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AC No. 1991-04/97)-01 Kodiak Island Borough Mr. R. S. Abelleira, Project Coordinator Chemical Waste Management, Inc. 19002 72nd Avenue South Kent, WA 98032 Dear Mr. Abelleira: 710 MILL BAY ROAD KODIAK, ALASKA 99615.6310 PHONE (907) 186.5736 April 26, 1991 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 co�rinn �9 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, KODIAK IS ND BOROUGH Linda -L- Acting Borough Mayor (Rr IVED MP 2 9 91 KODIAK ISLAND BOROUGH CLERK'S OFFICE l 7 a TABLE OF CO TENTS TO AGREEMENT Page I. AGREEMENT 1. Waste Products 1 2. Waste Product Approval Procedure 1 3. Tender of Delivery 2 4. Disposer Riot to Inspection Upon Tender 3 5. Disposer Riots on Improper Delivery 3 6. Acceptance of Waste Products 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 11. 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 fication 9 18. Insurance it 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. AUTiMZPD SIGWLTORIFS (EXHIBIT B) 18 j 1 On this 1 day of February, 1991, the parties, Koeliak 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. WASPS 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 arra 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 pRf1L = AppgML pRdCFDURI . At the time Broker requires disposal services hereunder for a particular Waste Product, Broker shall provide Disposer with a ocupleted 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 Accentarm LetteX shall be issued in duplicate and executed by the Broker and Disposer. An AcceaMCM 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 unldertaking, individually Form No. %U -55-B Broker (Rev- 8-29-88) C 1986, WASTE M NAGEME4IP, INC- 2 An Agggganoe 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 au"b*nt 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.; CRR Chemical Services; CR4 Holdings, Inc.; CWM Resource Recovery, Inc.; Hazoo International, Inc. and Oil and Solvent Process Company (OSCO). 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 Acceptanoe 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 description, or certifications Of representative Waste products samples shall be supplied by Disposer. 3. TENDER OF DUZVM. Broker shall tender delivery of the Waste Products to Disposer in the anner specified in the Ancantanoe Letter. Broker shall, at the same time and place, terrier 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 goverrmm-its, including, but not limited to, the Hazardous Materials Transportation Act, the Toxic Substances Control Act and the Resource Conservation and Recovery Act of 1976. •• - . - ... .FT^.a Form No. ma -55-B Broker (Rev. 8-29-88) C 1986, % TE KMMGEMERr, INC- 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 RIGEII'TO INSPECTION UPON TENDER. Disposer shall have the riot, 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 DUMPER 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) accept 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 mist be within a reasonable time after their tender or delivery, not to exceed; twenty-four (24) hours. In rejecting any Waste Products, Disposer shall ar+all� notify the Broker of the manner in which the Waste Products or the tender)of delivery are non -conforming, such notice to be followed by written n" within five (5) business days. 6. ACC prpNCE OF WASTE PR.2DiJCt Disposer shall accept any Waste Products which are in conformance wyth, and which have been tendered in conformance with, this Agreement, inclmding 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 terrier. 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, o � l tendered thereof, as Waste provided in Section 5 shall be deemed acceptance 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. MU -55-B Broker (Rev. 8-29-88) C 1986, WASTE MANAGEMERr, INC. 4 Waste products was made with actual knowledge of a non -conformity, Disposer shall be precluded from revok V 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 terrier are later discovered to be non -conforming. 7. REV== OF ACCEPTANCE. Disposer may, at any time before the corxiition 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 occas 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. BMKFRIS OPTIONS IN EMU OF RETDCI'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 colleted 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 ran -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 OPFIONS AS To RIGH U M RF.TfTTF7) OR PZA= 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 arein Disposer's Pto awnd ossession or control, Disposer and Broker shall, in goodfaith, Form No. W41 -55 -B Broker (Rev. 8-29-88) C 1986, WASTE m AN GE+lENP, INC. 7 5 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 Section 7a) , agree on necessary amendments, Broker shall make prwopt 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 Section. 9. JUOING AND TRANSPOiiMMCK OF WASTE PRODU=. If the Acceptance Letter specifies that Disposer is to provide loading or transportation services, Disposes 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. S'NRAGE AND DISPOSAL. Disposer shall dispose of the Waste Products at the particular facility or facilities, referredto herein as "the Disposal Facility," identified in the n nrp 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 Ancentance 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 caponent or residue thereof. 11. = To WASTE PRL'1Du=. 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 skull 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 eamiumicated to the Broker. 12.=. The term of this Agreement shall be as specified in the Acceptance Form No. Gaff -55-B Broker (Rev. 8-29-88) C 1986, WASTE MANAGEMERr, INC. Letter, to commenoe on the date of execution of such document, as provided in Section 2. 13. RIGHE TO TF TF. 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 nate this Agreement, with respect to performance remaining under an identified _A ceptapm 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 Agggptence 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 cancel this Agreement for breach of its terms or conditions. 14. CXM SATION. For all of the Waste Products transp ed, stored, treated or disposed of by Disposer, the Broker shall pay Disposer a fee, determined in accordance with the Arc ectangg 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 theAgggptoo 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 Aooe&ADM Letter shall be deemed amended in such respect. Form No. MICE -55-B Broker (Rev. 8-29-88) C 1986, WASPS MANAGEMERr, INC. (b) If legislation or regulations, first iuPlemented after date of execution of the Acceptance better, 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 chafes 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 am=. In the event any of the invoice amount is AigaitgIft, Broker shall i,mne iately notify the Disposer of such disputed amount and shall nay any undisputed amount in the time provided above Disposer shall retain copies of such statements for a period of at least five (5) years, as a record of disposal. MANTIMUMVIT (a) Disposer understands the currently known hazards and risks which are presented to human beings, property and the enviramwnt 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 arra 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 cctopliance with all valid and applicable statutes, ordinances, orders, rules arra regulations of the federal, state and local governments in whose jurisdictions such activities are performed under this Agreement; and (d) Any arra 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 comply 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 AcceI 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 goverrments in which such Form No. MU -55-B Broker (Rev. 8-29-88) C 1986, WASTE MMMIGE ERE, INC. 8 Facility is located, necessary to allow such Facility to accept and stare, 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 admirastTative 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 beccws required after execution of an Acceptance Letter. 16. MCM MMW=. 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 requireirents 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 tenderer; to Disposer will conform to the descriptions and specifications contained in the Generator's Waste Material Profile shget and the Acoeptanoe 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 sane carponent 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 prcuptly 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 mare hazardous substances, as provided in section 102 of the Federal ConVrehernsive awirormental 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. VM -55-B Broker (Rev. 8-29-88) C 1986, WASTE MANAGII'ff Ve INC. n (e) Broker will prepare the Waste Products for transportation and terrier to Dimer 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 Sec, -tion 3001 of the Resource Conservation arid 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 goverrmental agency the Preliminary notificatican required by Section 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. INDEMMCATICN. (a) Disposer agrees to indemnify and hold the Broker harmless: (1) for judgments, final 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 AgggS anoe Letter, the proximate cause which is the so� LS t negligence or intentional conduct of D' 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 cleanarp of all or part of the facility described in the Acre9t3TM7e Lotter, the sole proximate cause of which is Disposers becoming subject to removal or remedial actions under CERCiA 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 ruder this Agreement by Disposer, its agents or employees. (b) Tyne Broker shall give written notice to Disposer of a claim for Form No. M4I-55-B Broker (Rev. 8-29-88) C 1986, WASTE BAMGEMERr, 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 camsel reasonable attorney's fees and other litigation expenses. (c) The obligation by Disposer to indem fy the Broker shall not apply (i) to events or occurrences involving wastes not conforming to the descriptions and specifications contained in the Generator's Was 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 judTwnts,final 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 Epeoyees; he Acceptance Letter), the proximate cause of which is the } s l9 unegligence or intentional conduct of Broker, its agents, or and (2) for judgments, final decisions, settlements, reasonable attorneys' fees, and other litigation expenses in an administrative or judicial action unler federal or state environmental laws, or C== 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 judgV*xfts, settlements, reasonable attorneys' fees, anal 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 cau>,sel reasonable attorneys' fees and other litigation expenses - (f) The obligation by Bndcer to indemnify the Disposer shall not apply in the event Disposer fails to give timely notice under sub- paragraph (e) 18. INS==. Disposer shall procure and maintain, at its expense, during the tprm of this Acmeement, at least the following insurance: Form No. wa-55-B Broker (Rev. 8-29-88) C 1986, WASM MANAGEKWr, INC• 11 COVERAGE (a) Worker's Canpensaticn (b) Employer's Liability (c) Public Liability (bodily injury & property damage) $500,000 each occurrence $15,000,000 combined single limit (d) Automobile Liability $15,000,000 combined (bodily injury & property damage) 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 inmzmioe, 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 abode requiranents, to the Broker before Disposer cxMerx:es work hereunder. In the event Disposer is required by law to obtain environmental impairment liability insurance for neon -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 requuirec ent. 19. coNFiDERriA=. 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, exert as required by law, this farm 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. MU -55-B Broker (Rev. 8-29-88) C 1986, WASTE MM AGEMERr, INC. 12 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 riot 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 communication media, except as required by law, concerning the existence or terms of this Agreement or any Accentance 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. FORK CN GFNFRATMIS 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. Mille 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 premier, provided such procedures are attached thereto. 21. INSPECIZONS. 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 arra 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 Pte. The performance of this Agreement, except for the payment of money for services already rendered, may be suspended by either Form No. W II -55-B Broker (Rev. 8-29-88) C 1986, WASPS KU GEMERr, INC. 13 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 cyan best judgment) The party asserting a right to suspend Perfcrmannce 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 s'sPension substantially impairs the value of this Agreement to him, a party ray, 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 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 circumstances described above, the Broker hereby oosents to any necessary delegations for which it receives written notice from Disposer. 23. D Ofi AND ASSIGNNIFSTP. 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 rights under this agreement. 24. INDEPFPDENT CMURAICrM. 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 Form No. WMI-55 B Broker (Rev. 8-29-88) C 1986, W1WIE MANAGEKERr, INC. 14 anyone Toyed 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 mail, 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. 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 small the preprinted terms or conditions found on any Disposer or Braker 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. 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. ntrgQnransrrx . T111e validity, interpretation and performance of this agreement shall be governed and construed in accordance with the laws of the State of eaiiforr . a1zspn All paragraph headings herein are for convenience only and are in no way to Form No. W41 -55-B Broker (Rev. 8-29-88) C 1986, VAM MANAGEMENT, INC. 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 cut of this Agreement, the prevailing party shall be entitled to recover reasonable attorney's fees arra costs of suit. In the event of a conflict between the terms or conditions of this Agreement and those of the A evtance Letter, the terms and conditions of this Agreement shall control. 29. SEPARABILITS. 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 WHERE7DF, the parties have caused this Agreement to be executed by their duly authorized representatives as of the day and year first above written. Chemical Waste Management, Inc. BY: Title: Regional Sales Manager Farm No. W41 -55-B Broker (Rev. 8-29-88) C 1986, WASTE MUDL MU, INC. KoBiak Island Borough Titl I 16 .171v VON Z TM Dom WVyo, ' ]14 .r vw 17 r• 1 .. .,.: • 171• D. Your Waste Profile No. has been appr=vredfar at Chemical Waste Management, Inc.rs facility ed subject to the terms of the Waste Transportation and Disbetween the Companies. Based on the sample or description of the waste 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 caponents or residues. This E]chibit shall co mmnce on terminated by either party with our notice to the other party. LOADING AND TRANSPORMUICN: for Flatbed or End Dump Trus or Roll Off Trucks. Pleas at OCMPENSATICN: 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 our dispatch department to schedule transportation be invoices as imposed arra are not included in the prices Please sign t m the duplicate copy of this letter to Chemical Waste Management at the above , Attention: Contracts AcUl stratcr. If you have any questions Please feel to call our office. 'shank you f9E your continuing business. r� r� r• � la . Sales Manager Accpt Ltr (Revised 2-5-88) Form No. WMI-55-B Broker (Rev. 8-29-88) C 1986, VWIE MR GEKENT, INC. Signature Title Date �.•I.u: V Kodiak r• a 710 Mill Bay Rd- .• Dear Mr. Wayne Coleman: IslandKodiak Borough 1 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 C94, Inc. of the Northwest Facility located in Arlington, OR subject to the teras: of the Waste Transportation and Disposal Agree msnt between the Ccupanies. 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 ccmence 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 ME OD: Secure Landfill at the above facility and/or other EPA and CR4 approved facility(ies). This disposal approval will expire 01/22/1993. LOADING AND TRANspOF ATION: The Waste Products are to be loaded on vehicles by Customer for Flatbed or End Dump Trucks and by Disposer for Flatbeds withfsg�e vacuum or Roll Off Trucks. Please call our dispatch department transportation at 503 454-2620 . CU40MATION: see the atta&,ed fee s&adule. 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 or resid Sal' distribute or use the Waste Product�rQtcr Me-'� rwI rr their+s� +t'` °h a 1 zsl'+% If you have any questions Please feel free to call our office �l Thank you for your oontirmirng business. Sincerely, Chemical Waste Manageaennt, Inc. Terry Pleasant District Sales Mager 55B Aocpt Ltr (Revised 2-5-88) TDCSCtt sic�na����— TitletCC��J���' ' nat.I 450402883WW01-315-14-91 W17076CSSI 083 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. SPDCZAL NOTICE: Due to rapidly rising fuel costs brought on by the events in the Persian Gulf, effective September 4, 1990 we must increase or 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. pate includes loading time as follows: 1-9 drums - 1/2 hays 10 + drums a 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. Demtnxrege = $70.00 per hour after first hour. Bin Pantals: $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 Prices are for isanhspar'taion ug. 2. Ptonly. A seperats disposal price schedule is attachT. 2. 3. Prices apply to drum sizes 30 - 55 gallon. 4. Transportation cost far one pallet, 4 x 4 feet or smaller, is equivalent to four(4) drums. - 45,000 pound Per flatbed. _ _ 5. Apple aMWMM weightto 6. Applicable regulatory Fees are additional and will per established lid Bulk road price 7. LTL Rate will prevail up to Total Truckload Rate Paz' for specific area. ply contact LTT, Coordinator - 9. Advance notificaticn of lift -gate equipment is required• 9. Per Diems(ovmr night mlbsistsnce charge): $60.00 pet.night for all trips requiring either 15 hours of work in a 24 hour period cr mere than 10 hays of actual driving time in a 24 hour period. �, large volume projects or rail movement 10. For specialized transportationrive at (206) 251-6227 in our rates, please contact your local customer service � Kent, Waad gtcn sales office. C30 Mr. Wayne Coleman April 16, 1991 Kodiak Island Borough ADEC Spill Response Director 710 Mill Bay Road Kodiak, AK 99615 Dear Mr. Coleman, As per several telephone conversations between yourself and 1, 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 Fuat 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 Q11t1Qation: 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. R.S. Abelleira Project Coordinator Chemical Waste Management Inc. cc G. Robinson, T. Pleasant 17 •' Aa• r n �� • Iy,, This Exhibit, being attached to and forming part of that certain rrWaste Transportation and Disposal Agreement" entered into by the undersigned parties on Februa 1. 1991, establishes the identities of those persons authorized to execute pocentaioe letter on behalf of the parties, to -Wit: Jerome M. Selby, Borough Mayor Linda L. Freed, Acting Borough Mayor District Sales Manager Regional Sales Manager National Accounts Manager Regional Vice President or Regional Manager Senior Vice President President Chemical Waste Management, Inc. By: Farm No. WII-55-B Broker (Rev, 8-29-88) C 1986, WASTE MANAGEM IT, 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