the quantity and expense of equipment, material needed, and of applicable taxes, permits, and laws. 8.7 . Coast’s Performance. Coast represents and warrants that it is financia otherwise ready, able and willing to perform all of its obligations under this Agreeme promises to do so. Section 9. Disposal Facilitv. No Disposal Facility shall be used by Coast without the consent of the Agency event that Coast advises the Agency of its intention to use a particular Disposal Facility Agency has not objected to the use of that Disposal Facility within ten (10) days after C faxed its notification of intended use of a particular Disposal Facility to the Agency, Agency shall be deemed to have given its permission to use that Disposal Facility. BO and the Agency recognize that the choice of a Disposal Facility could have potential economic consequences to them. Section IO. EXCLUSIVITY. 10.1 The Agency, in the event that it commences service under this contra require that all of the acceptable waste of its members of in accordance with this Agreement. The Agency sh facility, whether commercial or noncommercial, for the transfer, transportation, and of the Agency’s waste during the term of this Agreement after notice of commencement given and subject to Agency’s termination rights under this Agreement . 10.2 The Agency also agrees that it will, during the term of this Agreeme: things necessary for the proper maintenance and operation of its solid waste collectia and that it will use its best efforts to require that all Waste be collected by the Agenc waste collection service and delivered to the Transfer Station for transportation to anc at the p. .. Section 11. UNACCEPTABLE WASTE. Pursuant to Applicable federal regulations that become effective October 9, 15 is responsible to maintain and perform procedures to detect and prevent the disposal oi hazardous waste, as defined in 40 C.F.R. Part 261; and polychlorinated biphenyls (” defined in 40 C.F.R. Part 761. Prior to and after the effective date of these regulati reserves the right to conduct, at its sole cost and expense, random inspections of incoi Coast-JPA Agreement 15 0 0 - I from the Agency to ensure that it does not contain regulated hazardous wastes, PCBs, o Unacceptable Waste. The timing and frequency of such random inspections shall be at tl discretion of Coast, subject to its responsibility to comply with the federal regulations. fi in this paragraph shall relieve the Agency of its obligations to implement a waste SCI program as required by Section 2. If Unacceptable Waste is tendered to Coast and is discovered prior to disposal Disposal Facility, Coast immediately, or as soon as possible, shall return the UMCC Waste to the Local Collector or to the party placing the waste for collection for proper h( and disposal, unless the Agency or the Local Collector and Coast agree to different tei handling and disposing of such Unacceptable Waste. If, notwithstanding the Agency’s and Coast’s screening efforts, Unacceptable V disposed of and discovered at the Disposal Facility, Coast shall require the Disposal Fa immediately upon discovery, or as soon thereafter as is reasonably possible. Coast st the resporisibility, financial and otherwise, for dealing with such unacceptable waste, E that Agency is not in default of its screening obligation as set forth in Section 2. Section 12. TITLE TO ACCEPTABLE WASTE AND UNACCEPTABLE WAS The resident or business owner owns all acceptab put out for collection until it is picked up by the local collector who will own it until SI as he delivers it to the Transfer Station, at which time it will be owned by the Transfei operator. notify Coast and the Agency by telephone or telefax or other available means of such 1 12.1 Acceutable Waste. 12.2 Unacceotable Waste. 12.2.1 The resident or business owner owns and is responsible for put out for collection and has the responsibility to screen and not set out unacceptable The Local Collector has the responsibility to screen and 12.2.2 up unacceptable trash. 12.2.3 The Transfer Station operator has the responsibility to s( not accept unacceptable trash. 12.2.4 The Disposal Facility operators have the responsibility to s not accept unacceptable trash. If unacceptable waste is collected , it is the responsibility of the party I to comply with the above. Section 13. HOUSEHOLD HAZARDOUS WASTE. Coast-JPA Agreement 16 - e e - * The Agency and Coast shall, in a joint planning conference, determine ( responsibilities for the collection of household hazardous waste. Such meeting shall be h less than annually 13.1 The Agency shall do the following: 13,l.l 13.1.2 Determine the criteria for nonmember residents use of the Cause each hosting city to notify and coordinate with city I and 13.1.3 Agency and the respective city shall provide traffic con support staff as deemed necessary by the city and the Agency. Section 14. FORCE MAJEURE. In the event any party is unable to meet its obligations under this Agreement at of Force Maieure, the obligations of the party affected by the Force Maieure condition suspended for the duration of same, as more fully described in Section 1.8 Section 15. SERVICE IN THE EVENT OF NON-FORCE MAJEURE CONDI7 In the event Coast is unable to transfer or transport Acceptable Waste to an a Disposal Facility because of any cause which is not a Force Maieure condition, Coast reasonable efforts to attempt to find alternative disposal facilities or alternative t~aflspo the Disposal Facility or an alternate Disposal Facility site to dispose of the Agency’s A Waste. Coast shall enter into good faith negotiations with the Agency to determine th to be paid for the additional cost, if any, for transfer, transportation to the Disposal 1 for transportation to and disposal at an alternative Disposal Facility site. Section 16. INSURING UNINTERRUPTED SERVICE. Coast acknowledges that the Agency’s primary interest is in the safe and reliabl of the waste as required under this Agreement. To affect such uninterrupted service, 1 agree that on an annual basis, Coast shall propose a standby or backup plan for alterna of waste. This plan will be reviewed and evaluated mually by the Agency and Coa be approved by the Agency on a yearly basis. In the event that this standby or bacl activated, the parties understand and agree that Coast shall be able to pass through all tO the Agency, and Coast shall be entitled to a reasonable profit over and above all ! Section 17. LITIGATION REGARDING THE VALIDITY OP THIS AGREE Coast-JPA Agreement 17 I 0 0 - Should the validity of this Agreement be challenged, each of the parties shall def Agreement and be responsible for their own costs including attorneys' fees. Nothing co in this paragraph or in this Agreement shall require Coast to respond to, defend or ind the Agency or its members against any litigation relative to the North County Resource R Association ("NCRRA") costs or the post-closure expenses of any prior Disposal activities, oi any other litigation other than litigation relative (0 fie valirlirj of Us Agv Section 18. INDEMNITY. 18.1 To the extent permitted by law, the Agency shall defend, indemnify i harmless Coast, its directors, officers, agents, employees, subcontractors, successors an( from all losses, damages, demands, suits, judgments of any kind, on account of inju death of any and all persons (including but not limited to the Agency, its agents, em subcontractors and their successors and assigns as well as Coast, or its agents, and parties), and/or on account of all property damage of any kind, including loss or use : therefrom, in connection with the work performed under this Agreement, or c2 occasioned in whole or in part by reason of acts or omissions on the part of the Agenc its officers, agents, employees and contractors prior to the time that solid waste is pick the Local Collector, and in addition, for any claims, losses, damages, (including spi unacceptable waste as defined herein that passes through the system as a result of the A or its officers, employees, agents, and/or contractors, negligence (including active ant negligence) failing to implement the Agency's obligations as set forth in this Agreem consequential damages), suits, liability, and expenses arising from or conned Except as provided otherwise in chis Agreement as to Acceptable Was; the extent permitted by law, the Agency shall also save, indemnify, defend and hold Coast, and its directors, officers, agents, employees, subcontractors, successors an( from and against any and all claims, losses, damages (including special and con: damages), suits, liability, and expense arising from or connqted with the trans transfer, delivery, treatment, dumping, storage or disposal of Acceptable Waste or UM~ Waste, by the Agency, or any other act or omission of the Agency, its agents, em€ other person designated by the Agency (other than Coast) as provided in this Agrc receive, transfer, deliver, treat, dump, store or dispose of Acceptable Waste or Un Waste; including, but not limited to, damages caused by sudden accidental poll contamination of Acceptable Waste by hazardous wastes, hazardous materials, substances, or toxic wastes or substances, and any fines, penalties or suits resulting frc or actual violation of federal, state or local environmental or other law, statute, penal or regulation. Coast shall defend, indemnify and save harmless the Agency from damages, demands, suits, judgments of any kind, on account of injury to or death all persons(s) (including but not limited to Coast, its agents, employees, subcontracto. successors and assigns as well as Agency or its agents, and all third parties), and/or Coast-JPA Agreement 18.2 18 1 0 0 - of all property damage of any kind, including loss of use resulting therefrom, in connectic the work performed under this Agreement, or caused or occasioned in whole or in 1 reason of the acts or omissions of Coast or its subcontractors, employees or agents in con with the work performed under this Agreement, except only for those losses resulting fr established active negligence or willful misconduct of the Agency or its agents, desigr employees. Notwithstanding the foregoing in this paragraph 18.2, Coast shall have no ob to defend, indemnify or save harmless Agency as to any loss, damage, demand, ! judgment of any kind arising from Agency’s failure to comply with the requirements Agreement regarding Agency’s duty to implement a waste screening program. Section 19. INSURANCE. Coast shall obtain and maintain insurance policies covering all aspects of servic provided to the Agency. 19.1 Limits of Insurance. Coast shall maintain limits of insurance no less th a. Commercial General Liabilitv: General Aggregate Limit $3 ,ooc Products - Completed Operations Aggregate Limit $3 ,oo( Personal & Advertising Injury Limit $LOO( Each Occurrence Limit $1 ,oo( Fire Damage Limit $ 1oc Combined Bodily Injury & Property $Loo( Damage Liability Coverage $1’00 Each Occurrence Limit $2,00( Aggregate Limit $2,001 b. Automobile Liabilitv: C. Excess Liabilitv (Umbrella) d. Worker ComDensation and Emrdoyers Liabilitv: Workers Coml limits as required by the Labor Code and the State of California (eq+ed+and Employers Liability of $l,OOO,OOO per accic 19 -2 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 elinninate such deductible or self-insured as respects to Agency, its officials, employees, agents or volunteers; or Coast shall F additional letter of credit or bond guaranteeing payment losses and related investigatk administration and defense expenses. 19.3 Other Insurance Provisions. The policies are to contain, or be eI! contain, the following provisions: Coast-JPA Agreement 19 0 0 - 19.3.1 General Liabilitv and Automobile Liability Coverage. 19.3.1.1 Agency, its officials, employees, agents and volunte to be covered as additional insured as respects to liability arising out of activities perfon or on behalf of Coast; products and completed operations of Coast; premises owned, le used by Coast; or vehicles owned, leased, hired or borrowed by Coast. The additional status afforded to Agency shall not apply to claims, suits, damages or losses arising oui Agency’ negligence, omissions or misconduct. 19.3.1.2 Coast’s insurance shall be primary insurance as rei Agency, its officials, employees, agents and volunteers. Any insurance or self-in maintained by the Agency, its officials, employees or volunteers shall be in addition to insurance and shall not contribute to it. 19.3.1.3 Coverage shall state that Coast’s insurance shal separately to each insured against whom claim is made or suit is brought, except with to the limits of insurer’s liability. 19.3.2 Workers Comuensation and Emplovers Liabilitv Coverage. The shall agree to waive all rights of subrogation against the Agency, its officials, employees, and volunteers for losses arising from work performed by Coast for the Agency. 19.3.3 All Coverage. Each insurance policy required by this clause endorsed to state that coverage shall not be suspended, modified, or canceled by eithf reduced in coverage or in limits except after thirty (30) days’ prior written notice by mail, return receipt requested, has been given to Agency. 19.4 AcceDtabilitv of Insurers. The insurance policies required by this sect be issued by an insurance company or companies authorized to do business in the California and with a rating in the most recent edition of Best’s Insurance Reports category VII or larger and a rating classification of A or better. 19.5 Verification of Coverage. Coast shall furnish the Agency with certif insurance which evidences coverage required by this Section. The certificates of insUr to be signed by a person authorized by that insurer to bind coverage on its beha certificates must be received and approved in writing by the Agency before work con Subcontractors. Coast shall include all subcontractors as insured under it or shall furnish separate certificates of insurance for each subcontractor. All covi subcontractors shall be subject to all of the requirements stated herein. 19.6 19.7 Rewired Endorsements. 19.7.1 in substantially the following form: Coast-JPA Agreement The Workers Compensation policy shall contain an enc 20 0 0 - "Thirty (30) days prior written notice shall be given to Agency in the e cancellation, reduction in coverage, or non-renewal of this policy. It Such notice shall to: City Manager City of Carlsbad 1200 Carlsbad Village Drive Carlsbad, CA 92008 19.7.2 The Public Liability policy shall contain endorsem "Thirty (30) days prior written notice shall be givei Agency in the event of cancellation, reduction in coverage, or non-renewal of this policy notice shall be sent to: substantially the following form: 19.7.2.1 City Manager City of Carlsbad 1200 Carlsbad Village Drive Carlsbad, CA 92008 '"Agency, its officers, employees, agents, and volunteers are ar insureds OR this policy, but only to the extent of the insurable liability arising out of negligent performance of Coast's work required hereunder. I' 19.7.2.2 "This policy shall be considered primary il as respects to any other valid and collectible insurance maintained by Agency, incluc self-insured retention or program of self-insurance, and any other such insurance considered excess insurance only. " 19.7.2.3 "The policy shall protect Contractor and Agency in manner as though a separate policy had been issued to each, but this shall not operate to the insured limits of liability as set forth in the policy." 19.8 Delivery of Proof of Coverage. Simultaneously with the executior Agreement, Coast shall furnish Agency insurance certificate of each policy of insurance hereunder, in form and substance satisfactory to Agency. Such certificate shall show and amount of coverage, and effective dates and dates of expiration of policies. Renewal certificates will be furnished periodically to Agency to del maintenance of the required coverage throughout the Term. 19.9 Other Insurance Requirements. In the event any services are deleg subcontractor, Coast shall require such subcontractor to provide statutory workers' corn Coast-JPA Agreement 21 0 e - insurance and employer's liability insurance for all of the subcontractor's employees in work in accordance with this Agreement. The liability insurance required by this Ag shall cover all subcontractors or subcontractors must furnish evidence provided by it me of the requirements of this Agreement. Coast shall comply with all requirements of the insurers issuing policil carrying of insurance shall not relieve Coast from any obligation under this Agreement claim exceeding the amount of any deductibles or self-insured reserves is made by an! person against Coast or any subcontractor on account of any occurrence relatec Agreement, Coast shall promptly report the facts in writing to the insurance carriers ai Agency. If Coast fails to procure and maintain any insurance required by this Ag Agency may take out and maintain, at contractor's expense, such insurance as it m proper and deduct the cost thereof from any monies due Coast. The Public Liability hurance required by this Agreement shall be writt "occurrence", rather than a "claim made" basis, if such coverage is obtainable. If the expiration or termination of this Agreement related to incidents which occurred pria expiration or termination. Section 20. FAITHFUL PERFORMANCE BOND. obtainable, Coast must arrange for "tail coverage" to protect Agency from claims fi Simultaneously with the execution of this Agreement, Coast shall file with 1 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 ($1,OOO,OOO.~ 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 alternative, Coast may deposit a letter of credit or epem certificate of deposit in the m Agency to be held to secure this faithful performance. Section 21. 21.1 RELATIONSHIP OF THE PARTIES. Nothing in this Agreement shall be construed so as to cause the part involved in a partnership or joint venture. 21.2 Coast shall perform all work under this Agreement as an independent c( Neither Coast nor any of Coast's subcontractors, employees or agents are or shall be ( or considered to be employees, agents, or servants of the Agency or its member! purpose under this Agreement. 2 1.3 Coast shall have exclusive control of and the exclusive right to control th and work performed by its employees, subcontractors and agents. Coast-JPA Agreement 22 0 0- -. Section 22. PARTIES AND INTERESTIIYO THIRD PARTIES BENEFICIC Nothing in this Agreement, whether expressed or implied, is intended to confer an or remedies under or by reason of this Agreement on any persons other than the parties t their respective successors and assigns, nor is anythmg in ths Agreement intended to re discharge the obligations or liability of any third persons to any party to this Agreemc shall any provision hereof give any third persons any right of subrogation or action over any party to this Agreement. Neither Coast nor any subcontractor of Coast shall be dc third party beneficiary to this Agreement. Section 23. EOUAL OPPORTUNITY/NON-DISCRIMINATION. Coast shall not discriminate against any employee or applicant for employment of race, religion, creed, color, sex, marital status, sexual orientation, political ic ancestry, national origin, or the presence of any sensory, mental, or physical handicap based upon a bona fide occupational qualification. Coast shall take affirmative action tc that applicants are employed, and that employees are treated during employment, withou to their creed, religion, race, color, sex, marital status, sexual orientation, political ic ancestry, national origin, or the presence of any sensory, mental, or physical handical action shall include, but not be limited to the following: employment, upgrading, dem transfer, recruitment or recruitment advertising, layoff or termination rates of pay or othc of compensation, and selection for training, including apprenticeship, Section 24. ASSIGNMENT. Except as provided in this Agreement, neither party shall assign its rights nor or otherwise transfer its obligations under this Agreement to any other person without 1 written consent of the other pariy. Any such assignment without the consent of the otl shall be void and the attempted assignment shall constitute a material breach of this Agi For purposes of this Section, "assignment" shall include, but not be limited to, ( exchange or other transfer of substantially all of Coast's assets dedicated to service ul Agreement to a third party; (ii) a sale, exchange or other transfer of ten percent (10%) of the outstanding common stock of Coast; (iii) any reorganization, consolidation, recapitalization, stock issuance or re-issuance, voting trust, pooling Agreement, arrangement, liquidation or other transaction to which Coast or any of its shareholders i to which results in a change of ownership or control of ten percent (10%) or more of 1 or voting rights in the stock of Coast's and (iv) any combination of the foregoing (wl not in related or contemporaneous transactions) which has the effect of any such tri change of ownership. For purposes of this Section, the term "proposed assignee" sh to the proposed transferee(s) or other successors(s) in interest pursuant to the ass However, no transfer by Arie de Jong to any of his children, children's spc grandchildren shall be deemed to be a change of ownership or transfer of control. Coast-J PA Agreement 23 e e - Coast acknowledges that this Agreement involves rendering a vital service to A residents and businesses, and that Agency has selected Coast to perform the services s herein based on (1) Coast’s experience, skill and reputation for conducting its Soli( management and disposal operation in a safe, effective and responsible fashion, at all keeping with applicable waste management laws, regulations and good waste managen practices, and (2) Coast’s financial resources to maintain the required equipment and to its indemnity obligations to Agency under this Agreement. Agency has relied on each factors, among others, in choosing Coast to perfom the services to be rendered by Coa this Agreement. If Coast requests Agency’s consideration of and consent to an assignment, Age; deny or approve such request in its complete discretion. No request by Coast for cons( assignment need to be considered by Agency unless and until Coast has met the fc requirements : 24.1 Coast shall pay Agency its reasonable expenses for attorney’s fec investigation costs necessary to investigate the suitability of any proposed assignee review and finalize any documentation required as a condition for approving a assignment. 24.2 Coast shall furnish Agency with financial statements of the proposed z operations for the immediately preceding three (3) operating years; 24.3 Coast shall furnish Agency with satisfactory proof: (i) that the proposed has at least ten (10) years of Solid Waste management experience of a scale eqt exceeding the sale of operations conducted by contractor under this Agreement; (ii) tl: last five (5) years, the proposed assignee has not suffered any citations or other cem any federal, state or local agency having jurisdiction over its waste management opera1 to any significant failure to comply with state, federal or local waste management laws 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 environmentally conscientious fashion; (iv) that the proposed assignee conducts its Solid Waste ma practices in accordance with sound waste management practices in full compliance federal, state and local laws regulating the Collection and disposal of waste; and (v) of i information required by the Agency to ensure that the proposed assignee can fulfill the this Agreement in a timely, safe and effective manner. 24.4 Under no circumstances shall any proposed assignment be considered b! if Coast is in default at any time during the period of consideration. 24.5 If Agency consents to an assignment, at the point of transition, C cooperate with the Agency and Coast(s) or subcontractor(s) will assist in an orderly which will include Coast providing route lists and billing information. Coast-JPA Agreement 24 e 0- 24.6 In connection therewith, Coast acknowledges that the provisions of Resources code Section 49520-49523 have no application to this Agreement and agree: extent such sections may have application, to waive whatever rights they may afford. 24.7 Any application for an agreement transfer shall be governed by the fc conditions: 24.7.1 Any application for an agreement transfer shall be mi manner prescribed by Agency or its designee. The application shall include a transfer I amount to be set by the Agency by Resolution of the Agency Board to cover the ca direct and indirect administrative expenses including consultants and attorneys, nece adequately analyze the application and to reimburse Agency for all direct and indirect e In addition, Coast shall reimburse Agency for all costs not covered by the transfer fe shall be supported with evidence of the expense or costs incurred. The applicant shall bills within (30) days of receipt. 24.7.2 The agreement transfer fees are over and above any Agree1 specified in the Agreement. 24.7.3 The agreement transfer fee shall apply to the transfe Agreement resulting from this Agreement. 24.8 Nothing in this Agreement shall prevent Coast from assipg this con1 new corporation to be formed which shall be called Coast Waste Transfer, Inc. Section 25. RECORDS. All parties hereto shall maintain in their offices full and complete accounting prepared in accordance with generally accepted accounting principles, reflectj performance under this Agreement. Section 26. APPLICABLE LAW. The substantive laws of the State of California, excluding any law, rule or which might refer to the substantive law of another jurisdiction, will govern the inter] validity and effect of this Agreement without regard to the place of execution or the performance thereof, and the Agency and Coast agree that the state courts situated in I County, California, shall have personal jurisdiction over the Agency and Coast tc disputes arising under this Agreement. Section 27. DISPUTE RESOLUTION. THE PARTIES DESIRE AND INTEND THAT ANY DISPUTES ARISING THIS AGREEMENT SHALL BE MUTUALLY RESOLVED BYTHEM IN GOO WITHOUT ASSISTANCE FROM THIRD PARTIES. IN THE EVENT THAT T€ Coast-JPA Agreement 25 0 0 - UNABLE TO ARRIVE AT A SOLUTION, THEN THEY AGREE TO MEDPATIO THEEVENT THATTHEY AREUNABLETO MUTUALLY AGREE ONAMEDU THEN THEY SHALL APPLY TO THE SAN DIEGO SUPERIOR COURT REQUEST THAT A MEDIATOR BE APPOINTED. SUCH MEDIATION SHALI CONDITION PRECEDENT TO ANY LITIGATION. IN THE EVENT THE MEDIATION IS UNSUCCESSFUL, THE PARTIE: RESOLVE THEIR DIFFERENCES IN A COURT OF LAW. THE SAN DIEGO CC SUPERIOR COURT SHALL HAVE SOLE JURISDICTION OVER ALL DISPUTE PARTIES AND THE INTERPRETATION OF THE RIGHTS AND DUTIES 0 PARTIES AND THE INTERPRETATION OF THIS CONTRACT SHALL BE DEI IN ACCORDANCE WITH CALIFORNIA LAW. AGENCY INITIALS COAST INITIALS Section 28. EVENTS OF DEFAULT Each of the following shall constitute an event of default ("event of Default") he 28.1 Coast fails to perform its obligations 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 thirty (30) business days after receiving notice from the specifying the breach; 28.2 Any representation or disclosure made to the Agency by Coast in connec 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 time the repre or disclosure is made, whether or not my such representation or disclosure appears of this Agreement: 28.3 There is a seizure or attachment (other than a prejudgment attachment) o affecting possession of, the operating equipment of Coast, including without limit its maintenance or ofice facilities, or any part thereof of such proportion as to impai ability to perform under this Agreement and which cannot be released, bonded, or lifted within forty-eight (48) hours, excluding weekends and holidays; 28.4 Coast files a voluntary petition for debt relief under any applicable ba insolvency, debtor relief, or other similar law now or hereafter in effect, or shall con appointment of or taking of possession by a receiver, liquidator, assignee (other thar of a transfer of equipment no longer usefui to contractor or necessary for this A~I trustee (other than as security for an obligation under a deed of trust), custodian, se Coast-JPA Agreement 26 a -0 (or similar official) of Coast for a part of Coast’s operating assets or any substantia] Coast’s property, or shall make any general assignment for the benefit of contractor’s c or shall fail generally to pay contractor’s debts as they become due or shall take any i furtherance of any of the foregoing; 28.5 Any court having jurisdiction shall enter a decree or order for relief in rt contractor, in any voluntary case brought under any bankruptcy, insolvency, debtor I similar law now or hereafter in effect, or contractor shall consent to or shall fail to opl such proceeding, or any such court shall enter a decree or order appointing a 1 liquidator, assignee, custodian, trustee, sequestrator (or similar official) of Coast or for of Coast’s operating equipment or assets, or order the winding up or liquidation of th of contractor; 28.6 Coast fails to provide reasonable assurances of performance as required to this Agreement. 28.6.1 Agency’s Remedies Cumulative: Specific Performance. 1 right to terminate this Agreement and to take possession of Coast’s properties pwsua~ Agreement are not exclusive, and Agency’s termination of the agreement shall not con! election of remedies. Instead, they shall be in addition to any and all other legal and ( rights and remedies which Agency may have. By virtue of the nature of this Agreement, the urgency of timely, contini high quality service, the lead time required to effect alternative service, and the right! by the Agency to Coast, the remedy of damages for a breach hereof by contractor is in and Agency shall be entitled to injunctive relief. 28.6.2 Excuse from Performance. The parties shall be excu performing their respective obligations hereunder in the event they are prevented performing by reason of force majeure as described and defined in this Agreement or a of loss of permit or as a result of a government or court order. The party claiming excuse from performance shall, within two (2) days a party has notice of such cause, give the other party notice of the facts constituting SI: and asserting its claim to excuse under this Section. Notwithstanding, Coast in the e catastrophic event shall comply with the Agency members’ Emergency Preparedness In the event that either party validly exercises its rights under this Sec 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 1 Coast is excused from performing its obligations hereunder for any of the causes list Coast-JPA Agreement from performance will not affect the Agency’s rights pursuant to‘this Agreement; i 27 e - 0 Section for a period of thirty (30) days or more, other than as the results of third part disputes where service cannot be provided for reaSons described earlier in this Section, 4 shall nevertheless have the right, in its sole discretion, to terminate this Agreement by ten (10) days notice. 28.6.3 Right to Demand Assurances of Performance. If Coast (1 subject of any labor unrest including work stoppage or slowdown, sickout, picketing c concerted job action; (2) appears in the reasonable judgment of Agency to be unable to re pay its bills as they become due; or (3) is the subject of a civil or criminal invest charge, or judgment or order entered by a federal, state, regional or local agency for v of a law relating to performance under this Agreement, and Agency or its designee bel good faith that Coast’s ability to perform under this Agreement has thereby been pl substantial jeopardy, Agency may, at its option and in addition to all other remedies it mi demand from Coast reasonable assurances of timely and proper performance of this Agr in such form and substance as Agency or its designee believes in good faith is reasona necessary in the circumstances to evidence continued ability to perform under the Agr If Coast fails or refuses to provide satisfactory assurances of timely and proper perfom the form and by the date required by the Agency, such failure or refusal shall be an I default for purposes of this Agreement. Section 29. BINDING ON SUCCESSORS The provisions of this Agreement shall inure to the benefit of and be bindin! successors and permitted assigns of the parties. Section 30. TRANSITION TO NEXT CONTRACTOR. If at any point Agency desires to franchise solid waste services to a third par services are franchised to Coast under this Agreement, and the third party contractor obligated at the point of transition, to cooperate with the Agency and subsequent con1 to assist in an orderly transition which will include Coast providing transfer, transpork billing information. Coast will not be obligated to sell vehicles, bins and containers to contractor. Depending on contractor’s circumstances at the point of transition, Co, option may enter into negotiations with the next contractor to sell (in part or all) trans equipment. Section 31. WAIVER. The waiver by either party of any breach or violation of any provisions of this A shall not be deemed to be a waiver of any breach or violation of any other provision I: subsequent breach or violation of the same or any other provision. The subsequent a by either party of any monies which become due hereunder shall not be deemed to be of any preexisting or concurrent breach or violation by the other party of any provisi Agreement. Coast-JPA Agreement 28 0 - 0 Section 32. CONTRACTOR’S INVESTIGATION, Coast has made an independent investigation (satisfactory to it) of the conditi circumstances surrounding the Agreement and the work to be performed by it. Section 33. 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 domaii Section 34. 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 u serve as the representative of Contractor in all matters related to this Agreement e inform the Agency in writing of such designation and of any limitations upon hislher : to bind Coast. Agency may rely upon action taken by such designated representative of Coast unless they are outside the scope of the authority delegated to Wher by communicated to the Agency. Section 35. AGENCY FRJ2E TO NEGOTIATE WITH THIRD PARTIES. The Agency may, at any time, investigate all options for the provision of the ( and non-exclusive services granted to Coast by this Agreement after the expiration of 1 or termination. Without limitkg the generality of the foregoing, the Agency mz 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 take ef the expiration or earlier termination of this Agreement and/or any future Agreement Section 36. SEVERABILITY. 36.1 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 pa 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; ar provided, however, that in no event shall competitive proposals for transport or dispc Agency’s Acceptable Waste be ground for renegotiation on the part of Coast. Coast-JPA Agreement 29 0 0 - To Agency: City Manager City Manager City of Carlsbad 1200 Carlsbad Village Dr. Carlsbad, CA 92008 To Coast: Attention: General Manager City of Escondido 201 N. Broadway Escondido, CA 92025 Coast Waste Management P.O. Box 947 Carlsbad, CA 92018-0947 Any party may from time to time designate a new address for notices. 1 return receipt or other document establishes otherwise, a notice sent by U.S. Mail : presumed to be received the third business day after its mailing. This Agreement has been executed by authorized officials of the parties as of 1 first above written. Attest: NORTH COUNTY SOLID WASTE MANAGEMENT AUTHORITY % 9 BY Title q& Attest: COAST WASTE MANAGEM 1 INC. % 5 BY 3- Title 33. C. 4. s 5 fl Coast-J PA Agreement 38 EXHIBIT 2 0 0 Public Notice is hereby given that the North County Solid Waste Management Agency w meeting on Thursday, October 27, 1994 at 1O:OO a.m. at the Carlsbad Municipal Water Dis 5950 El Camino Real, Carlsbad. The agenda is as follows: I NORTH COUNTY SOLID WASTE MANAGEMENT AGENCY . AGENDA October 27, 1994 - 1O:OO a.m. Carlsbad Municipal Water District 5950 El Camino Real (east side of Camino Real) I. Call to Order x. Consent Calendar (action in one motion to approve) 1. Minutes of August 24, 1994 III. Current Business A. Action on Alternative Disposal Agreement with Coast Waste Managemen 1. 2. Report on Liability Issues - Alternative Disposal Status of Non-Member Coalition Cities 1. F; Report on City Council Actions Action regarding an Environmental Review B. C. Report on Public Relations Action D. Recommendation Regarding Associate Memberships Iv. New Business V. Other Items for Consideration VI. Public Comments VU Adjournment / contractor. 4 I 0 * d This cofitract contemplstes a one million dollar seciirity : appropriate figure WOZ~S: be close t:2 the anni:al cost of th service. The contract is for forty years, with renewals at five yea stages - and the Contractor is cjiven the opportunity to ma cmipetive bids I Sort of takes the exci.temer;t OU-C. of t;he b process .) And last - don't just settle for. disposal. at QUOTE - any f for the disposal of nonhazardous waste that meets ail fede state and local requirements ~GY such a facility - UNQUOTE Require your contractor to use o~ly facilities meeting the don't let your contractor use substandard facilities that currently grandfathered, yet can not get 2 current permit, Contractor. co.r!s ering the risks to the city, a nore Federal Subtitle D standards for new facilities. Please, a1-id Carlsb~d $!ill beco~v.e p83i11f1~?iiy atiare of P R f ~ Thank yoi~, and press on wit?? your determination ko ha3.7e -.a economic independence from the County trash aut!aor ity, but the leverage you have. CARLSBAD\WASTE