Contract No. 1991-10CUSTOMgz NAME & MAILING ADDRESS
Kodiak Island Borough
710 Mill Bay Rd.
Kodiak, AK 99615
Dear Mr. Wayne Coleman:
C 9/- /a
CUSTOMER BILL) Jr_ ADDRESS
Kodiak Island Borough
710 Mill Bay Rd.
Kodiak, AK 99615
Your Waste Profile No. PDX-W17076-083 (Alaska Dept. of Envirn. Conser) has been
approved for acceptance at Chemical Waste Management, Inc. Is 0M, Inc. of the Northwest
Facility located in Arlington, OR subject to the terms of the Waste Transportation and
Disposal Agreement between the (meanies. Based on the sample or description of the
waste provided to Chemical Waste Management, Inc., the compensation for services
provided is described below. The price is, however, subject to change by Chemical
Waste Management, Inc. upon thirty (30) days prior written notice to you. Payment
terms: Net thirty (30) days upon approved credit.
This Exhibit shall commence on 02/01/1991, and shall remain in effect until terminated
by either party with or without cause by thirty (30) days advance written notice to
the other party. Note: Changes may have been made to some sections of the above
referenced profile sheet, by signing this Exhibit you are affirming that you agree with
these changes.
DISPOSAL METHOD: Secure Landfill at the above facility and/or other EPA and CUM
approved facility(ies). This disposal approval will expire 01/22/1993.
LOADING AND TRANSPORTATION: The Waste Products are to be loaded on vehicles by
Customer for Flatbed or End Dump Trucks and by Disposer for Flatbeds with lift gates,
Vacuum or Roll Off Trucks. Please call our dispatch department to schedule
transportation at 503 454-2620 .
CCHPENSATION: See the attached fee schedule. Priced as profiled, invoiced as received.
Transportation and Disposal pricing for other methods of shipment and/or pickup
locations are quoted on request. All applicable taxes will be invoiced as imposed and
are not included in the prices quoted. Disposer is authorized to reclaim, recover and
sell, distribute or use the Waste Products, their components or resi P-�s�
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If you have any questions please feel free to call our office 4�Zst�+�
Thank you for your continuing business
sincerely,
Chemical
" Manag Inc.
Distri Sales Manager
L•YYYi•• w - u . �..
CLIENT'S COPY
r.T,«DIUND.�
Kodiak Island Borough
Title
Date �L� )i�, fflf9-
45040288321W01-315-14-91
Transportation fee: Milage rate is $3.70 per loaded mile for dump trucks, roll -off containers
& flatbed trucks; tanker trucks: $3.75 per loaded mile.
SPECIAL NOTICE:
Due to rapidly rising fuel costs brought on by the events in the Persian Gulf, effective
September 4, 1990 we must increase our prices for Transportation Services by 5%. This will
be in the form of a "Fuel Surcharge" that will be added to our regular transportation rate
and will be shown as a separate line item on each invoice. We will keep you advised of any
further changes as they become necessary.
Rate includes loading time as follows:
1-9 drums = 1/2 hours
10 + drums = 1 hour
For pick-ups of 20 drums of less a stop charge of $50.00 will apply.
Loading time beyond those indicated will be charged at $70.00 per hour.
Dermmirrage = $70.00 per hour after first hour.
Bin Rentals: $300.00 per month or $10.00 per day.
Liners: $60.00 liner.
Additional Notes:
1. Off route pick-ups and pick-up in difficult or remote locations may require additional
cost to cover actual transportation cost. These charges will be reflected in contract
pricing.
2. Prices are for transportation only. A seperate disposal price schedule is attached.
3. Prices apply to drum sizes 30 - 55 gallon.
4. Transportation cost for one pallet, 4 x 4 feet or smaller, is equivalent to four(4)
drums.
5. Maximum weight = 45,000 pound per flatbed.
6. Applicable regulatory fees are additional and will be added to the invoice.
7. LTL Rate will prevail up to Total Truckload Rate per established Bulk Truckload price
for specific area.
8. Advance notification of lift -gate equipment is required. Please contact LTL Coordinator.
9. Per Diems(over night subsistence charge): $60.00 per night for all trips requiring
either 15 hours of work in a 24 hair period or more than 10 hours of actual driving time in
a 24 hour period.
10. For specialized transportation requirements, large volume projects or rail movement
rates, please contact your local customer service representative at (206) 251-6227 in our
Kent, Washington sales office.
TABLE OF CONTENTS TO AGREEMENT
Page
I. ASREEMENT
1.
Waste Products
1
2.
Waste Product Approval Procedure
1
3.
'fender of Delivery
2
4.
Disposer Right to Inspection Upon Tender
3
5.
Disposer Rights on Improper Delivery
3
6.
Acceptance of Waste Products
3
7.
Revocation of Acceptance
4
7a.
Broker's Options in Event of Rejection
or Revocation of Acceptance
4
8.
Disposer Options as to Rightfully Rejected or
Revoked Waste Products
5
9.
Loading and Transportation of Waste Products
5
10.
Storage and Disposal
5
il.
Title to Waste Products
5
12.
Term
6
13.
Right to Terminate
6
14.
Compensation
6
15.
Disposer Warranties
7
16.
Broker Warranties
8
17.
Indemnification
9
18.
Insurance
11
19.
Confidentiality
11
26.
Work on Generator's Premises
12
21.
Inspections
12
22.
Excuse of Performance
13
23.
Delegation and Assignment
14
24.
Independent Contractor
14
25.
Notice
14
26.
Entire Agreement
14
27.
Waiver
15
28.
Miscellaneous
15
29.
Separability
15
30.
15
II. ACCEPTANCE LETTER
17
III. AUTHORIZED SIGNATORIES (EXEIIBIT B)
18
On this 1 day of February, 1991, the parties, Kodiak Island Borough a is corporation
with its principal offices at 710 Mill Bay Rd., Kodiak, AK 99615 (hereinafter called
"Broker" and Chemical Waste Management, Inc., a Delaware corporation with its principal
offices at 3003 Butterfield Rd., Oak Brook. IL 60521 (hereinafter called
"Disposer"), have agreed as follows:
1. WASTE PRODUCTS. The term "Waste Products" refers to those solids, liquid,
semisolid, or contained gaseous materials which are generally described in,
and which have physical, chemical, biological or radioactive constituents,
characteristics and properties within the specifications stated in, the
Generator's Waste Materials Profile Sheet. The term "Waste Products" also
includes containers described in the Generator's Waste Material Profile Sheet,
if they are to be supplied by the Broker. The term "unit of Waste Products"
refers to a single whole container of Waste Products (such as a barrel, drum,
box or tanker load).
Materials and containers shall be considered non -conforming: (i) if they are
not in accordance with the warranties, descriptions, specifications of
limitations stated in this Agreement and the Generator's Waste Material
Profile Sheet, or (ii) if they have constituents or components, not
specifically identified in the Generator's Waste Material Profile Sheet, (a)
which increase the nature or extent of the hazard and risk undertaken by
Disposer in agreeing to handle, load, transport, store, process, treat or
dispose of the Waste Products, or (b) for whose storage, treatment or disposal
the Disposal Facility (or Storage Facility, if any) is not designed or
permitted.
2. WASTE PRODUCT APPROVAL PROCEDURE. At the time Broker requires disposal
services hereunder for a particular Waste Product, Broker shall provide
Disposer with a completed Generator's Waste Material Profile Sheet, in that
form specified in Exhibit C (which Exhibit is attached hereto and made a part
hereof), containing the information therein required and executed by Broker.
If requested by Disposer, Broker shall also provide a representative sample
of the Waste Product to Disposer. Upon receipt of the Generator's Waste
Material Profile Sheet and the representative sample, if required, the
Disposer shall determine whether the Waste Product is acceptable for disposal
at the Disposal Facility. If the Waste Product is approved by the Disposal
Facility for treatment or disposal, Disposer shall issue an Acceptance Letter,
in that form specified in Exhibit A (which Exhibit is attached hereto and made
a part hereof) containing the commercial information pertinent to that
particular Waste Product. Each Acceptance Letter shall be issued in duplicate
and executed by the Broker and Disposer. An Acceptance Letter, prepared and
executed as herein required, together with the Generator's Waste Material
Profile Sheet for such Waste Product, shall be considered incorporated into
this Agreement and a part hereof as of the date and time of its execution.
It is the intention of the parties that each Acceptance Letter, when
incorporated herein, constitutes a separate undertaking, individually
Form No. MII-55-B Broker (Rev. 8-29-88)
C 1986, Np1.STE MANAGEMENT, INC.
M- 7vr*7U'77NY1M"
An Acceptance letter, or any amendment thereto, shall be executed, on behalf
of Disposer or Broker, only by such persons appointed as authorized agents
of the parties for such purposes, which persons are identified, by name or
specific position title, in Exhibit B, attached hereto and made part hereof.
Either party may, by notice to the other, amend its list of authorized agents,
which shall constitute an amendment to Exhibit B at the time such notice is
received.
For purposes of this Waste Transportation and Disposal Agreement, the term
"Disposer" shall be deemed to include Chemical Waste Management, Inc. and the
following subsidiaries and affiliates: Chemical Waste Mangement of the
Northwest; Chemical Waste Management of Baja California, Inc.; Chemical Waste
Management of Indiana, Inc.; Chemical Waste Management of Kansas, Inc.;
Chemical Waste Management of New Jersey, Inc.; Codd Chemical Services; CSAI
Holdings, Inc.; CWM Resource Recovery, Inc.; Hazco International, Inc. and
Oil and Solvent Process Company (OSOD). The corporate entity entering into
each particular Exhibit "A" and "B" shall be the corporate entity responsible
for performance in accordance with the terms and conditions set forth herein.
By executing a particular Exhibit "A" and "B," such corporate entity shall
be deemed to have ratified this Waste Transportation and Disposal Agreement
in its entirety.
At any time during the term of an Acceptance Letter, upon the written request
of Disposer, the Broker shall: (a) supply an updated written certification
that the description previously supplied remains true and accurate; or, (b)
supply a written certification that a particular load of Waste Products
delivered to Disposer constituted a representative sample of the Waste
Products described in the Generator's Waste Material Profile Sheet; or, (c)
supply a representative sample of the Waste Products together with a written
certification of the sample's representativeness; or, (d) allow Disposer
access to the Waste Products at Broker's facility for the purpose of obtaining
one or more representative samples. Forms to be used in providing written
Waste Products descriptions, recertification of previous descriptions, or
certification of representative Waste Products samples shall be supplied by
Disposer.
3. TENDER OF DELIVERY. Broker shall tender delivery of the Waste Products to
Disposer in the manner specified in the Acceptance Letter. Broker shall,
at the same time and place, tender to Disposer those completed documents,
shipping papers or manifests as are required, for lawful transfer of the Waste
Products to Disposer, by valid and applicable statutes, ordinances, orders,
rules or regulations of the federal, state or local governments, including,
but not limited to, the Hazardous Materials Transportation Act, the Toxic
Substances Control Act and the Resource Conservation and Recovery Act of
1976.
Tender of Delivery shall be considered non -conforming if not in accordance
Form No. TVNI-55-B Broker (Rev. 8-29-88)
C 1986, MOM MANAGEMENT, INC.
`Y.
with this Section and the specifications of the Generator's Waste Material
Profile Sheet, or if not preceded by such notification as required by Section
16 (f) .
4. DISPOSER RIGHT TO INSPECTION UPON TENDER. Disposer shall have the right, but
not the obligation, to inspect, sample, analyze or test any tendered Waste
Products before accepting such Products. Failure or refusal of the Broker
to provide Disposer with access to any tendered or delivered Waste Products,
prior to Disposer's acceptance, shall be deemed a non -conforming tender or
delivery of all of the Waste Products tendered or delivered at that time and
place. Disposer's exercise of, or failure to exercise, its right hereunder
shall not operate to relieve Broker of its responsibility or liability under
this Agreement.
5. DISPOSER RIGHTS ON IMPROPER DELIVERY. If the Waste Products, any unit
thereof, or the tender of delivery fail in any respect to conform to this
Agreement, including the requirements of the Generator's Waste Material
Profile Sheet, Disposer may, at its exclusive option, (i) reject all Waste
Products tendered; or, (ii) accept all Waste Products tendered; or, (iii)
adept any unit or units of Waste Products and reject the rest. Provided,
however, if a particular unit of Waste Products is determined to be non-
conforming solely because of a patent non -conformity in the container, its
labeling or marking, which non -conformity, if present in any other tendered
container, would be visibly apparent, Disposer's option shall be limited to
accepting or rejecting the particular non -conforming unit.
Rejection of the Waste Products must be within a reasonable time after their
tender or delivery, not to exceed twenty-four (24) hours. In rejecting any
Waste Products, Disposer shall orally notify the Broker of the manner in which
the Waste Products or the ter
der)of delivery are non -conforming, such notice
to be followed by written not*e within five (5) business days.
6. ACCEPTANCE OF WASTE PROb=C Disposer shall accept any Waste Products which
are in conformance with, and which have been tendered in conformance with,
this Agreement, including the Generator's Waste Material Profile Sheet, and
may accept, as provided in Section 5, non -conforming Waste Products. If
transportation is to be provided by Disposer, Disposer shall evidence its
acceptance by removing such Waste Products from the place of tender. If
transportation to the Storage or Disposal Facility is to be provided by
Broker, Disposer shall evidence its acceptance by written notice to the
Broker, such as through signing shipping papers or the manifest tendered with
the Waste Products.
Failure of Disposer to reject the Waste Products, or any unit thereof, as
provided in Section 5 shall be deemed acceptance of all tendered Waste
Products not so rejected.
Upon acceptance of the Waste Products, Disposer shall be precluded from
rejecting those Waste Products accepted and, if acceptance of any unit of
Form No. WMI-55-B Broker (Rev. 8-29-88)
C 1986, WASTE MANAGEMENT, INC.
4
Waste Products was made with actual knowledge of a non -conformity, Disposer
shall be precluded from revoking its acceptance of such unit because of such
non -conformity. Acceptance of the Waste Products, or any unit thereof, does
not, however, impair, or operate as a waiver of, any right or remedy available
to Disposer, including revocation of acceptance, in the event the Waste
Products or their tender are later discovered to be non -conforming.
7. REVOCATION OF ACCEPTANCE. Disposer may, at any time before the condition of
the Waste Products has been materially changed (such as by treatment,
processing or disposal), revoke its acceptance of any unit or units of Waste
Products discovered to be non -conforming.
Discovery by Disposer that any unit of the Waste Products is non -conforming
for any reason shall be considered discovery that all units of such Waste
Products, accepted at the same time as the non -conforming unit, are non-
conforming for the same reasons. Provided, if a particular unit of Waste
Products is determined to be non -conforming solely because of a patent non-
conformity in the container, its labeling or marking, which non -conformity,
if present in any other accepted container, would be visibly apparent,
Disposer's option shall be limited to revoking acceptance of the particular
non -conforming unit.
Revocation must occur within a reasonable time after Disposer actually
discovers or should have discovered the non -conformity. In revoking its
acceptance of any Waste Products, Disposer shall notify the Broker of the
manner in which the Waste Products are non -conforming.
7a. BROKER'S OPTIONS IN EVENT OF RETF]CI'ION OR REVOCATION OF ACCEPTANCE. In the
event Disposer rejects or revokes its acceptance of Waste Products, and at
such time the Waste Products are in Disposer's possession or control, Broker
may, within five (5) business days after receipt of notice, notify Disposer
of Broker's intent to test the Waste Products, to verify the alleged non-
conformity, or to correct any improper containerization, marking or labeling.
Broker may, if lawfully permitted, direct Disposer to arrange for such testing
or corrections, pursuant to Broker's instructions and at Broker's cost. All
testing or corrections must be completed within twenty-one (21) days of
Broker's receipt of the rejection or revocation notice. During the period
of any testing or corrections the duty of Disposer with respect to the Waste
Products shall be that of a bailee for hire.
Upon mutual agreement of the parties that the Waste Products or any unit are
not non -conforming for the reasons specified in Disposer's notice, the notice
of rejection or revocation as to such Waste Products or unit shall be deemed
null and void as of the time of its original issuance.
8. DISPOSER OPTIONS AS TO RIGHTFULLY RFJBCIED OR REVOKED WASTE PRODUCT'S. If
Disposer rejects or revokes its acceptance of all or any units of Waste
Products, and at such time the Waste Products are in Disposer's possession
or control, Disposer and Broker shall, in good faith, attempt to amend the
Form No. VM -55-B Broker (Rev. 8-29-88)
C 1986, WASTE MANAGEMFNP, INC.
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Generator's Waste Material Profile Sheet and/or the Acceptance Letter to
provide for handling of the non -conforming materials. If the parties cannot,
within a reasonable time after rejection or revocation (including
any time provided for correction or testing in sec, -tion 7a) , agree on necessary
amendments, Broker shall make prompt arrangements for the removal of the non-
conforming materials from the Storage or Disposal Facility to another lawful
place of disposition.
Broker agrees to pay Disposer its reasonable expenses and charges for
handling, loading, stowing, preparing for transport, transporting, storing
and caring for any Waste Products returned to Broker pursuant to this Sec, -tion.
LOADING AND TRANSPORTATION OF WASTE PRODUCTS. If the Acceptance Letter
specifies that Disposer is to provide loading or transportation services,
Disposer shall load or stow and transport Waste Products to the Storage or
Disposal Facility herein specified. In the aforesaid event, as between the
parties, selection of transportation vehicles or vessels, times of travel and
routes shall be solely determined by Disposer. In selecting transportation
vehicles or vessels compatible with the Waste Products, Disposer shall rely
on Broker's description of the Waste Products.
10. STORAGE AND DISPOSAL. Disposer shall dispose of the Waste Products at the
particular facility or facilities, referred to herein as "the Disposal
Facility," identified in the Acceptance Letter. Disposer shall utilize those
general storage, treatment, processing and disposal methods specified in the
Acceptance Letter; however, as between the parties, Disposer shall be solely
responsible for determining the specific times and techniques for storage,
processing, treatment and disposal of the Waste Products. In determining
such techniques, Disposer shall rely on Broker's description of the Waste
Products.
If the Acceptance Letter specifies that Disposer is to provide interim storage
of the Waste Products at a "Storage Facility," prior to transportation of the
Waste Products to the Disposal Facility, Disposer shall store such Waste
Products at such Storage Facility for a period not to exceed ninety (90) days,
unless some other period is specified in the Acceptance Letter.
Disposer may use, distribute or sell any of the Waste Products, or any
component or residue thereof.
11. TITLE To WASTE PRODUCTS. At the time Disposer accepts the Waste Products and
takes possession and control thereover, title, risk of loss and all other
incidents of ownership to the Waste Products shall be transferred from the
Broker and vested in Disposer.
A justified revocation of acceptance by Disposer reverts title to the Broker,
including risk of loss and all other incidents of ownership, at the time such
revocation of acceptance is communicated to the Broker.
12. TERM. The term of this Agreement shall be as specified in the Acceptance
Form No. WMI-55-B Broker (Rev. 8-29-88)
C 1986, WASTE MANAGEMENT, INC.
Letter, to commence on the date of execution of such document, as provided
in Section 2.
13. RIGHT TO TEEM=. Either party may terminate this Agreement if the other
party (i) has been adjudicated a bankrupt, or (ii) has filed a voluntary
petition in bankruptcy, or (iii) has made an assignment for the benefit of
creditors, or (iv) a receiver has been appointed for such party. Termination
pursuant to this paragraph shall be effective for performance remaining under
any and all Acceptance Letter.
The Broker may terminate this Agreement, with respect to performance remaining
under an identified Acceptance Letter, if, at any time after execution of such
document, the specified Storage or Disposal Facility fails to obtain, or
maintain as valid, any license, permit or approval required to allow lawful
acceptance and storage, treatment, processing and disposal of the Waste
Products at such Facility.
Termination as provided above, or as allowed by Section 22, shall be by notice
from the terminating party to the other party, specifying the reason therefor
and the effective date thereof, which shall be not less than five (5) days
after the date of the notice.
Either party may terminate this Agreement without cause, with respect to
performance remaining under an identified Acceptance Letter by notice from
the terminating party to the other party specifying the effective date of
termination which shall be not less than thirty (30) days after receipt of
the notice by the non -terminating party.
The right of termination hereunder is in addition to, and not in lieu of, any
right of a party to camel this Agreement for breach of its terms or
conditions.
14. C94PWSATION. For all of the Waste Products transported, stored, treated or
disposed of by Disposer, the Broker shall pay Disposer a fee, determined in
accordance with the Acceptance Letter. Disposer shall measure the Waste
Products for the purpose of computing fees. Disposer determinations so made
shall govern unless proved to be in error by Broker.
Fees specified in the Acceptance Letter shall not be altered during the term
of this Agreement except as follows:
(a) Disposer may, on the first day of any calendar quarter, with thirty (30)
days written notice to Broker, increase or decrease fees specified in
the Acceptance Letter. If any Waste Products, to which such fee
alterations apply, are delivered to Disposer more than thirty (30) days
after Broker's receipt of this notice, Broker shall be deemed to have
accepted such fee alterations and the Acceptance Letter shall be deemed
amended in such respect.
Form No. MI -55-B Broker (Rev. 8-29-88)
C 1986, WASTE MANAGEMERP, INC.
7
(b) If legislation or regulations, first implemented after date of execution
of the Acceptance Letter, impose taxes, tariffs, fees, surcharges or
other charges upon the transportation, storage,
processing, treatment of disposal of the Waste Products, the Broker
shall reimburse the Disposer for such charges upon the Disposer's
submission of an invoice stating that such charges have been levied or
paid.
The Disposer shall submit statements to the Broker which shall be paid
by the Broker not later than thirty (30) days from date of invoice.
Interest on overdue balances may be assessed monthly at the rate of ten
percent (10%) per annum. In the event any of the invoice amount is
Disposer shall retain copies of such statements for a period of at least
five (5) years, as a record of disposal.
15. DISPOSER WARRANTIES. Disposer warrants and represents to the Broker that:
(a) Disposer understands the currently known hazards and risks which are
presented to human beings, property and the environment in the handling,
transportation, storage, treatment, processing and disposal of the Waste
Products as they have been described by the Broker in the Generator's
Waste Material Profile Sheet; and
(b) Disposer is engaged in the business of transportation, storage and
disposal of industrial and other wastes, and has developed the requisite
expertise for the handling, transportation, storage, treatment,
processing and disposal of such; and
(c) Disposer will handle, load, stow, transport, store, treat, process and
dispose of the Waste Products in a safe and workmanlike manner and in
full compliance with all valid and applicable statutes, ordinances,
orders, rules and regulations of the federal, state and local
governments in whose jurisdictions such activities are performed under
this Agreement; and
(d) Any and all vehicles or vessels, Waste Products containers and personnel
to be provided by Disposer in the performance of this Agreement have
obtained or will obtain all permits, licenses, certificates or approvals
required to fly with valid and applicable statutes, ordinances,
orders, rules and regulations of the federal, state and local
governments.
(e) The Storage or Disposal Facility (or Facilities) described in the
Acceptance Letter has been issued, as of the date of execution of such
document, all permits, licenses, certificates or approvals, required
by valid and applicable statutes, ordinances, orders, rules and
regulations of the federal, state and local governments in which such
Form No. VDD: -55-B Broker (Rev. 8-29-88)
C 1986, WASTE MANAGEMENT, INC.
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Facility is located, necessary to allow such Facility to accept and
store, treat, process and dispose of the Waste Products as described
by the Broker in the Generator's Waste Material Profile Sheet. Disposer
shall provide Broker with reasonable advance notice if any such permit,
license, certificate or approval is to expire and not be renewed during
the term of an Acceptance Letter, or becomes the subject of judicial
or administrative action seeking revocation or
suspension. such notice shall also be provided if Disposer determines
not to seek any necessary permit, license, certificate of approval which
becomes required after execution of an Acceptance Letter.
16. BROI<ER WAIUW TIES. The Broker warrants and represents to Disposer that:
(a) The description of the Waste Products in the Generator's Waste Material
Profile Sheet is true and correct in all material respects, fairly
advises Disposer of the, hazards and risks known by the Broker to be
incident to the handling, transportation, storage, treatment, processing
and disposal of the Waste Products, and is otherwise in full compliance
with all materials description requirements of valid and applicable
statutes, ordinances, orders, rules and regulations of the federal,
state and local governments in whose jurisdictions such Waste Products
are to be handled, transported, stored, treated, processed or disposed;
and
(b) Waste Products tendered to Disposer will conform to the descriptions
and specifications contained in the Generator's Waste Material Profile
Sheet and the Acceptance Letter; and
(c) If Broker receives information, during the term of any Acceptance
Letter, that Waste Products described in a Generator's Waste Material
Profile Sheet, or some component of such Products, present or may
present a hazard or risk to persons or the environment, which was not
disclosed in the Generator's Waste Material Profile'Sheet, Broker shall
promptly report such information to Disposer. Such information shall
include, but not be limited to, any relevant notification of substantial
risk required to be given by Broker pursuant to section 8(e) of the
Toxic Substances Control Act.
(d) If any load of Waste Products, tendered to Disposer for transportation
in a single transportation vehicle, contains a reportable quantity of
one or more hazardous substances, as provided in section 102 of the
Federal Cmiprehensive Environmental Response, Compensation, and
Liability Act of 1980, or regulations adopted thereunder, Broker will,
prior to tendering such load to Disposer, provide the person in charge
of the Disposer transport vehicle with written notice that the load
contains a reportable quantity of such hazardous substance(s),
identifying the known or estimated quantity of each such hazardous
substance present.
Form No. WMI-55-B Broker (Rev. 8-29-88)
C 1986, WASTE MANAGEMENT, INC.
V]
(e) Broker will prepare the Waste Products for transportation and tender
to Disposer in accordance with all valid and applicable statutes,
ordinances, orders, rules and regulations of the federal, state and
local governments in whose jurisdiction such Waste Products are to be
tendered to Disposer, pertaining to: (i) container specifications for
any container not supplied by Disposer; and (ii) marking and labeling
of all containers.
(f) If regulations promulgated or revised under Section 3001 of the Resource
Conservation and Recovery Act of 1976 (P.L. 94-580) identify the Waste
Products as "hazardous waste," either by characteristics or listing,
the Broker, prior to tendering any Waste Products to Disposer, has filed
or will file with the appropriate governmental agency the preliminary
notification required by Sec. -tion 3010(a) of the above Act, and provide
Disposer with evidence thereof.
(g) The Broker has sole title to Waste Products which will be tendered to
Disposer, and is under no legal restraint, statutory, regulatory,
administrative or judicial, which prohibits the transfer of possession
or title to such Waste Products to Disposer.
17. INDEMNIFICATION.
(a) Disposer agrees to indemnify and hold the Broker harmless:
(1) for judgments, f inal. decisions, settlements, reasonable attorneys'
fees, and other litigation expenses in an administrative or
judicial action against the Broker for claimed personal injuries
or physical damage to property (other than the facility described
in the Acceptance Letter, the proximate cause of which is the so 4 �tSR1
negligence or intentional conduct of Disposer, its agents, or
employees.
(2) for judgments, final decisions, settlements, reasonable attorneys'
fees, and other litigation expenses in an administrative or
judicial action under federal or state environmental law, or
common law, associated with cleanup of all or part of the facility
described in the Acceptance Letter, the sole proximate cause of
which is Disposer's becoming subject to removal or remedial
actions under CERQA or comparable federal or state law violation
of applicable remedial provisions of federal or state
environmental laws; and
(3) for judgments, settlements, reasonable attorneys' fees, and other
litigation expenses in an action against the Broker based upon
breach of any warranty under this Agreement by Disposer, its
agents or employees.
(b) The Broker shall give written notice to Disposer of a claim for
Form No. WMI-55-B Broker (Rev. 8-29-88)
C 1986, WASPS MANAGIIIESTN r, INC.
10
indemnification under this provision within 30 days following Broker's
first knowledge of the event or occurrence which gives rise to that
claim. Upon receipt of notice, Disposer shall retain counsel to defend
the Broker and will pay such counsel reasonable attorney's fees and
other litigation expenses.
(c) The obligation by Disposer to indemnify the Broker shall not apply (i)
to events or occurrences involving wastes not conforming to the
descriptions and specifications contained in the Generator's Waste
Material Profile Sheet under this Agreement; and (ii) in the event
Broker fails to give timely notice under subparagraph (b).
(d) Broker agrees to indemnify and hold the Disposer harmless:
(1) for judgments, f inal decisions, settlements, reasonable attorneys'
fees, and other litigation expenses in an administrative or
judicial action against the Disposer for claimed personal injuries
or physical damage to property (other than the facility described
�the Acceptance Letter), the proximate cause of which is the
she negligence or intentional conduct of Broker, its agents, or
employees; and
(2) for judgments, f inal decisions, settlements, reasonable attorneys'
fees, and other litigation expenses in an administrative or
judicial action under federal or state environmental laws, or
common law, associated with cleanup of all or part of the facility
described in the Acceptance Letter, the sole proximate cause of
which is Broker's violation of applicable remedial provisions of
federal or state environmental laws; and
(3) for judgments, settlements, reasonable attorneys' fees, and other
litigation expenses in an action against the Disposer based upon
breach of any warranty under this Agreement by Broker, its agents
or employees.
(e) The Disposer shall give written notice to Broker of a claim for
indemnification under this provision within thirty (30) days following
Disposer's first knowledge of the event or occurrence which gives rise
to that claim. Upon receipt of notice, Broker shall retain counsel to
defend the Disposer and will pay such counsel reasonable attorneys' fees
and other litigation expenses.
(f) The obligation by Broker to indemnify the Disposer shall not apply in
the event Disposer fails to give timely notice under sub --
paragraph (e)
18. INSURANCE. Disposer shall procure and maintain, at its expense, during the
term of this Agreement, at least the following insurance:
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(a) Worker's Compensation
(b) Employer's Liability
(c) Public Liability
(bodily injury & property damage)
(d) Automobile Liability
(bodily injury & property damage)
statutory
$500,000 each occurrence
$15,000,000 combined
single limit
$15,000,000 combined
single limit
Public Liability Insurance shall include coverage for completed operations
and contractual liability under this Agreement with respect to sudden and
accidental occurrences.
Each contract of insurance, and certificate of insurance, shall provide that
said insurance shall not be cancelled or materially altered until at least
ten (10) days after written notice is received by the Broker. Disposer agrees
to furnish insurance certificates, showing Disposer's compliance with the
above requirements, to the Broker before Disposer commences work hereunder.
In the event Disposer is required by law to obtain environmental impairment
liability insurance for non -sudden and accidental occurrences at the Disposal
Facility, Disposer shall furnish Broker with a copy of the certificate of
insurance provided to the regulatory agency imposing the insurance
requirement.
19. CONFIDENTIA ,rrv. Disposer and Broker shall treat as confidential property
and not disclose to others during or subsequent to the term of this Agreement,
except as is necessary to perform this Agreement, (and then only on a
confidential basis satisfactory to both parties), any information (including
any technical information, experience or data) regarding either party's plans,
programs, plants, processes, products, costs, equipment, operations or
customers which may come within the knowledge of the parties, their officers
or their employees in the performance of this Agreement, without in each
instance securing the prior written consent of the other party.
Disposer shall also treat as confidential and shall not disclose to others,
except as required by law, information relating to the chemical composition
of the Waste Products or the quantity of Waste Products delivered to it by
Broker.
Broker shall also treat as confidential and shall not disclose to others,
except as required by law, this form of Agreement.
Nothing above, however, shall prevent either Disposer or Broker from
disclosing to others or using in any manner information which either party
Form No. W,M-55-B Broker (Rev. 8-29-88)
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can show:
(a) Has been published and has became part of the public domain other
than by acts, omissions or fault of Disposer or Broker or their
employees; or
(b) Has been furnished or made known to Disposer or Broker by third
parties (other than those acting directly or indirectly for or
on behalf of Disposer or Broker) as a matter of legal right
without restrictions on its disclosure; or
(c) Was in either party's possession prior to the disclosure thereof
by Broker or Disposer to each other.
Provided, however, neither party shall release, or cause or allow the release
of, information to the communications media, except as required by law,
concerning the existence or terms of this Agreement or any Acceptance Letter,
including identification of the Broker of the Waste Products, identification
of the Disposal Facility receiving the Waste Products, or the general
description, characteristics or constituents of the Waste Products, without
in each instance securing the prior written consent of the other party.
The foregoing obligations shall survive the termination or expiration of the
Agreement.
20. WORK ON GENERATOR'S PREMISES. Broker agrees to provide Disposer, its
employees and subcontractors a safe working environment for any work, in
performance of this Agreement, which must be undertaken on premises owned or
controlled by the Broker. While its employees or subcontractors are on
Generator's premises, Disposer will maintain strict work discipline and effect
its work in compliance with governmental laws or regulations pertaining to
occupational safety and health. Disposer, its employees and subcontractors
shall also comply with the Broker's safety procedures while on the Generator's
premises, provided such procedures are attached thereto.
21. INSPECTIONS. The Broker shall have the right to inspect and obtain, at its
expense, copies of all written licenses, permits or approvals, issued by any
governmental entity or agency to Disposer or its subcontractors which are
applicable to the performance of this Agreement and for which no claim of
business confidentiality or trade secret is asserted; to inspect and test,
at its own expense, transportation vehicles or vessels, containers or disposal
facilities provided by Disposer; and to inspect the handling, loading,
transportation, storage, treatment, processing or disposal operations
conducted by Disposer in the performance of this Agreement. Such inspections
are encouraged by Disposer, but shall not operate to relieve Disposer of its
responsibility or liability under this Agreement.
22. EXCUSE OF PERFORMANCE. The performance of this Agreement, except for the
payment of money for services already rendered, ray be suspended by either
Form No. WMI-55-B Broker (Rev. 8-29-88)
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party in the event the delivery or transportation of Waste Products by Broker,
or transportation, storage, treatment, processing or disposal of Waste
Products by Disposer are prevented by a cause or causes beyond the reasonable
control of such party. Such causes shall include, but not be limited to, acts
of God, acts of war, riot, fire, explosion, accident, flood, or sabotage; lack
of adequate fuel, power, raw materials, labor or transportation facilities;
governmental laws, regulations, requirements, orders or actions; breakage or
failure of machinery or apparatus; national defense requirements; injunctions
or restraining orders; labor trouble, strike, lockout or injunction (provided
that neither party shall be required to settle a labor dispute against its
own best judgment).
The party asserting a right to suspend performance under this Section must,
within a reasonable time after he has knowledge of the effective cause, notify
the other party of the cause for suspension, the performance suspended, and
the anticipated duration of suspension. Upon receipt of such notice advising
of a material or indefinite suspension of performance, and if such suspension
substantially impairs the value of this Agreement to him, a party may, within
a reasonable time (not to exceed thirty [30] days), terminate this Agreement
as provided in Section 13. If such notice of termination is not provided,
this Agreement will lapse with respect to any performance suspended hereunder.
The party asserting a right to suspend performance hereunder shall advise the
other party when suspending event has ended, and when performance will be
resumed.
Provided, if title to Waste Products has been transferred to Disposer,
Disposer may not suspend performance of this Agreement with respect to such
Waste Products; however, if a performance -suspending event occurs after
Disposer has taken title to Waste Products but before completion of
performance, Disposer may delegate such performance to any other persons
lawfully permitted to transport, store, treat or dispose of the Waste Products
pursuant to Section 23. In the circwnstances described above, the Broker
hereby consents to any necessary delegations for which it receives written
notice from Disposer.
23. DELEGATION AND ASSIGNMENT. Disposer may at any time delegate, orally or in
writing, the performance of the work, or any portion thereof, which is by this
Agreement undertaken by Disposer. Any such delegation shall not operate to
relieve Disposer of its responsibilities hereunder and, notwithstanding any
such delegation, Disposer shall remain obligated to the Broker in these
undertakings.
Either party may, at any time, upon written notice to the other party, assign
its riots under this agreement.
24. INDEPENDENT OONIRACIORS. Disposer is and shall perform this Agreement as an
independent contractor, and as such, shall have and maintain complete control
over all of its employees, agents, and operations. Neither Disposer nor
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anyone employed by it shall be, represent, act, purport to act or be deemed
to be the agent, representative employee or servant of the Broker.
25. NOTICE. Any notice, communication or statement required or permitted to be
given hereunder shall be in writing and deemed to have been sufficiently given
when delivered in person or by registered or certified nail, postage prepaid,
return receipt requested, to the address of the respected party below:
Kosiak Island Borough
710 Mill Bay Rd.
Kodiak, AK 99615
DISPOSER: Chemical Waste Management, Inc.
4227 Technology Drive
Fremont, California 94538-6337
Attn: District Sales Manager
Either party may, by notice to the other, change the addresses and names above
given.
26. ENTIRE AGREEMENT. This Agreement represents the entire understanding and
agreement between the parties hereto relating to the transportation, storage,
treatment, processing and disposal of Waste Products and supersedes any and
all prior agreements, whether written or oral, that may exist between the
parties regarding same. No terms, conditions, prior course or dealings,
course of performance, usage of trade, understandings, purchase orders, or
agreement purporting to modify, vary, supplement or explain any provision of
the Agreement shall be effective unless in writing, signed by representatives
of both parties authorized to amend this Agreement.
In no event shall the preprinted terms or conditions found on any Disposer
or Broker purchase or work order be considered an amendment or modification
of this Agreement, even if such documents are signed by representatives of
both parties; such preprinted terms or conditions shall be considered null
and of no effect.
27. WAIVER. Any waiver by either party of any provision or condition of this
Agreement shall not be construed or deemed to be a waiver of any other
provision or condition of this Agreement, nor a waiver of a subsequent breach
of the same provision or condition, unless such waiver be so expressed in
writing and signed by the party to be bound.
28. MISCELLANEOUS. The validity, interpretation and performance of this agreement
shall be governed and construed in accordance with the laws of the State of
e�. 41 zsn\
All paragraph headings herein are for convenience only and are in no way to
Form No. WMI-55-B Broker (Rev. 8-29-88)
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15
be construed as part of this Agreement or as a limitation of Agreement or as
a limitation of the scope of the particular section to which they refer.
If either party files any action or brings any proceedings against the other
arising out of this Agreement, the prevailing party shall be entitled to
recover reasonable attorney's fees and costs of suit.
In the event of a conflict between the terms or conditions of this Agreement
and those of the Acceptance Letter, the terms and conditions of this Agreement
shall control.
29. SEPARABILITY. If any Section, subsection, sentence or clause of this
Agreement shall be adjudged illegal, invalid or unenforceable, such
illegality, invalidity or unenforceability shall not affect the legality,
validity or enforceability of the Agreement as a whole or of any Section,
subsection, sentence or clause hereof not so adjudged.
30. The covenants and agreements contained in this Agreement shall apply to, inure
to the benefit of and be binding upon the parties hereto and upon their
respective heirs, executors, administrators, assigns and successors in
interest.
IN WITNESS MiEIZMF, the parties have caused this Agreement to be executed by their
duly authorized representatives as of the day and year first above written.
Chemical W Managemen KoBiak Island Borough
Ctle- Recdl Sales Manacrer Titl 1�
Form No. MI -55-B Broker (Rev. 8-29-88)
C 1986, WASPS MANAGEMERr, INC.
M
71• � 71' 711 11'
•1, 171• , I :1 1 ••'7t • 171' 71•
Your Waste Profile No. has been approved for ptance at Chemical Waste
Management, Inc. Is facility located ' subject
to the terms of the Waste Transportation and Disposal Bement between the Companies.
Based on the sample or description of the waste prov' ed to Chemical Waste Management,
Inc., the fee for disposal is described below. price is, however, subject to
change by chemical Waste Management, Inc. upon (30) days prior written notice
to you. Payment terms: Net thirty (30) days.
Disposer is authorized to reclaim, re
Products, their components or residues.
This Exhibit shall commence on
terminated by either party with our
notice to the other party.
DISPOSAL METHOD/DISPOSAL
LOADING AND TRANSPORTATION:
for Flatbed or End Dump Tru(
or Roll Off Trucks. Pleas
at Y
COMPENSATION:
All applicable
quoted.
and sell, distribute or use the Waste
, and shall remain in effect until
cause by thirty (30) days advance written
Waste Products are to be loaded on vehicles by Broker
d by Transporter for Flatbeds with Lift Gates, VaCUUM
L our dispatch department to schedule transportation
be invoices as imposed and are not included in the prices
Please sign and ?turn the duplicate copy of this letter to Chemical Waste Management
at the above ess, Attention: Contracts Administrator. If you have any questions
please feel f to call our office.
Thank you f9f- your continuing business.
WASTE MANAGEM NT, INC.
Signature
Title
Sales Manager
Date
ACCpt Ltr (Revised 2-5-88)
Form No. MU -55-B Broker (Rev. 8-29-88)
C 1986, WASPS MANAGEMENT, INC.
17
EXHIBIT B
AUTHORIZED
This Exhibit, being attached to, and forming part of that certain "Waste
Transportation and Disposal Agreement" entered into by the undersigned parties on
February 1. 1991, establishes the identities of those persons authorized to execute
Acceptance Letter on behalf of the parties, to -wit:
Jerome M. Selby, Borough Mayor
Linda L. Freed, Acting Borough Mayor
FOR DISPOSER•
District Sales Manager
Regional Sales Manager
National Accounts Manager
Regional Vice President
or Regional Manager
Senior Vice President
President
Form No. WMI-55-B Broker (Rev. 8-29-88)
C 1986, WASTE MANAGEMENT, INC.
up to $ 300,000
up to $1,000,000
up to $1,000,000
up to $1,000,000
up to $1,000,000
over $1,000,000
KoLak Island Borough
Mr. Wayne Coleman
Kodiak Island Borough
ADEC Spill Response Director
710 Mill Bay Road
Kodiak, AK 99615
Dear Mr. Coleman,
April 16, 1991
As per several telephone conversations between yourself and
I, we have come to a mutual agreement. The wording changes requested
by Mr. Bolger in sections 17 have been agreed to by the Chemical Waste
Management Inc. Legal Department. Included in this letter are
transportation price estimates, also requested by Mr. Bolger.
SEA\LAND: Origin: Kodiak, AK
Destination: Tacoma, WA
Rate: $1165.00
Fuel Surcharge: 1.9%
This price does not reflect any truck clean out, drayage,
inspection, and unloading charges. This price reflects a 40' trailer.
CWMI Trans.: Origin: Tacoma, WA
Destination: Arlington, OR
Rate: $1095.20
This price is based on a 296 miles @ $3.70 per mile charge
and does not reflect any additional charges for drayage.
I talked with Joni Matthews at ADEC and she informed me that
billing would be charged to her Department and NOT the Borough,
probably good news for all of us. I am sending you your paperwork and
manifests in tomorrow FED -EX package and hope for a April 22 sailing.
AVY&10�
R.S. Abelleira
Project Coordinator
Chemical Waste Management Inc.
cc G. Robinson, T. Pleasant
�t
a a o * u Kodiak Island Borough
o�
710 MILL BAY ROAD
KODIAK, ALASKA 99615.6340
PHONE (907) 486.5736
Yrs April 26, 1991
N 7
Mr. R. S. Abelleira, Project Coordinator
Chemical Waste Management, Inc.
19002 72nd Avenue South
Kent, WA 98032
Dear Mr. Abelleira:
Enclosed is an original and a copy of the Waste Transportation and Disposal
Agreement for the transportation and disposal of beach sediment and debris
contaminated with crude oil from the Exxon Valdez Oil Spill and cleanup efforts.
We have included the revisions to the contract as previously discussed with you and
our attorney, Mr. Joel H. Bolger. In order to clarify Section 19: Confidentiality,
please be advised that the Kodiak Island Borough may be required to release the
contract and associated documents to members of the public or to members of the
news media upon demand under the terms of the Alaska Public Records Statute.
After final signature, please provide a fully executed copy of the Agreement to:
Jerome M. Selby, Borough Mayor
Kodiak Island Borough
710 Mill Bay Road
Kodiak, Alaska 99615
Thank you for your assistance. If you have any questions, please call me.
Sincerely,
KODIAKISND BOROUGH
Lin rd
Acting Borough Mayor