Contract No. 1993-05 - General Metals of TacomaTHIS AGREEMENT is made this 18th day of February, 1993,
between the KODIAK ISLAND BOROUGH, of 710 Mill Bay Road, Kodiak,
Alaska 99615-6398, hereinafter "Kodiak", and GENERAL METALS OF
, of -1902 Marine d=ear Drive, Tacoma, Washington 98422,
hereinafter "General".
1. Recital. Kodiak is a municipal corporation and political
subdivision of the State of Alaska. Kodiak requires a scrap steel
recycling program for a one time cleanup of Smokey's Dump, a former
landfill located within the Kodiak jurisdiction. General is a
scrap steel recycling company with industry knowledge regarding the
collection, loading, processing and distribution of recyclable
scrap steel with a physical location in Tacoma, Washington.
2. Prosect. General agrees to furnish all equipment and
perform all the work necessary to complete the following recyclable
cleanup activities. General will provide a trained crew with a
supervisor skilled in scrap handling. General will provide the
necessary equipment to remove the accumulated scrap steel from
Smokey's Dump and the area of the current Kodiak Island Borough
Baler Facility and Landfill, and transport the material to a
staging area. General will load a barge utilizing sound methods
for marine transportation of the material to its headquarters in
Tacoma. General will make arrangements for timely barge
transportation of the scrap material in order to perform the
project between April 15, 1993 and July 31, 1993. General will
provide a marine survey of the total weights received and a
breakdown of scrap grade and value after arrival in Tacoma.
General will provide a job accounting within 20 days after
unloading the material in Tacoma to determine any adjustments to
the contract sum. General shall attempt identify any potential
hazardous materials and be responsible for insurance and workers'
safety, as more specifically provided herein. General will accept
up to 3,500 tons of scrap steel, including the material from
Smokey's Dump and the Kodiak Baler and Landfill Facility, United
States Coast Guard, and contributions from the Kodiak community.
General is not required to provide transportation for any scrap
material from locations other than Smokey's Dump and the Kodiak
Island Baler and Landfill Facility. General will be responsible to
keep track of the amount of material which it collects and to
remove all of the material from the staging area for transportation
to Tacoma or return to the Kodiak Baler and Landfill Facility in
excess of barge capacity.
3. Payment. Kodiak shall pay to General for the performance
of the work necessary to complete this project, the contract sum of
Sixty -Nine Thousand One Hundred Seventy -Five and No/100 Dollars
($69,175.00). Kodiak will pay an initial installment of one-half
of the contract sum at the time that General commences site
operations in Kodiak. Kodiak will pay the balance of the contract
sum within 30 days following the completion of the project, which
includes off-loading at Tacoma.
4. Extra WORK. General is not required to accept more than
3,500 tons of scrap. General may, at its option, accept metals in
amounts exceding 3,500 tons of scrap for recycling.
5. Hazardous Materials. Kodiak acknowledges that General is
not required to accept hazardous materials of any kind.
(a) Definition. Hazardous materials are defined to
include:
(i) any "hazardous substance" as defined in CERCLA,
§ 101(14) or any "hazardous waste" as defined in RCRA and
applicable regulations or any applicable federal, state or
local laws or regulations, or
(ii) any form of radioactive waste material,
contaminant or pollutant or any spent nuclear fuel as those
terms are defined in any applicable federal, state or local
laws or regulations.
(b) Right to Inspection. General shall have the right,
but not the obligation, to inspect, sample, analyze or test any
scrap before acceptance. Failure of Kodiak to provide General with
access to any tendered or delivered scrap prior to General's
acceptance shall be deemed a non -conforming tender or delivery.
(c) Rejection of Hazardous Materials. If any of the
scrap contains hazardous materials, General may at its exclusive
option, (i) reject the scrap tendered; or (ii) accept the scrap
tendered; or (iii) accept any unit of the scrap tendered and reject
the rest. Rejection of the scrap must be made within a reasonable
time after tender or delivery, not to exceed 24 hours. Failure of
General to reject the scrap or any unit thereof shall be deemed
acceptance of all tendered scrap not so rejected. Upon accepting
the scrap, General shall be precluded from rejecting the scrap
which has been accepted, and if acceptance of any unit of scrap was
made with actual knowledge that it contained hazardous materials,
General shall be precluded from revoking its acceptance of such
unit because of such non -conformity.
(d) Revocation of Acceptance. General may at any time
before the condition of any unit of scrap has been materially
changed, revoke its acceptance of any unit or units of scrap
discovered to contain hazardous materials. Revocation must occur
within a reasonable time after General actually discovers or should
have discovered the hazardous materials. In revoking its
acceptance of any scrap, General shall notify Kodiak of the manner
in which the scrap contains hazardous materials.
(e) General Options as to Rightfully Rejected or
Revoked. If General rejects or revokes its acceptance of any units
of scrap containing hazardous materials, and at such time the scrap
is in General's possession or control, General and Kodiak shall in
good faith attempt to reach an agreement to provide for handling of
AGREEMENT - 2
the hazardous materials. If the parties cannot within a reasonable
time after rejection or revocation agree on a procedure for
handling of the hazardous materials, Kodiak shall make prompt
arrangements for the removal of the scrap containing hazardous
materials from General's possession to another lawful place of
disposition. Kodiak agrees to pay General its reasonable expenses
and -charges for handling. loading. stQwi� _renaring__ for
--
transport, transporting, storing and caring for any scrap materials
found to contain hazardous materials and returned to Kodiak
pursuant to this section.
(f) Indemnity. Kodiak agrees to protect, defend,
indemnify, exonerate and hold General harmless from and against any
and all suits, causes of action, claims, demands, liabilities,
losses, liens, fines, costs, including attorneys' fees at trial and
on appeal, criminal and civil penalties, or any other obligations
arising out of or in any manner connected with incidents involving
bodily injury, death, property damage or any violation or alleged
violation of federal, state or local laws or regulations relating
to environmental pollution arising out of a violation by Kodiak of
its obligations under this section.
6. Title to Scran Materials. At the time that General
accepts the scrap materials and takes possession and control
thereover, title, risk of loss and all other incidents of ownership
to the scrap material shall be transferred from Kodiak and vested
in General. A justified revocation of acceptance by General
reverts title to Kodiak, including risk of loss and all other
incidents of ownership, at the time such revocation of acceptance
is communicated to Kodiak.
7. Term. General agrees to commence work on this project on
or about April 15, 1993 and to complete this project on or before
July 31, 1993. The dates for commencement and completion of the
project may be changed by mutual agreement of the parties for good
cause. Time is of the essence of this Agreement.
8. Authorized Representatives and Notice. The authorized
representatives for the parties for the purposes of this Agreement
are:
KODIAK:
Steve Hobgood
710 Mill Bay Road
Kodiak, Alaska 99615
Telephone: (907) 486-9340
Fax: (907) 486-9376
GENERAL:
Ralph Miller/Buddy Friedman
1902 Marine View Drive
Tacoma, Washington 98422
Telephone: (206) 572-4000
Fax: (206) 572-0316
Written notice shall be deemed to have been duly served if
delivered in person to the individual for whom it was intended, or
if delivered at or sent by registered or certified mail to the last
business address known to the party who gives the notice.
AGREEMENT - 3
9. Force Mmieure. The parties to this Agreement shall be
excused from performance under this contract to the extent and for
the period of time necessitated by the occurrence of any fire, flood,
earthquake, other natural disaster, strikes, labor disputes, war,
direct act of any government or any subdivision thereof, and any
other events of force majeure beyond the control of either party.
10. Safety. General agrees to conduct the work in compliance
with all federal, OSHA, state and local safety regulations.
11. Insurance. General shall maintain worker's compensation
insurance as required by the law and employer's liability insurance
in the minimum amount of $100,000. Without limiting General's
liability hereunder, General shall also maintain the following types
of insurance with specified limits:
(a) General Liability (comprehensive form) including
products/completed operations, contractual liability, broadform
property damage, and independent contractors coverage:
Bodily Injury
Property Damage
OR
Bodily Injury and
Property Damage
Combined
EACH OCCURRENCE AGGREGATE
$500,000 $500,000
$250,000 $250,000
$500,000 $500,000
(b) Automobile Liability (comprehensive form)
Bodily Injury (each person) $250,000
Bodily Injury (each occurrence) $500,000
Property Damage (each occurrence) $250,000
OR
Bodily Injury and Property Damage
Combined (each occurrence) $500,000
12. Indemnity. General shall indemnify and hold Kodiak free
and harmless from all losses, damages, expenses, judgments, liens,
claims, demands or liabilities of any kind, including reasonable
attorneys' fees, for injury or death to persons, or loss or damage to
property, including substructures, arising out of General's
performance of this contract. Such indemnity shall not cover losses,
damages, expenses, judgments, liens, claims, demands or liabilities
which are caused by the sole negligence of Kodiak. General shall be
given notice of any suit, claim or demand within a reasonable time
after Kodiak acquires knowledge thereof, and shall be authorized to
defend the same without cost to Kodiak (saving that Kodiak shall pay
its own counsel fee if it wishes to have separate representation in
any suit). General shall be given all information and assistance
that it may reasonably require to defend the action. No compromise
or settlement of any such suit, claim or demand shall be entered into
until the written notice of General has been given to Kodiak.
AGREEMENT - 4
13. Default. In the event that either party shall fail to
abide by or perform any of the terms and conditions of this
contract, either party may terminate this contract by giving
written notice to the other party. In the event suit is filed to
enforce any of the terms or conditions of this contract, the
prevailing party shall be entitled to reasonable attorney's fees.
14. Nonassicrnment of Contract. General shall not assign any
of its rights under this contract without the written consent of
Kodiak. However, subcontracting portions of the project shall not
be considered an assignment for the purposes of this section.
15. Independent Contractor. It is expressly understood and
agreed that General is an independent contractor and Kodiak shall
not be liable for any of General's acts or omissions in the
performance of the work.
16. Subcontractors. General agrees to provide a list of
subcontractors to Kodiak for approval, which approval shall not be
unreasonably withheld. General agrees to bind all subcontractors
by the terms of this contract.
17. Choice of Law. This Agreement shall be deemed to be a
contract under the laws of Alaska and for all such purposes shall
be governed by and construed in accordance with the laws of such
state including the Uniform Commercial Code as adopted in the State
of Alaska.
18. Entire Agreement. This Agreement contains the entire
agreement of the parties and is intended to replace and supersede
all prior negotiations, understandings, and agreements between the
parties. No modification of the terms and conditions of this
Agreement will be valid or binding on the parties unless made in
writing after the date hereof and signed by an authorized
representative of each of the parties.
19. Right to Audit. General shall maintain complete and
accurate records, kept in accordance with generally accepted
accounting standards, of all of General's costs which are
chargeable to Kodiak and shall retain such records for at least two
years after completion of the contract. Kodiak shall have the
right, at any reasonable time, to inspect and audit those records
during the course of work and throughout the two-year retention
period. General shall accommodate such review at no additional
cost. General shall incorporate this requirement in all contracts
with third parties to whom this work may be subcontracted.
AGREEMENT - 5
IN - WITNESS WHEREOF, the parties have entered into this
Agreement the day and year first above written.
GENERAL
KODIAK ISLAND BOROUGH
By: 1 c �G'l -dam
J ome Selby,
ATTEST:
�03'LYIQ 7`•
`Donna Smith, Borough Clerk
4702\345D.001
AGREEMENT - 6