HomeMy WebLinkAboutMason County Garbage & Recycling - Interlocal Agreement �aN- J
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MASON COUNTY
LONG HAUL CONTRACT
WITH
MASON COUNTY GARBAGE &
RECYCLING
TABLE OF CONTENTS
PAGE
ARTICLEI. DEFINITIONS.................................................................................................1
ARTICLE 2. GENERAL PROVISIONS...................................................................................6
Section2.1 Law Applicable...................................................................................... 6
Section 2.2 Law Incorporated by Reference............................................................ 6
Section 2.3 Entire and Complete Agreement.......................................................... 6
Section2.4 Severability............................................................................................7
Section 2.5 Time of Essence .................................................................................... 7
Section 2.6 Waiver of Provisions.............................................................................. 7
Section2.7 Access.................................................................................................... 7
Section 2.8 No Third-Party Beneficiaries.................................................................7
Section2.9 Personal Liability...................................................................................7
Section 2.10 Comprehensive Contract......................................................................8
Section 2.11 Subsidiary Contracts ............................................................................. 8
Section2.12 Notices.................................................................................................. 8
Section 2.13 Article,Section and Subsection References.......................................... 9
Section 2.14 Amendment or Waiver............... ...................................................... ... 9
Section 2.15 Contract Execution................................................................................ 9
ARTICLE 3. INDEPENDENT CONTRACTOR.........................................................................9
Section 3.1 Contractor as Independent Contractor................................................. 9
Section 3.2 Contractor's Control of Project..........................................................:.. 9
ARTICLE4. SUBCONTRACTORS......................................................................................10
Section 4,1 Rejection of Subcontractors................................................................ 10
Section4.2 Assignment of Subcontractors............................................................ 10
ARTICLE S. CONTRACTOR AND COUNTY REPRESENTATIVES ...........................................11
Section 5.1 Representatives................................................................................... 11
Section 5.2 Contractor Representative.................................................................. 11
Section 5.3 County Representative........................................................................ 11
ARTICLE 6. CONTRACTOR RESPONSIBILITIES,REPRESENTATIONS AND WARRANTIES......11
Section6.1 General................................................................................................ 11
Section 6.2 Commencement of Service................................................................. 12
Section 6.3 Facilities; Replacement or Repair........................................................ 12
Section 6.4 Financial Guarantee of Contract Performance................................... 13
Section 6.5 Permits, Licenses, Royalties................................................................ 14
Section 6.6 Taxes and Fees..................................................................................... 15
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Section 6.7 Compliance with Law; Documentation;
Confidential Business Records............................................................ 15
Section 6.8 Records; Monthly Report.................................................................... 16
Section 6.9 Accidents; Complaints....................................
Section 6.10 Payment of Subcontractors and Laborers........................................... 18
Section 6.11 Employment Discrimination ............................................................... 18
Section 6.12 Scheduling; Management; Quality of Performance........................... 18
Section 6.13 Representations and Warranties of the Contractor............................ 18
ARTICLE 7 COUNTY RESPONSIBILITIES, REPRESENTATIONS AND WARRANTIES...............20
Section7.1 General................................................................................................20
Section 7.2 Waste Flow; Flow Control................................................................... 20
Section 7.3 Payment; Estimates............................................................................. 20
Section 7.4 Cooperation with Contractor.............................................................. 20
Section7.5 Disputes............................................................................................... 21
Section 7.6 Access to Transfer Station; Days and Hours
OfOperation ....................................................................................... 21
Section 7.7 Location of Transfer Station................................................................ 21
Section7.8 6ela{ ef3ervices.. XLLt�pl;7„1� 1SfiL
Section 7.9 Representations and Warranties of County........................................ 21
ARTICLE 8. CONTRACTOR COMPENSTATION..................................................................22
Section8.1 Contractor Compensation................................................................... 22
Section 8.2 Annual Rate Adjustment..................................................................... 23
Section 8.3 Compensation Decreases.................................................................... 25
Section 8.4 Other Compensation Adjustments or Charges................................... 25
Section8.5 Payment.............................................................................................. 26
ARTICLE 9. ALLOCATION OF RISK;UNCONTROLLABLE CIRCUMSTANCES.........................26
Section 9.1 Contractor Reliance............................................................................. 26
Section 9.2 County Disclaimer............................................................................... 27
Section 9.3 Uncontrollable Circumstances............................................................ 27
ARTICLE 10. OWNERSHIP; INSPECTION OF WASTE; UNACCEPTABLE WASTE.....................28
Section10.1 Ownership........................................................................................... 28
Section 10.2 Transfer Station Inspection Program................................................... 28
Section 10.3 Waste Inspection at Disposal Site; Handling of
Suspected Unacceptable Waste.......................................................... 28
Section 10.4 Liability for Testing, Inspecting, Handling and/or
Disposing of Unacceptable Waste ...................................................... 29
Section 10.5 Notice of Change in Law-Unacceptable Waste................................... 30
ARTICLE 11. INDEMNIFICATION •..••••••...........................••30
Section 11.1 Contractor's Indemnification of County.............................................. 30
Section 11.2 Participation by County-No Waiver.................................................... 31
Section 11.3 Survival of Contractor's Indemnity Obligations.................................. 31
Section 11.4 Indemnity by Subcontractors.............................................................. 31
ARTICLE 12. CONTRACTOR AND COUNTY LIABILITY INSURANCE......................................31
Section12.1 Insurance............................................................................................. 31
Section 12.2 Minimum Insurance Requirements.................................................... 32
Section 12.3 Certificate of Insurance....................................................................... 32
Section 12.4 Basic Stipulations................................................................................ 33
ARTICLE 13. COORDINATION MEETINGS..........................................................................35
Section 13.1 Initial Coordination Meeting............................................................... 35
Section 13.2 Periodic Coordination Meetings and Reports..................................... 35
ARTICLE 14. ADDITIONAL OR DELETED WORK.................................................................36
Section 14.1 Payment or Credit for Additional Services.......................................... 36
Section14.2 Additional Work.................................................................................. 36
ARTICLE IS. DEFAULTS IN PERFORMANCE OF THE CONTRACT/
TERMINATIONOF CONTRACT......................................................................36
r Section 15.1 Contractor Default.............................................................................. 36
Section 15.2 Consequences of Contractor Defaults................................................38
Section15.3 Termination......................................................................................... 39
Section 15.4 Default Procedure............................................................................... 40
Section 15.5 County Default.................................................................................... 40
Section 15.6 Contractor's Bankruptcy/Receivership...............................................41
Section 15,7 No Waiver by County.......................................................................... 42
ARTICLE 16. DISPUTE RESOLUTION .................................................................................42
Section 16.1 Good-Faith Negotiation;Arbitration................................................... 42
Section 16.2 Initiation of Arbitration....................................................................... 42
Section 16.3 Selection and Qualification of Arbitrators.......................................... 43
Section 16.4 Powers of Arbitrator............................................................................43
Section 16.5 Conduct of Proceedings...................................................................... 43
Section16.6 Decision...............................................................................................44
Section 16.7 Provisional Remedies.......................................................................... 44
Section 16.8 Final Remedies;Arbitrator's Fees....................................................... 44
Section 16.9 No Consolidation................................................................................. 45
Section 16.10 Expedited Procedures......................................................................... 45
Section16.11 Venue.................................................................................................. 45
Section16.12 Attorney Fees......................................................................................45
Section16.13 Standing.............................................................................................. 45
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ARTICLE 17. SUCCESSORS;ASSIGNMENT.........................................................................45
Section 17.1 Contractor Delegation......................................................................... 45
Section 17.2 Assignment.......................................................................................... 45
Section 17.3 Change in Control or Ownership......................................................... 45
Section 17.4 Binding Effect...................................................................................... 46
ARTICLE 18. DISSOLUTION OF THE COUNTY AND SUCCESSOR
TOTHE COUNTY..........................................................................................46
ARTICLE 19. TERM;OPTION TO RENEW...........................................................................47
Section19.1 Term .................................................................................................... 47
Section 19.2 Option to Renew................................................................................. 47
EXHIBITS
APERFORMANCE BOND........................................................................................ 49
BCERTIFICATE OF INSURANCE.............................................................................. 50
C TECHNICAL REQUIREMENTS.............................................................................. 51
D ALTERNATE OPERATIONS AND FACILITIES PLAN................................................ 54
E EMERGENCY OPERATIONS PLAN........................................................................ 55
F FUEL ADJUSTMENT CHART................................................................................ 56
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CONTRACT
This Contract is made and entered into by and between Mason County, a political subdivision of
the State of Washington (the "County") and Mason County Garbage, inc. (the "Contractor").
RECITALS
(a) In accordance with RCW 36.58.050 the Contractor has been selected to provide
for the Term of the Contract, all Equipment and personnel to accept Acceptable Waste in loaded
Trailers at the Transfer Station and to Transport that Acceptable Waste to a Disposal Site for the
County.
(b) The county's authorization to enter Into this Contract is evidenced by the approval
of the Board of Mason County Commissioners on February 13, 2024.
1 The Contractor's authorization to enter into this Contract is evidenced by signing
this Contract.
ARTICLE 1
iii.7 Definitions.1 For the purposes of this Contract,the following terms shall have the
following meanings:
"Acceptable Waste" means all putrescible and non-putrescible waste including but not
limited to garbage, rubbish, refuse, ashes, paper, and cardboard; plant and grass clippings and
leaves; commercial, industrial, demolition and construction wastes; wood waste; discarded or
abandoned vehicles or parts thereof; discarded home and industrial appliances; manure,
vegetable or animal solid and semisolid wastes and dead animals; Household Hazardous Waste;
and Medical Waste, and excluding Excluded Waste and Unacceptable Waste. The term includes
other materials and substances that may in the future be included in the definition of "solid
waste", or any successor term, in a Change in Law (as defined below):
"Change In Law" means any change in state or local fees, taxes, or other similar
charges applicable to the Services'.
(b) Notwithstanding the forgoing,the following shall not constitute a Change
of Law for purposes of this Contract:
(i) the adoption of, or change, amendment, or modification to, any
federal, state, local or any other law which imposes or increases a tax, fee, or charge upon
business activities generally, or certain classes of businesses activities generally,and which is not
specifically directed at solid waste transportation business activities to the exclusion of other
businesses activities not directly related to solid waste;
(li) any application of or change in interpretation of the provisions of RCW
36.58.090(8), or its successor or the statutes referred to therein (i.e., chapters 39.12, 39.19 and
39.25 RCW).
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"City" means the incorporated City of Shelton in Mason County that participates in
the Comprehensive Solid Waste Management Plan and authorizes Mason County to designate
disposal sites for Acceptable Waste originating in the city.
"Comprehensive Solid Waste Management. Plan" means Mason County's
Comprehensive Solid Waste Management Plan adopted in accordance with Chapter 70.95 RCW,
as amended.
"Consumer Price Index"or"CPI" means the Consumer Price Index for All Urban
Consumers—West Region, All Urban Consumers,West Region All Items, 1982-1984=100-
CUUR0400SA0, as published by the Bureau of Labor Statistics
http://www.bls.gov/coi/home.htm) or such other appropriate index as may be mutually agreed
upon by the parties in writing.
"Contract"means this Contract regarding Solid Waste Export services for Mason
County and the bond, letters of credit or other performance guarantees required under
Section 6.4,the Pricing Form,Specifications, and any and all appendices, attachments,
exhibits, amendments, change orders or modifications of the foregoing documents agreed
to by the parties in writing.
"Contractor" means Mason County Garbage Company, a Washington corporation;
selected to provide solid waste Transportation services in accordance with this Contract, its
f successors or assigns and as applicable,the Contractor's officers, employees, agents, and
subcontractors.
"County" means Mason County,a political subdivision of the State of Washington.
"Disposal Site" means the County contracted landfill or other alternate Disposal Site or
facility used for the final treatment, utilization, processing and/or deposit of any Acceptable
Waste received and transported by Contractor under this Contract.
"Equipment" means any personal property provided in accordance with the
Specifications and owned, leased,furnished,operated, or used by the Contractor to carry out
the provisions of this Contract, including, but not limited to,Trailers,trucks,and scale readers.
"Excluded Waste" means waste that:0
(a) is prohibited from acceptance at the Landfill by state,federal or local law,
regulation, rule,code, ordinance, order or permit condition, or by directive of any
governmental agency with jurisdiction to prohibit such acceptance;
(b) is or contains Hazardous Waste(as defined below), provided that any such
Hazardous Waste the acceptance of which at the Landfill is permitted by applicable law or
permit,or an exemption,exclusion,or variance thereto issued by a governmental entity with
jurisdiction,shall not be an "Excluded Waste".
(c) Excluded Waste shall include Unacceptable Waste as defined herein
"Hazardous Waste"means any waste, material,or substance which is:
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(a) defined as hazardous by 40 CFR Part 261, and regulated as hazardous waste
by the United States Environmental Protection Agency underSubtitle CoftheResource
Conservation and Recovery Act of 1976,42 U.S.C.Section 2601 et se . the Comprehensive
Environmental response, Compensation and Liability Act,42 U.S.C. Section 9601 et secl., as
amended by the Superfund Amendments and Reauthorization Act("SARA") of 1986; or any
other federal statute or regulation governing the treatment,storage, handling, or disposal of
waste,• materials or substances, which imposes special handling or disposal requirements
similar to those required by Subtitle C of RCRA; or
(b) defined as dangerous or extremely hazardous by Chapter 173-303 or 173-340
WAC and regulated as dangerous waste or extremely hazardous waste by the Washington
Department of Ecology undertheState Hazardous Waste Management Act,the Model Toxic
Control Act,Chapter 70A.300 RCW, or any other Washington State Statute or regulation
governing the treatment,storage, handling or disposal of wastes, materials or substances,
which imposes special handling requirements similar to those required by Chapter 70A.300
RCW.
Certain waste that is not as of the effective date of this Contract included in this
definition may after that date come within its scope as determined by a government entity with
jurisdiction;certain otherwastethat iswithinthe definition may cease to be so included.
Accordingly, any waste, material or substance shall be deemed Hazardous Waste at the time,
but only so long as and to the extent that it is included in the definition of Hazardous Waste set
forth above.
"Household Hazardous Waste" means"moderate-risk waste' as defined in RCW
70A.3O0.010(13),as amended, or"Household Hazardous Waste"as defined in WAC 173-303-
071(3)(c),asamended.
"Instructions to Bidders" means the instructions issued by Mason County as part of their
bid documents for services under this Contract.
"Maximum Payload" means the maximum weight of waste (in tons)that may be loaded
into a trailer without exceeding the maximum legal gross vehicle weight and axle loading
requirements under the loading conditions.
"Medical Waste means noninfectious and/or non-injurious waste or treated and
properly packaged infectious and/or injurious waste originating in a medical, veterinary or
intermediate care facility which is generated in the diagnosis,treatment, or immunization of
human beings or animals, in research pertaining thereto, or in thereto, or in the production or
testing of biologicals and that may be deposited in the general solid waste stream under federal,
state and Mason County laws and regulations including,but not limited to,the regulations of
the Mason County's Health District or Department;the term does not include infectious waste
originating in a medical,veterinary or intermediate care facility that has not been treated and
may be deposited in the general solid waste stream under applicable federal,state or Mason
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County laws or regulations, including but not limited to,the Mason County's Health District
regulations. As used above,the term "biologicals" means preparations made from living
organisms, and their products, such as vaccines and cultures,treating or immunizing humans or i
animals or in research pertaining thereto.
"Minimum Functional Standards" means the Washington State Minimum Functional
standards for Solid Waste Handling set forth in Chapter 173-304 WAC,as amended.
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"Person"or"Persons" means without limitation,any individual,firm,corporation,
association, partnership, consortium,jointventure, entity,government agency or unit of
government.
"Pro ect" means any and all services, matters and things thatthe Contract requiresto be j
done, kept, performed,and furnished by the Contractor and by the County, respectively.
"RCW" means Revised Code of Washington.
"Representative" means depending on the context,the authorized representative of the
County or the Contractor designated in accordance with Article S..
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"Specifications" means the technical requirements which are attached to this Contract
as Exhibit C and incorporated herein by this reference.
"State/Local Solid Waste Handling Fee" means a fee,tax,surcharge, or similar charge on
solid waste handling services, including but not limited to Transportation services, imposed by
any state, regional or local government or government agency;the term does not include
federally imposed fees,taxes,surcharges, or other charges levied equally on solid waste
handling in all states"
"Surety" means the Person providing a bond or letter of credit required under Section
6.4 guaranteeing or providing the funds to guarantee performance of the Contractor's
obligations under this Contract.The qualifications required of a Surety are set forth in Section
6.4.
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"Term" or"Term of Contract" means the term of this contract set forth in Article 19,
including any extensions thereof.
""Transfer Station" means the site designated pursuant to Section 7.7 at which waste is
received and loaded into Trailers.
"Trailer" means a transfer trailer or intermodal shipping container on a chassis.A double
trailer or other multiple box trailer shall be considered one Trailer for purposes of this Contract.
"Transport"or"Transportation" means but is not limited to the transportation of Trailers
to and from the Transfer Station and the Disposal Site and includes but is not limited to the
storage and handling of Trailers at any transfer facility or other facilities used by the Contractor
to deliver waste to a Disposal Site.
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"Unacceptable Waste" means:
(a) Hazardous Waste;
(b) Radioactive waste or materials or explosive materials;
(c) Sewage sludge, human waste, septic tank, and cesspool pumping's; and
(d) Any material,the transportation or handling of which would constitute a
Violation of any applicable state or federal law pertaining to health,safety or the environment,
whether enacted prior to or subsequent to execution of the Contract.
"Uncontrollable Circumstance" means:
(a) any act or event that has had or may reasonably be expected to have
a material adverse effect on the rights or obligations of a party to this Contract,, if that act or
event is beyond the reasonable control of the party relying thereon as justification for not
performing an obligation or complying with any condition required of that party under this
Contract.Subject to Subsection (b) below,those acts or events shall include, but are not limited
to,the following:
(i) an act of god (except normal weather conditions for the
geographic area of the Transfer Station and Disposal Site), hurricanes,tornadoes,epidemic,
landslide, lightning, earthquake,volcano eruption, nuclear radiation,fire or explosion,flood or
similar occurrence, an act of public enemy,war, blockade, insurrection, riot general arrest,or
restraint of government and people, civil disturbance, or similar occurrence,that directly
affects the operation of Equipment,the Transfer Station or Disposal Site;
(ii) or the failure of any appropriate federal,state local agency or public
or private utility having operation orjurisdiction over,or responsibility to serve the Transfer
Station or Disposal Site,to provide, maintain and assure the maintenance of any necessary
utility which failure is not caused by County's failure to pay for those utilities at the Transfer
Station or County's failure to comply with applicable law,
(iii) for Contractor, a non-Contractor strike;
(iv) for the County,any strike or labor dispute; or
(v) a Change in Law.
(b) It is expressly understood and agreed that notwithstanding any other
provision of this definition,the following events, or conditions, in and of themselves, shall not
constitute an Uncontrollable Circumstance:
(i) adverse changes in the financial ability of any party to this
Contract to perform its obligations under this Contract;
(ii) the consequences of errors of design, construction,start-up,
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operation or maintenance of the Transfer Station on the part of the County, or any of its
employees, agents, or subcontractors.
(iii) the failure of the County to secure patents or licenses in
connection with the technology necessary to design, construct, operate, or maintain the
Transfer Station;
(iv) the lack of fitness for use, or the failure to comply with the
Specifications orthe design of any materials, equipment, or parts constituting any part of the
Equipment;
(v) the failure of any technology to perform;
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(vi) any actor event the occurrence against which a party is obligated
to carry insurance under this Contract,to the extent such party is so obligated; and
(vi) periodic flooding and freezing which temporarily causes roads,
bridges or other transportation facilitiesto beu navailable for use by the Contractor,and which
is within the range of such unavailability which has been experienced in the case of such
transportation facilities during two (2) or more of the ten (10) years preceding the year in
which the Contract is executed."
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"USC"means United States Code.
"WAC" means Washington Administrative Code
1.2 Construction of Terms. Unless otherwise specified in the Contract,words
describing material or work that have a well-known technical or trade meaning shall be
construed in accordance with the well-known meaning generally recognized by solid waste
professionals, engineers,and trades.
ARTICLE 2
General Provisions
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2.1 Law Applicable.This Contract is made in and shall be construed under the laws of
the State of Washington.
2.2 Law Incorporated by Reference. Chapter 70.95 RCW and 36.58.040,as amended
or superseded, including the latest additions and revisions and including regulations
promulgated thereunder,and the applicable provisions of the Mason County Code, as amended
or superseded, are incorporated by reference in the Contract.
2.3 Entire and Complete Agreement.This Contract constitutes the entire and
complete Agreement and final expression of the parties with respect to the subject matter it
(00114212.DOCX.)Page 6 of 58
contains, and supersedes all prior or contemporaneous Agreements, understandings,
arrangements, commitments,and representations, whether oral or written. In the event of any
conflict between the language set forth in this Contract, any of the exhibits hereto or the
Specifications,the language in the Contract shall prevail and this Contract shall be interpreted
as if that conflicting language was not a part of the Agreement between the parties.The
Contractor shall Immediately bring to the County's attention for decision and mutual revision
any observed conflicts between or duplications of any Contract provisions or any material
omissions from the Contract.The Contractor shall obtain written instructions from the County's
Representative before proceeding with services affected by omissions or discrepancies in the
Contract. In the event of a discrepancy in the provisions of the Contract,the most stringent
provision shall apply.
2.4 Severability. If any Contract provision is for any reason determined tobe invalid,
illegal,or unenforceable under any Applicable Law,the remaining provisions of the Contract
shall remain in effect and bind the parties; however, the parties shall negotiate in good faith to
amend the Contract to effectuate the intent of any invalid,illegal or unenforceable provision, if
permissible under Applicable Law.
2.5 Time of the Essence.Time is of the essence of this Contract.
2.6 Waiver of Provisions.The County's or Contractor's failure to object to a breach of
any Contracts provisions is not and shall not be construed as a waiver of that provision.The
payment or acceptance of Compensation subsequent to any breach is not and shall not be
deemed an acceptance of that breach.Any waiver must be in writing and supported by
consideration.
2.7 Access.The County shall have the right and unlimited access to inspect any or all
of the Contractor's and subcontractor's Equipment or records solely to the extent related to this
Contract; however,the County's access to records under this Section shall be subject to the
confidentiality provisions of Section 6.9(b).The County shall have access to inspect Equipment
used in connection with the services hereunder under this Section at any and all times during
normal business hours of or when there is activity of any kind involving such Equipment.
2.8 No Third-Party Beneficiaries.This Contract is entered into by the County in its
governmental capacity and is not intended to nor does it create any third-party beneficiary or
rights in any public or private Person with the exception of those rights accorded to Other
Counties as stated herein.
2.9 Personal Liability.This Contract is not intended to create or result in any personal
liability for any public official or County employee or agent, nor shall the Contract be construed
to create that liability.
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2.10 Comprehensive Contract.All services that are necessary to complete and carry
out the project as described in the Contract shall be considered part of the project and the
Contractor shall perform or provide for the services without extra Compensation unless i
otherwise expressly stated in the contract.
2.11 Subsidiary Contacts. No contract between the Contractor and its subcontractors,
officers, employees, or agents including all contracts relating to the use, lease, operation or
ownership of the Equipment shall prevent, expressly or in effect,the Contractor from E
performing its obligations under this Contract.
2.12 Notices.
(a) Except as may otherwise be expressly provided, all approvals, requests,
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reports, notices,communications or other materials or information required or permitted to be
made or given by a party to the other party hereunder shall be deemed to have been given or
made only if the same is reduced to writing and delivered, either personally or by means of the
United States Postal Service (registered or certified mail,postage prepaid),to the County
Representative or the Contractor Representative, as the case may be, at their respective
addresses as
set forth below.
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(b) For all purposes of this Contract, any such approval, request, report, notice,
communication or other material or information which is delivered by means of the United
States Postal Service as a foresaid shall be deemed to have been delivered as of the fifth (51h)
business day next following the date of the postmark thereof.
(c) All notices, requests, and other communications to either party hereunder
shall be in writing and shall be given to such party at the following address, or such other
address as such party may hereafter specify for the purpose by notice to the other party:
If to the County:
Mason County
100 W Public Works Dr
Shelton,Washington 98584
Telephone: (360)427-9670 Ext. 652(Business)
(360)490-0396 (24 Hour Contact)
Attention: Richard Dickinson
Deputy Director/Utility Waste
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If to the Contractor:
Mason County Garbage, Incorporated
PO Box 787
81 E Wilbur's Way
Shelton, WA 98584
With copy to: Waste Connections
3 Waterway Square Place,Suite 110
The Woodlands,Texas 77380
Attn: Legal Department
Telephone: (253) 240-0655
Attention: Mark Gingrich
Vice President, Rainier Division
2,13 Article Section and Subsection References.Any Articles,Sections or Subsections
mentioned in this Contract by number only without reference to another document refer to
those Articles,Sections or Subsections contained in this Contract.
2.14 Amendment or Waiver. Neither this Contract nor any provision hereof may be
changed, modified, amended, or waived except by written instrument signed by the parties.
2.15 Contract Execution. For purposes of this Contract, Contract execution shall be the
date the County executes the Contract.
ARTICLE 3
Independent Contractor
3.1 Contractor as Independent Contractor.The Contractor shall perform all work
under this Contract as an independent contractor.The Contractor is not and shall not be
considered an employee, agent,subagents, or servant of the County for this Contract or
otherwise;the Contractor's subcontractors,employees or agents are not and shall not be
considered employees, agents, subagent,or servants of the County for this contract or
otherwise.
3.2 Contractor's Control of Proiect.The Contractor shall have the exclusive right to
control the services and work performed under this Contract and the Persons performing those
services and work.The Contractor shall be solely responsible for the acts and omissions of its
officers, agents, employees, contractors, and subcontractors performing services pursuant to
this Agreement. Nothing in the Contract shall be construed as creating a partnership orjoint
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venture between the County and the Contractor or giving the County a duty to supervise or
control the acts or omissions of any Person performing services or work under the Contract.
ARTICLE 4
Subcontractors
4.1 Reiection of Subcontractors.
(a) During the Term of this Contract the County shall have the right to reject
any or all subcontracts of all or part of Contractor's obligations to perform the project or
provide any of the Equipment if the County reasonably believes that the subcontractors
concerned either have not or will not adequately perform the tasks assigned to them.The
Contractor shall inform the County of all proposed subcontracts no later than ninety 90 P P Y( )days
prior to the date on which the proposed subcontract is to take effect.The County reserves the
right in its sole discretion to reject any subcontract no later than thirty (30) days prior to the
date on which the proposed subcontract is to take effect, if the County reasonably believes that
the subcontractor concerned either has not or will not adequately perform the tasks to be
assigned to it.
(b) In no event shall the Contractor's subcontracting,or the County's failure
to reject Contractor's subcontracting of its obligations hereunder, In any way relieve the
Contractor of its responsibilities under this Contract.The Contractor shall have the exclusive
right to control the services and work performed under this Contract and the Persons
performing those services and work.The Contractor shall be solely responsible for the acts and
omissions of its officers,agents, employees, suppliers,subcontractors and those subcontractors'
suppliers, employees, agents, and officers performing services pursuant to this Agreement.
Nothing in the Contract shall be construed as creating a partnership or joint venture between
the County and the Contractor or giving the County a duty to supervise or control the acts or
omissions of any Person performing services or work under the Contract.The Contractor's
subcontracting orthe County's approval of that subcontracting of the Contractor's obligations to perform
under this Contract shall not relieve the Contractor of Its obligations underthis Contract.
4.2 Assignment of Subcontracts.All contracts between the Contractor and its
subcontractors for services and work under this Contract executed after February 29, 2024 shall
contain a clause that if the Contractor defaults in performance of the Contract and the County
accepts assignment of the subcontract under Article 17,the subcontractor shall recognize the
County or its assignee as the Contractor and the County or its assignee shall have all the rights,
remedies and responsibilities of the Contractor under that subcontract.
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ARTICLE 5
Contractor and County Representatives
5.1 Representatives.The Contractor and the County shall each designate an agent to
serve as a competent Representative for the Term of this Contract.The County and Contractor,
respectively,shall keep each other informed of the identity of their respective Representative
and shall provide each other with a telephone number and other means by which that
Representative may be reached twenty-four(24) hours every day.
5.2 Contractor Representative.The Contractor's Representative shall be the
Contractor's agent and shall represent the Contractor for all purposes of this Contract.All
written or oral directions, instructions or notices given by the County to that Representative and
related to the subject matter of the Contract shall bind the Contractor as if delivered to the
Contractor personally.The Contractor's Representative shall be in charge of the Project at all
times and shall have authority to act on behalf of the Contractor;the Contractor's
Representative's statements, representations, actions, and commitments shall fully bind the
Contractor, subject to the requirements of Section 2.14.The Contractor's Representative shall
be located within a reasonable proximity of the County and be accessible at all times during the
Term of the Contract.
f 5.3 County Representative. Unless the County notifies the Contractor otherwise in
writing,the County's Representative shall be the County's representative for all purposes of this
Contract.
ARTICLE 6
Contractor Responsibilities. Representations and Warranties
6.1 General.The Contractor's responsibilities under this Contract Include, but are not
limited to:
(a) Transportation of Acceptable Waste, delivered to the Contractor at the
Transfer Station and loaded into Trailers that conform to the requirements of the
Specifications,to the Disposal Site
(b) Ownership, operation and/or leasing of Equipment necessary to perform
its obligations under this Contract
(c) Procurement and maintenance,as applicable,of the letter of credit or
other financial guarantee required under Section 6.4;
(d) Compliance with all Applicable Laws in accordance with Section 6.7;
obtaining any permit, license, certificate or governmental approval required for the Project in
accordance with section 6.5; and the payment of all applicable taxes and fees in accordance
with Section 6.6;
(e) Procurement and maintenance of insurance in accordance with Article 12;
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(f) Maintenance of an alternate operations plan and an emergency operations
plan and found in Exhibit D and E of the Contract and Alternate Facilities Plan found in Exhibit D
in accordance of this Contract;
(g) Performance of all other obligations required under this Contract.
6.2 Commencement of Service to County. Commencing ten (10) days after the
Contractor receives from the County a notice to proceed with operations or service under this
Contract, but in any event not earlier than February 29, 2024(or such other date as may be
mutually agreed upon by the County and the Contractor),the Contractor shall accept and
Transport all Acceptable Waste delivered by the County to the Contractor in a Trailer at the
Transfer Station in accordance with this Contract to Cowlitz County Headquarters Landfill
pursuant to landfill hours of operation.
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6.3 Facilities: Replacement or Repair.
(a) Equipment.The Contractor shall own, lease, install or otherwise provide,
maintain, and operate all necessary Equipment in a quantity sufficient to perform the services
under this Contract in a timely manner throughout the Term of the Contract in accordance with
the Specifications.Subject to Exhibits D and F,the Contractor may add to,delete,improve,or
replace Equipment during the term of the contract so long as such additions, deletions,
improvements, or replacements are carried out and operate in accordance with Applicable Law.
f All Equipment provided by the Contractor shall meet or exceed the requirements in the
Specifications and any and all requirements of any Applicable Law.
(b) Replacement or Repair.The Contractor at its sole expense shall keep all
Equipment in good working order and repair.. In the event a Trailer is damaged or due to failure
of the County or its agents to use reasonable care in loading or moving of the Trailer,the
Contractor shall repair or replace the Trailer if not economically feasible to repair.The County
shall reimburse the Contractor for the cost of repair and replacement if and only if:
(I) the repair or replacement is necessary to remedy damage caused by
the County or its agent, including a third party Transfer Station operator, and
(ii) the Contractor assigns to the County any and all subrogation rights
it has against such operator or any other Person who may be liable for the damage; and
(iii) the costs incurred to repair or replace the Trailer are reasonable
under the circumstances to repair or replace the Trailer; and
(Iv) the Contractor fully documents the costs it incurred to the County's
reasonable satisfaction.
(c) Rejection of Equipment.The County may require the Contractor at its
sole expense to replace or repair any Equipment including, but not limited to,Tractors or
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(00114212.DOCx.)Page 12 of 58
Trailers used to provide services under this Contract, when the County reasonably believes
they are not road-worthy or otherwise do not conform to the Specifications.
(d) Change of Loading Technology and Trailer Type.,In the event the County
elects to renew the Contract for a second or subsequent ten (10)year period pursuant to
Section 19.2,the County shall have the right to change the type of loading technology used
at the Transfer Station and to require the Contractor to change the Equipment, in order to
conform to the change in technology, upon giving Contractor 120 days advance written
notice of the change. Unless otherwise agreed,the change in trailer types shall be made as
of the first day of the additional ten (10)year period and shall remain in effect for the
duration of such period.
6.4 Financial Guarantee of Contract Performance.
(a) Performance Bond.The Contractor shall provide and maintain in force for
the Term of the Contract a performance bond and attached hereto as Exhibit A.
. (b) Alternate contract Performance Guarantee. In its sole discretion,the
County may accept such other form of bond or letter of credit that Is approved by the County.
For purposes of this Subsection,the term"performance guarantee"shall mean any bond, letter
of credit or other financial guarantee referred to in this Article and provided to guarantee or
provide the funds to guarantee the performance of the Contractor's obligations under this
Contract.
(c) Qualifications of Surety.The Surety must be licensed to conduct business in
Washington State and all other states wheretheProject is located.A Suretywhich provides a
bond or other alternate form of performance guarantee in lieu of an irrevocable standby letter
of credit must:
(i) conform with all applicable Washington State statutory requirements
for sureties,including, but not limited to RCW Chapters 19.72 and 48.28;and
(ii) be included on the current list of Companies Holding Certificates of
Authority as Acceptable Sureties on Federal Bonds and as Acceptable Reinsuring Companies, as
published in Circular 570, as amended, by the Audit Staff Bureau of Accounts, United States
Treasury Department.
A Surety providing a letter of credit must be a financial institution whose long-term debt Is rated
in one of the three highest categories by a nationally recognized rating agency(e.g.Standard &
Poor's rating of AAA,AA, or A.)
(d) Amount of Performance Guarantee.The amount of the performance
guarantee for the first year of transportation services under the Contract shall be$1,500,000.
For the second and subsequent years under the Contract the Contractor shall maintain the
performance guarantee in an amount equal to one hundred percent of the total revenues paid
(00114212.DOCX.)Page 13 of 58
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by the County to the contractor under this Contract for the previous year of services. (Projected
first year revenues shall be used in the case of the first renewal of the performance guarantee.)
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(e) Duration of Performance Guarantees. Except for the initial performance
guarantee which shall be for a duration of two (2)years, any successor performance guarantee
shall be issued for a term of not less than one(1)year;the Contractor shall provide a new
performance guarantee or evidence satisfactory to the County of the renewability of the current
performance guarantee,at least 180 days before the expiration date of the performance
guarantee then in effect.Any performance guarantee provided under this Section other than a
letter of credit shall provide that notwithstanding the termination or expiration of the Contract,
at any time within two (2)years of the date the performance guarantee terminates or expires,
the County may make a claim against the performance guarantee for Contractor's failure to
perform its obligations under the Contract. However,Contractor shall be liable for its obligations
under this Contract notwithstanding the termination of the surety's obligations under the
performance guarantee.
(f) Authority of Agent.All performance guarantees given under this Article
that are signed by the Surety's agent must be accompanied by a certified copy of that agent's
authority to act for the Surety at the time the bond is signed.The county must approve in
writing the Surety providing, and the form and substance of, all performance guarantees.The
Contractor may satisfy the obligations under this Article by providing performance guarantees
from one or more Sureties meeting the qualifications set forth in this Article.
6.5 Permits, Licenses, Royalties.
(a) The contractor shall obtain, maintain,and pay for, at Contractor's soie
expense, all permits required under any Applicable Law for its acquisition,installation and
operation of the Equipment and all other permits necessary to fulfill all its obligations under this
Contract.Within thirty(30) days of receiving the notice of award of the Contract from the
County,the Contractor shall,with respect to the Equipment the Contractor then expects to use
to carry out its responsibilities under this Contract, provide to the County a list of all permits
required for the performance of its obligations under this Contract designating the issuing
agency and the dates of issuance and expiration of those permits, a copy of all current permits
and the contractor's schedule for obtaining or renewing all permits required during the term of
the Contract.As Equipment is significantly changed, modified, or replaced during the term of
this Contract,the Contractor shall provide copies of new permits relevant to the acquisition,
and/or operation of such Equipment.To the extent permitted' by Applicable Law,the County
shall provide the Contractor with any information or documents in its control that the
Contractor reasonably requests in order to obtain or maintain all required permits. For purposes
of this Section,the term "permits" means any temporary and/or permanent permits, approvals,
licenses, certificates,inspection fees, surcharges and other approvals required for the
performance of the Project.The County shall obtain and maintain any and all permits necessary
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for the operation of the Transfer Station during the Term. In the event any modifications to the
Transfer Station must be made to bring the Transfer Station into compliance with current and
future laws,the cost of such modifications shall be paid by the County.
(b) The Contractor shall be liable for all fines or civil penalties that may be
imposed by any regulatory agency for Contractor-caused violations of permits, regulations, or
any Applicable Laws;the County shall not be liable for and shall not reimburse Contractor for
payment of those fines or civil penalties. Notwithstanding the foregoing,the County shall
reimburse the Contractor for all fines and penalties imposed and paid as a result of the
Transportation of Unacceptable Waste loaded into a Trailer except for fines and penalties:
(i) incurred due to the sole negligence of the Contractor, or
(ii) related to any Unacceptable Waste discovered,transported and/or
disposed of not in accordance with Section 10.4, or
(iii) other Transportation of Unacceptable Waste by Contractor or
Contractor's agent,employee, assignee, or subcontractor,done with knowledge that
Unacceptable Waste is being transported.
(c) The Contractor shall pay all royalties, fees, and license payments,shall
defend all suits, and hold the County harmless from any fines or penalties resulting therefrom
6.5(b)(i-iii) above in accordance with Article 11.
6.6 Taxes and Fees.The Contractor shall be responsible and liable for payment of all
federal,state and local taxes and fees, and surcharges of every form,that apply to any and all
Persons, property, income,equipment, materials,supplies, structures or activities that are
involved in the performance of the Contract, including but not limited to, any income taxes,,
excise,sales and use taxes and fees that arise in connection with the Contract; however,the
Contractor shall not be responsible or liable for payment of any tax or fee for which the County
is ordinarily responsible without regard to the services provided by the Contractor under this
Contract.The extent to which the Contractor is permitted to adjust Compensation(s)for cost
increases in the rates of taxes,fees, or surcharges, if at all, Is set forth in Articles 8 and 9.
Contractor shall not be responsible for any real propertytaxes assessed on the Transfer Station,
6.7 Compliance with LaW7 Documentation Confidential Business Records.
(a) Contractor Compliance with Law: County Verification.The Contractor, its
officers, employees,agents, and subcontractors shall comply with all Applicable Laws and the
requirements of this Contract in performing its obligations under this Contract.The County shall
have the right and be given access to inspect copies of all correspondence or any other
documents sent to or received from the Contractor, or its subcontractors related to the
Contractor's compliance with any Applicable Law or the requirements of this Contract.
(00114212.DOCX.)Page 15 of 58
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(b) Confidential Business Records.
(i) The Contractor may designate documents as confidential business
records; documents reasonably designated as such shall remain the exclusive property of the
Contractor. For purposes of this Section,"confidential business records" means all trade secrets,
proprietary plans,financial data and the ideas and information contained therein,or any other I
information that if made public would harm competition, that Contractor makes available to the
County for purposes of this Contract.
(ii) If documents are designated as confidential business records,they
shall be inspected by an independent accountant or other third party designated by the County
and approved by the Contractor(which approval shall not be unreasonably withheld);the third
party selected shall determine whether the documents are relevant to the Contractor's
compliance with Applicable Law. If the third party determines that the documents are relevant,
then the County may inspect the documents. For documents that contain both relevant and
irrelevant information,the third party may delete any irrelevant information.
ii The Count shall not disclose to others information designated b the
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Contractor as confidential business records unless the County, on advice of legal counsel,
reasonably determines that the information concerned, or any portion thereof is subject to
disclosure under Chapter 42.56 RCW or any other Applicable Law.The Contractor recognizes
and agrees that even if the County determines that the information is properly withheld from
public disclosure,a court may order the disclosure of that information; in such an event of
disclosure,the County shall have no liability to the Contractor for any loss resulting therefrom.
Notwithstanding the foregoing,the County may disclose all information to employees,
consultants,attorneys,or other agents of the County examining those documents for purposes
of this Contract, provided there are bound by the same confidentiality terms contained herein
in this Section 6.7. If required by law or a court order to disclose documents designated as
confidential business records,the County shall notify the Contractor before that disclosure
occurs and provide Contractor twenty one(21) days to contest in good faith the interpretation,
application and enforcement of any such law or court order.
(c) Applicability.All Agreements between the Contractor and Persons
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employed for this Contract shall contain Section 6.7(a)'s requirements.The requirements of
this Section shall survive the termination or expiration of the Contract.All unresolved disputes
arising underthis Section shall beresolved by arbitration under Article 16.
6.8 Records: Monthly Report.The Contractor shall keep accurate records of all
transactions to the extent arising from this Contract including, but not limited to, all
correspondence and invoices,weigh tickets or receipts issued at the Transfer Station or the
Disposal Site.The Contractor shall at all times maintain an accounting system that uses
generally accepted accounting principles;consistently applied for all services rendered and
materials supplied, including additional and deleted work, in connection with this Contract.
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{00114212.DOCX.}Page 16 of 58
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The Contractor shall provide to the County by the fifteenth (151h) day of each month a
report for the preceding month summarizing routine and extraordinary activities during the
prior month and plans and schedules for the future activities.The report shall include, but not
be limited to:
(a) The tonnage delivered to the Disposal Site by the Contractor from the
Transfer Station;
(b) The condition of the Equipment,
(c) A report of all complaints submitted to the Contractor as required by
Section 6.9 and the Contractor's response, if any;
(d) A summary of any extraordinary occurrences affecting the Contractor's
performance including but not limited to occurrences affecting the Equipment or Transfer
Station;
(e) Copies of the weigh tickets, invoices and/or receipts for the month;
(f) Changes In the status and readiness of alternate facilities and emergency
facilities and/or associated plans
(g) Documentation regarding Unacceptable Waste, if any,gathered, produced
and/or retained as required in Article 10;
In addition to the monthly report required under Section 6.8, Contractor shall provide to
the County within thirty(30) days of the end of any year of operations under the Contract an
annual report summarizing and consolidating the information contained in the monthly reports
provided for the preceding year.
All records required to be maintained by the Contractor under this Section shall be
available for Inspection by the County and Washington State Auditor for a period of six(6)years
after the expiration or termination of the Contract.
6.9 Accidents: Complaints.
(a) Accidents; Reporting.The Contractor shall be financially liable and
otherwise responsible for all injuries, accidents and other mishaps to the extent arising from
Contractor's services pursuant to this Contract that are not caused in whole or in part by the
negligence of the County.The Contractor shall report by telephone or email any accidents
resulting from the performance of this Contract to the County as soon as practicable. For
purposes of this Section, "accident" shall include the death of any Person,any personal injury
resulting in inpatient hospitalization or outpatient treatment by a physician or damage to any
real or personal property exceeding$5,000.The Contractor shall report in writing to the County
(00114212.DOCX.)Page 17 of 58
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within seven (7) days of that accident complete details of the accident including witness
statements.
(b) Response to Complaints: Report.The Contractor shall respond in a
reasonable and courteous manner to complaints,charges or allegations related to Contractor's
performance under the Contract within thirty(30) days of receipt of that complaint,charge,or
allegation, including butnot limitedtothose complaints made or actions brought by citizens,
citizen groups and public agencies.The Contractor shall deliver to the County as part of the
monthly report required under Section 6.8 a report of all complaints submitted that shall
include but not be limited to the name and address of the complainant,the substance of the
complaint including the activity or service at issue,the action, if any,the Contractor has taken
to investigate or remedy the problem or an explanation of why no action has been taken.
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6.10 Payment of Subcontractors and Laborers. Unless a reasonable dispute exists
concerning payment,the Contractor shall promptly pay all subcontractors,suppliers or laborers
engaged for purposes of this Contract, in accordance with the contract or agreement between
that Person and the Contractor.
6.11 Employment Discrimination.The Contractor, with regard to the work performed by
it during the Term of the Contract, will not discriminate on the grounds of race, color, or
national origin in the selection and retention of subcontractors, including procurements of
materials and leases of equipment.The Contractor will not participate directly or indirectly in
the discrimination prohibited by the Acts and the Regulations, including employment practices
when the Contract covers any activity,project,or program set forth in Appendix B of 49 CFR Part
21.
6.12 Scheduling• Management: Quality of Performance.The Contractor shall coordinate,
schedule in an orderly manner, and manage all work done by Contractor's officers, employees,
subcontractors, and agents under this Contract.The Contractor and subcontractors shall
perform every act or service under this Contract in a skillful and competent manner in
accordance with the highest standards of the solid waste transportation industry.The
Contractor shall be financially liable for any errors,deficiencies, or failures to perform under this
Contract. All workers and subcontractors shall be sldlled in their trades.All,drivers shall be
licensed or otherwise qualified as required by law.The Contractor shall furnish evidence of the
skill and licenses of its officers, employees,subcontractors, agents, and drivers on the request of
the County.The Contractor shall at all times enforce strict discipline and good order among its
employees and all subcontractors.
6.13 Representations and Warranties of the Contractor.The Contractor hereby makes
the following representations and warranties to and for the benefit of the County:
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(a) The Contractor is duly organized and validly existing as a corporation in
good standing under the laws of the State of Washington and it is duly qualified to do business
In the State of Washington.
(b) The Contractor has full legal right, power, and authority to execute and
deliver, and perform its obligations under this Contract, and has duly authorized the execution
and delivery of this Contract by proper action of its Board of Directors.This Contract has been
duly executed and delivered by the Contractor in accordance with the authorization of its Board
of Directors and constitutes a legal,valid, and binding obligation of the Contractor enforceable
against the Contractor in accordance with its terms.
(c) Neither the execution or delivery by the Contractor of this Contract,the
performance by the Contractor of its obligations hereunder, nor the fulfillment by the
Contractor of the terms and conditions hereof:
(i) conflicts with,violates or results in a breach of any Applicable Law;
(ii) conflicts with,violates or results in a breach of any term or condition
of any judgment, order or decree of any court, administrative agency, or other governmental
authority,or to the best of Contractor's knowledge, any Agreement or instrument,to which the
Contractor is a party or by which the Contractor or any of its properties or assets are bound, or
constitutes a default thereunder.
(d) No approval, authorization, license,permit, order or consent of, or
declaration, registration or filing with, any governmental or administrative authority,
commission, board, agency or instrumentality is required for the valid execution and delivery of
this Contract by the Contractor, except such as has been duly obtained or made or such as the
Contractor has given the County adequate assurance, in the County's sole discretion,that it will
be obtained or made before the commencement of services by the Contractor under this
Contract.
(e) Unless otherwise approved by the County in writing, as of the date the
Contractor provides Waste Transportation services under this Contract there shall not be any
action,suit, proceeding or,to the best of the Contractor's knowledge, investigation,at law or in
equity, before or by any court or governmental authority,commission, board,agency or
instrumentality pending or,to the best of the Contractor's knowledge,threatened against the
Contractor,wherein an unfavorable decision, ruling or finding, in any single case or In the
aggregate,would materially adversely affect the performance by the Contractor of its
obligations hereunder or in connection with the transactions contemplated hereby,or which, in
any way,would adversely affect the validity or enforceability of this Contract or any other
Agreement or instrument entered into by the Contractor in connection with the transactions
contemplated hereby.
(f) The Contractor holds,or is expressly licensed to use, all patent rights,
licenses, and franchises necessary or appropriate to possess, operate and maintain the
Equipment pursuant to and in accordance with the terms of the Contract.
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(g) There has been no material adverse change in the contractor's financial
condition since the date of the financial statement submitted by the Contractor to the County in
response to the County's request for bids.
ARTICLE 7
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County Responsibilities, Representations and Warranties
7.1 General.The County's Responsibilities under this Contract include but not limited
to:
(a) Payment of a Compensation to the Contractor in accordance with Article 8;
(b) Ownership and operation of one or, in the County's sole discretion, more
Transfer Stations;
(c) Delivery of Acceptable Waste to the Contractor, either top-loaded or
preload compacted and ejected into Trailers in accordance with the Specifications;
(d) Provide,operate, and maintain all facilities necessary for operation of the
Transfer Station including scales, compaction equipment and yard tractors.
7.2 Waste Flow: Flow Control. The County shall:
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(a) Enact and maintain in force and effect and use reasonable efforts to
enforce applicable ordinances to require all Acceptable Waste(not including waste diverted by
legal self-disposal, reuse, recycling or composting, Household Hazardous Waste, construction
and demolition waste,wood waste,)to be delivered to the Transfer Station or other designated
facilities.
(b) Use their best efforts to enter into, maintain and enforce an Agreement
with the City of Shelton under which the City will grant Mason County authority to designate
Disposal Sites for waste collected within the City and will agree to enact and enforce
appropriate laws to carry out the requirements of this Section with regard to such Acceptable
Waste originating within the City.
7.3 Payment: Estimates.As long as the Contractor's Equipment is operationally
available to accept and Transport Acceptable Waste to the Disposal Site in a quantity
commensurate with the amount of Acceptable Waste delivered to the Contractor pursuant to
this Contract during the Term of this Contract,the Contractor is providing the Transportation
services in accordance with the requirements of this Contract and the Contractor is otherwise
materially in compliance with theterms ofthis Contract,the County shall pay the Contractor a
Compensation in accordance with Article 8.
7.4 Cooperation with Contractor.The County shall cooperate with the Contractor and
respond to the Contractor's reasonable requests for information and assistance, consistent with
the provisions of this Contract. However, it is not the County's responsibility to notify the
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Contractor when to begin, cease or resume the Project, except for notice to commence service
as set out in paragraph 6.2 hereof, nor to give early notice of rejection of faulty work, nor in
any way to supervise the Project so as to relieve the Contractor of any liability, responsibility or
consequence for neglect, negligence, carelessness, substandard or defective work, or for the
use of substandard or defective materials or Equipment, by the Contractor, its officers,
employees, subcontractors or agents.The County does not assume any liability as a result of
Inspections conducted of the Project and instructions, directions or suggestions given by the
inspector shall not relieve the Contractor of any responsibility or liability associated with
Contractor's operations.
7.5 Disputes.All disputes under this Article shall be resolved in accordance with Article
16.
7.6 Access to Transfer Station: Days and Hours of Operation. Except for the occurrence
of an Uncontrollable Circumstance or on recognized Mason County Holidays that requires the
closure of the Transfer Station,the Contractor shall have access to the Transfer Station for
purposes of this Contract between 6:00 a.m. and 12:00 a.m. (midnight),daily.The County in its
sole discretion may adjust the operating hours and days of operation per year of the Transfer
Station.
f 7.7 Location of Transfer station.The notice to proceed provided to the Contractor
pursuant to Section 6.2 shall specify the location of the Transfer Station. Upon giving the
Contractor 90 days' notice,the County may change the location of the Transfer Station. In the
event any designated Transfer Station is greater than ten (10) miles from the city limits of
Shelton (as of February 29,2024)then the Contractor shall be compensated per Article 8 for
actual costs In excess of those which would be incurred if the specified distance standard had
been met.
7.8 Excluded Waste. County agrees not to deposit in Contractor's Equipment or place
for collection by Contractor any Hazardous Waste or Excluded Waste. Title to and liability for any
Excluded Waste shall remain with the producer of said waste and in no event shall pass to
Contractor.
7.9 Representations and Warranties of County.The County hereby makes the following
representations and warranties to and for the benefit of the Contractor:
(a) The County is a political subdivision of the State of Washington, with full
legal right, power, and authority to enter into and perform its obligations under this contract.
(b) The County has duly authorized the execution and delivery of this Contract
and this Contract has been duly executed and delivered by it and constitutes a legal,valid, and
binding obligation of the County enforceable against the County in accordance with its terms.
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(c) Neither the execution and delivery by the County of this Contract,the
County's performance of its obligations hereunder nor its fulfillment of the terms or conditions
hereof:
(i) conflicts with,violates or results in a breach of any Applicable Law;
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(ii) conflicts with,violates or results in a breach of any terms or
conditions of anyjudgment,order,ordecree of any court, administrative agency or other
governmental authority,or to the best of the County's knowledge, any Agreement or
instrument towhich theCounty isa party or by whichthe county or any of itspropertles
orassets are bound orconstitutes a default thereunder.
(d) No approval, authorization, license, permit,order, or consent of, or
declaration, registration or filing with, any governmental or administrative authority,
commission, board, agency or instrumentality is required for the valid execution and delivery by
the County of this Contract except those that have been duly obtained or made.
(e) Thereisnoaction,suit,proceeding or,tothe best of the County's knowledge,
investigation,at law or in equity, before or by any court orgovernmentai oradministrative
authority,commission, board, agency or instrumentality pending or, to the best of the county's
knowledge,threatened, against the county,wherein an unfavorable decision, ruling or finding,
in any single case or in the aggregate,would materially adversely affect the performance of the
County's obligations hereunder or in connection with the other transactions contemplated
hereby or which, in any way,would adversely affect the validity or enforceability of this Contract
or any Agreement or instrument entered into by the County in connection with the transactions
contemplated herein.
ARTICLE 8
Contractor Compensation
8.1 Contractor Compensation. Mason County will pay the Contractor on a monthly
basis for all work performed, providing the Contractor submits to Mason County a statement,
which indicates services provided and costs of said services, by the 151h of each month. If the
invoice remains unpaid 45 days after the issue date of the invoice,the Contractor will assess a
1.5%finance charge. If County disputes all or any portion of a submitted statement, it will raise
such dispute within 180 days of receipt of such statement. Failure by County to timely raise a
dispute regarding a submitted statement shall constitute a release and waiver by County of any
rights in respect of,and shall constitute a bar on, any claims or requests for relief by County on
the basis of such statement dispute or claim.
The County agrees to pay Contractor at the following transportation rate ("Transportation
Rate"), plus applicable fees and taxes:
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Item Rate (per ton)
Receiving&Transport Rate 1 $35.50
Contractor may increase the Transportation Rate in accordance with Annual Rate Adjustment
section below. Contractor may also adjust the total Compensation owed hereunder to account
for:
(a) any change in state or local fees,taxes,or other similar charges applicable to the
Services
(b) actual cost increases resulting directly from compliance with governmental
regulations that may become effective during the Term of this Agreement,
(c) any Change in Law,as defined above,or
(d) other Uncontrollable Circumstances that increase the Contractor's cost of providing
the Services.
Simultaneous with providing notice of any price increase,Contractor will provide
reasonable documentation substantiating the basis for and calculation of the increase.The
County shall have the right to terminate this Agreement, upon ninety(90) days'written notice,
upon the increase of the Transportation Rate that is in excess of the Annual Rate Adjustment set
forth below.
8.2 Annual Rate Adiustment.The Transportation Rate shall be adjusted on July 1, 2024,
and annually thereafter,by an amount equal to 100%of the annual percent positive change(from
December 31 to December 31) in the Consumer Price Index("CPI"),All Urban Consumers, West
Region All Items, 1982-1984=100-CUUR0400SA0, as published by the Bureau of Labor Statistics
(http://www.bls.pov/cpi/home.htm). Contractor shall notify the County of any rate adjustments
hereunder at least THIRTY (30) days in advance, provided however, that Contractor's failure to
notify the County of such rate adjustments prior to the annual adjustment date shall not waive
Contractors right to adjust rates at any time thereafter. The July 15' rate adjustment would be
based on the percent change in CPI for the period ending the preceding December 311.
The Contractor may increase or decrease the Transportation Rate in accordance with a
fuel adjustment. The transportation rate set forth in this contract will be subject to a fuel
adjustment on July 1,2024, and every six months thereafter. The adjustment will be based on
the difference between actual fuel costs incurred compared to the initial base rate of$4.50 per
gallon or$6.84 per ton of the Receiving Services and Transport Services fee.The contractor shall
provide the County with documentation of actual fuel costs on request.The adjustment will be
(00114212.DOCX.)Page 23 of 58
calculated by using the preceding 12-month average monthly price of fuel less the base rate of j
$4.50 per gallon. For example, if the monthly average fuel price is$4.75 per gallon,the fuel
portion of the Receiving Services and Transport Services fee will be increased by 5.56%(12-
Month Avg. Pricing—Base Rate)/(Base Rate)). In this scenario,the fuel portion of the Fee would
then increase by$0.38 per ton ($6.84 per ton x(1+5.56%)). If the average pricing decreased to
an average of$4.00 per gallon the transport Compensation would decrease by($0.76) per ton
($6.84 per ton x(1-11.1%)). For purposes of this calculation,the actual fuel costs shall mean
the net expense incurred by the contractor for fuel, including any incentives or carbon offset
rebates received by the contractor for the use of renewable diesel or other alternative fuel. For
further clarity with respect to the calculation of the fuel adjustment,a fuel adjustment chart is
attached hereto as Exhibit F and incorporated herein.
(a) Acceptable Increases.After receiving a request from Contractor to do so
(which request shall be substantiated to the County's reasonable satisfaction in accordance with
this Section)the County shall increase Compensation by one hundred percent of the
Contractor's reasonable actual increased costs of performing the Project due to the events
described below:
(i) Uncontrollable Circumstances. Compensation shall be increased to
remedy Uncontrollable Circumstances onlyto the extent permitted under Article 9.
(ii) Change in Certain Laws. Compensation shall be increased to reflect
the reasonable actual cost of Contractor's compliance with a Change in Law.
(III) Additional Work. Compensation maybe increased for additional
work performed in accordance with Article 14.
(iv) Transfer Station Location. Compensation shall be increased pursuant
to Section 7.7 in the event the Transfer Station is located outside of the area specified in that
Section.
(v) Operating Cost Adjustments. At any time during the term of this
Contract,the Contractor may also petition the County for additional rate and price adjustments
at reasonable times on the basis of material or unusual changes in its costs of operations not
otherwise the basis of any other rate adjustments herein. Any petition from Contractor made
pursuant to this section 8.2(a)(v)would be subject to the parties' mutual agreement and
County's approval.
(b) General Conditions and Limitations on Compensation Increases.The County
shall increase Compensation under Section 8.2(a)(i) and (ii)only for costs incurred that are a
reasonable costly means of remedying the effects of an Uncontrollable Circumstance in
accordance with Article 9 or for ensuring full compliance with a relevant Change in Law
including changes in fees or surcharges and, in accordance with Article 14,for additional work.
{00114212.DOCX.)Page 24 of 58
No Compensation increase shall be allowed for any cost increases that are in any way
attributable to conditions,structures, operations,or activities caused by the Contractor or'its
subcontractors,employees, agents, or servants or are otherwise within Contractor's control.
The Contractor must fully demonstrate, document, and substantiate the need for the requested
Compensation increase to the County's satisfaction and approval as a condition precedent to
the Contractor's right to Compensation increase under this Section.The County shall not
unreasonably withhold, condition,or delay its consent to any requested rate increase. In the
event the County fails or refuses to consent to any such requested rate increase,the Contractor
may, in its sole discretion,terminate this Agreement upon one hundred and eighty(180) days'
written notice to the County.
(c) Cancellation of Compensation Increases. On the County's request,
Contractor shall immediately provide the County with all documents, information or other
evidence in the Contractor's possession or control that the County requests to determine
whether there is a continuing need for Compensation increases which have been provided or
approved pursuant to 8.2(a)(i-v). In the event the County determines that a Compensation
increase under those Sections is no longer necessary,the County may cancel that Compensation
increase upon thirty(30)days'written notice to the Contractor. If the Contractor objects to that
cancellation within that thirty(30)-day period,the matter shall be resolved by arbitration in
accordance with Article 16. Until that resolution, Compensation shall not be reduced; however,
the Contractor shall deposit the disputed portion of Compensation into an interest-bearing
account acceptable to the County until the matter is resolved and the amount on deposit is
awarded or allocated to the parties.The Contractor shall at-all times keep.the County informed
as to whether any Compensation increase remains necessary.
8.3 Compensation Decreases. At anytime during the term of this Contract,the County
may review any previous requests made by the Contractor under 8.2.a.(v) Operating Cost
Adjustments,for the purposes of determining if such requests based on material or unusual
changes continue to warrant a previously approved rate adjustment.Any compensation
decreases requested by the County as a result must be mutually agreed upon by the Contractor.
In the event the Contractor does not consent to any such requested rate decrease,the County
may, in its sole discretion,terminate this Agreement upon one hundred and eighty(180) days'
written notice to the Contractor.
8.4 Other Compensation Adjustments or Charges.
(a) Alternate Facilities. If the County chooses to require that waste transported
on behalf of Mason County be disposed of at a Washington or Oregon Disposal Site,the County
shall adjust Compensation to reflect reasonable adjustments in the Contractor's costs of
Transportation to the Washington or Oregon Disposal Site in accordance with the rates set forth
in Exhibit D attached hereto.
(00114212.DOCX.)Page 25 of 58
(b) Liens.The County may deduct from Compensation due the Contractor
under Article 8 of this Contract the amount necessary to pay any lien filed against any one or
more of the facilities(including any real or personal property) required to fully perform the 1
Contract including without limitation anyfederal orstatetaxlien,creditor's lien,mechanicsor
materialmen's lien, and the county may pay any such lien,to the extent such lien was filed as a
result Contractor's nonpayment to any of its subcontractors.
(c) Unacceptable Waste.The County shall reimburse the Contractor in
accordance with Section 10.4 for the cost of testing,inspecting, handling and/or disposing of I
Unacceptable Waste.
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(d) Mutually Agreed Adjustments. Nothing in this Section prohibits nor shall it
be construed to prohibit the adjustment of Compensation or any other payment or fee at any
time by mutual consent of the Parties,to reflect changes in load weights, equipment, routes or
for any other reason mutually agreed upon.
(e) Additional Work. Compensation may,subject to the County's prior written
approval, be increased for additional work or services performed in accordance with Article 14
of the Contract by an amount equal to the Contractor's actual reasonable cost of performing
that work or services plus ten percent(10%) of those costs.
8.5 Payment.
(a) Disputes. All unresolved disputes concerning the calculation of or
adjustment in accordance with this Article 8 shall be resolved by arbitration in accordance with
Article 16. However,the undisputed portion of the adjustment shall be made effective
promptly;further adjustment shall be made effective on the resolution of the dispute under
Article 16. In addition to any portion of the disputed adjustment ultimately awarded,the
arbitrator(s) may also award to the Contractor interest on the disputed amount from the date
Compensation component or payment adjustment was effective.The interest rate shall be
determined by the arbitrator(s) and interest award paid within a period determined by the
arbitrator(s), but in no event later than twelve (12) months from the effective date of the
payment adjustment.The interest award may be made by means of a further increase or j
decrease in the payment made to the Contractor.
ARTICLE 9
Allocation of Risk; Uncontrollable Circumstances
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9.1 Contractor Reliance. The Contractor warrants that prior to entering this
Contract, it has examined carefully and acquainted itself with the Contract,the Project,the
Transfer Station and transportation routes,the difficulties that may be encountering in
100114212.DOCX.)Page 26 of 58
performing the Project, Including without limitation, local periodic frost flooding and other
weather conditions, all Applicable Laws and any and all other matters necessary to the
performance of this Contract.
9.2 County Disclaimer.The County does not warrant or admit the correctness of any
investigation, interpretation, deduction, or conclusion by the Contractor relative to the solid
waste transportation services issued in connection with this Contract or to the condition or
conditions of the Transfer Station.The Contractor has made and shall make its own deductions
and conclusions as to any and all problems that may arise from site conditions.
9.3 Uncontrollable Circumstances
(a) Uncontrollable Circumstances Limited.The Contractor's obligations to
provide Transport services under this Contract and the County's obligation to pay
Compensations under the Contract are subject to Uncontrollable Circumstances that may
necessarily and unavoidably prevent or substantially increase the cost of Contractor's
performance of the Project or County's performance of its obligations hereunder. No other
events shall excuse nonperformance of the obligations of the parties.
(b) Notification: Reconstruction Compensation Increases.As soon as possible
after the occurrence of an Uncontrollable Circumstance, but in no event later than forty-eight
(48) hours following the time the knowledgeable party becomes aware of the Uncontrollable
Circumstance,such party shall notify the other of the event. If the occurrence of the
Uncontrollable Circumstance damages, destroys or otherwise incapacitates any of the
Equipment or otherwise prevents the Contractor from performing the services,the Contractor
shall, at the earliest practicable time, activate the alternate transportation plan prepared in
accordance with the Contract.
(c) Obligation to Provide Alternate Facilities. If the Contractor on the
occurrence of an Uncontrollable Circumstance, cannot or fails to provide services under this
Contract,the Contractor shall make available to the County alternate transportation to a
disposal site in accordance with the approved alternative facilities contained in Exhibit D.The
County shall compensation Contractor as outlined in Exhibit D..The Contractor shall not receive
a Compensation increase or any other additional Compensation for the use of alternative
transportation unless that use is necessitated by the occurrence of an Uncontrolled
Circumstance or is otherwise permitted pursuant other provisions of this Contract.
(d) Disputes. Unresolved disputes concerning the of the cost of remedying
the effects of an Uncontrollable Circumstance shall be resolved by arbitration in accordance
with Article 16.
{00114212.DOCX.)Page 27 of 58
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ARTICLE 10 i
Ownership: Inspection of Waste: Unacceptable Waste
10.1 Ownership.Subject to the limitations and conditions of this Article,title to Solid
Waste that is loaded into a Trailer shall pass tothe Contractor in accordance with the
Specifications atthe Transfer Station as soon as the Contractor accepts that Solid Waste but in
no event later than the moment the Trailer is removed from the boundaries of the Transfer
Station.The Contractor shall have the right to recycle or reuse any waste to which it receives
title under this Contract and to retain any payments it receives for the sale of recycled or reused
materials.Title to Unacceptable Waste shall at all times remain with the generator thereof, in
accordance with Section 7.8 above.
10.2 Transfer Station Inspection Program.The County shall establish and maintain a
program of operating and monitoring procedures for the Transfer Station reasonably calculated
to prevent the loading of Unacceptable Waste into Trailers.Transfer Station operators shall be
instructed and trained to implement the program.
10.3 Waste Inspection at Disposal Site• Handling of suspected Unacceptable Waste
(a) In that event any Unacceptable Waste is inadvertently accepted by
Contractor, Contractor shall take immediate action to minimize any environmental damage that
f may be caused by the transport or delivery of Unacceptable Waste from the Transfer Station to
the Disposal Site. Contractor shall be reimbursed by the County for handling and disposing of
Unacceptable Waste in accordance with Section 10.4(b).
(b) The Contractor shall take all reasonable steps to oversee and arrange for
the proper disposal of Unacceptable Waste in accordance with law, and assist Ecology(or
equivalent agency)and the County in determining the source of the Unacceptable Waste
delivered by the Contractor to the disposal site.
(c) The Contractor may inspect the contents of all Trailers.The County may be
present to observe any inspection conducted under this Article and may at its sole discretion
and cost inspect any waste delivered to the Disposal Site under this Contract. If the Contractor
discovers Unacceptable Waste or waste that the Contractor suspects is Unacceptable Waste in a
Trailer,the Contractor shall:
(i) orally notify the County of the discovery of the suspected or actual
Unacceptable Waste within one(1) hour of that discovery unless that discovery occurs after 4
p.m. in which event notification shall be given to the County the next business day.
(ii) gather,preserve, maintain, and make available to the County all
evidence demonstrating that the Unacceptable Waste was placed into the Contractor's
Equipment pursuant to this Contract including without limitation the transportation route and
schedule of the transportation of the Trailer to the Disposal Site,the time the Trailer was
delivered to the Disposal Site, any photographs of the Unacceptable Waste or Trailer or
otherwise that might establish that the waste is Unacceptable Waste and/or was delivered
{00114212.DOCX.}Page 28 of 58
pursuant to this Contract, samples of Acceptable Waste from the Trailer that may demonstrate
that the Trailer was delivered to the Disposal site under this Contract and/or may demonstrate
the origin of the Unacceptable Waste, laboratory results (if any),any statements or
documentation provided by federal,state or local authorities regarding the character of the
waste and any other material or documentation the County reasonably believes is relevant
thereto;
(ill) test or arrange to have tested at the Contractor's own expense the
waste to ascertain whether that waste is Unacceptable Waste;
(iv) permit the County to inspect that Unacceptable Waste within
seventy-two (72) hours of notice by the Contractor to the County of the existence of that
Unacceptable Waste,test the Unacceptable Waste within a reasonable period of time and
examine all other evidence gathered by the Contractor under Section 10.3(b), above,at any
time after the discovery of that Unacceptable Waste;for purposes of any inspection conducted
pursuant to this section,the County shall have unrestricted access to the Trailer and/or any
other Equipment in which the Unacceptable Waste was loaded and/or transported; and
(v) arrange for proper disposal of the Unacceptable Waste and seek
reimbursement from the County for the actual reasonable cost of that disposal in
accordance with Section 10.4.
10.4 Liability forTestine Inspecting Handling and/or Disposing of Unacceptable
Waste.
(a) Absence of Unacceptable Waste. If, after inspecting and/or testing the
waste the County discovers no Unacceptable Waste, or discovers that the Unacceptable
Waste was not transported by Contractor under this Contract,the Contractor shall arrange
for disposal of that waste at no additional cost to the County..
(b) Procedures After Unacceptable Waste Discovered. If Unacceptable Waste is
discovered at the Disposal Site,and there is proof satisfactory to the County(acting reasonably)
that the Unacceptable Waste was delivered to the Disposal Site underthis Contract, and the
Contractor complies with all the requirements of this Article,the County shall pay or reimburse
the Contractor for the actual reasonable cost of the inspection,testing, identification, handling
and disposal of that Unacceptable Waste, subject to the limitations and conditions of this
Article. Payment or reimbursement by the County will only be made if the Contractor:
(i) complies with the requirements of this Article including but
not limited to subsections 10.3 (a)through (c),above;
(11) assists the County to the extent possible in ascertaining the
Person previously owning or responsible for the delivery of the Unacceptable Waste to the
Transfer Station; and
{00114212.DOCX.)Page 29 of 58
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(ill) documents its actual costs, the reasonableness of those costs
of inspecting,testing, identifying, handling and/or disposing of the Unacceptable Waste in
compliance with Applicable Law.
(c) Payments to Contractor.Any payments or reimbursement made by the
County to the Contractor under this Section shall be paid in four(4) consecutive quarterly
installments or a single lump sum payment at the County's sole discretion.The first
installment or the lump sum payment shall be paid on the fifteenth (15th) day of January,
April,July or October, whichever date first occurs thirty(30) days after the Unacceptable
Waste was discovered at the Disposal Site pursuant to this Article.The County shall also pay
the Contractor interest accruing on any payment due under this Article from the date the
costs are incurred to handle and Dispose of the Unacceptable Waste to the date payment
for that handling and Disposal is made. Any unresolved disputes arising under this Article
relating to the Contractor's actual reasonable costs shall be resolved by arbitration in
accordance with Article 16.
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10.5 Notice of Change in Law--Unacceptable Waste. In the event Contractor disposes of
waste under this Contract at a Disposal Site located outside of the State of Washington,
Contractor shall provide the County with notice of any change in the law of such state which j
regulates the type of materials which may lawfully be transported to,and/or disposed of at the
Disposed Site, within 48 hours of receipt by Contractor of knowledge of such change.
ARTICLE 11
Indemnification
11.1 Indemnity.To the fullest extent permitted by law,the Contractor agrees to
indemnify, defend and hold the County and its departments, elected and appointed officials,
employees, agents and volunteers, harmless from and against any and all claims, damages,
losses and expenses, including but not limited to court costs, reasonable attorney's fees and
alternative dispute resolution costs,for any personal injury,for any bodily injury, sickness,
disease or death and for any damage to or destruction of any property(including the loss of use
resulting there from)to the extent which:
(a) are caused in whole or in part by any negligent act or omission or willful
misconduct,of the Contractor, its employees, agents or volunteers or Contractor's
subcontractors and their employees, agents, or volunteer s; or
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(b) resulting from, or in connection with Contractor's breach of this j
Agreement; or
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(c) are based upon the Contractor's or its subcontractors' violation of law.
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This indemnification obligation of the Contractor shall not apply in the limited circumstance
where the claim, damage, loss, or expense is caused by the sole negligence of the County.This
{00114212.DOCX.)Page 30 of 58
indemnification obligation of the Contractor shall not be limited in any way by the
Washington State Industrial Insurance Act, RCW Title 51, or by application of any other
Workmen's Compensation act, disability benefit act or other employee benefit act, and the
Contractor hereby expressly waives any immunity afforded by such acts.The foregoing
indemnification obligations of the Contractor are a material inducement to County to
enter into this Agreement, are reflected in the Contractor's Compensation, and have been
mutually negotiated bythe parties.
Should a court of competent jurisdiction determine that this Agreement is subject to RCW
4.24.115, then, in the event of liability for damages arising out of bodily injury to Persons or
damages to property caused by or resulting from the concurrent negligence of Contractor
and the County,then Contractor's obligation to indemnify the County shall only apply to
the extent of Contractor's portion of contributory negligence .
11.2 Participation by County- No Waiver.The County reserves the right, but not the
obligation,to participate in the defense of any claim, damages, losses or expenses and such
participation shall not constitute a waiver of Contractor's indemnity obligations under this
Agreement.
11.3 Survival of Contractor's Indemnity Obligations. The Contractor agrees all
Contractor's indemnity obligations shall survive the completion, expiration ortermination of
this Agreement.
11.4 Indemnity by Subcontractors. In the event the Contractor enters into
subcontracts to the extent allowed under this Agreement, the Contractor's subcontractors
shall indemnify the County on a basis equal to or exceeding Contractor's Indemnity obligations
to the County.
ARTICLE 12
Contractor and County Liability Insurance
12.1 Insurance. Forthe duration of this Agreement the Contractor shall maintain in
effect all insurance as required herein and comply with all limits,terms and conditions stated
therein.Work under this Agreement shall not commence until evidence of all required
insurance and bonding is provided to the County. Evidence of such insurance shall consist of a
completed copy of the Certificate of Insurance signed by the insurance agent for the Contractor
and returned to the Mason County Deputy Director of Utilities/Waste Management. If for any
reason,any material change in the coverage occurs during the course of this Agreement; such
change will not become effective until 30 days after Mason County receives written notice of
such material change.The policy shall be endorsed, and the certificate shall reflect that Mason
County is an additional insured on the Contractor's general liability policy with respect to
liability arising out of work or operations performed by or on behalf of the Contractor pursuant
to this Agreement, including materials, parts or equipment furnished in connection with such
{00114212.DOCX.}Page 31 of 58
work or operations and automobiles owned, leased, hired,or borrowed by or on behalf of the
Contractor under this Agreement.The policy shall provide,and the certificate reflect that the
insurance afforded applies separately to each insured against whom a claim is made, or suit is
brought except with respect to limits of the company's liability.
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12.2 Minimum Insurance Requirements.
(a) Commercial General Liability Insurance using Insurance Services Office
"Commercial General Liability" policy form CG 00 01,with an edition date prior to 2004,or the
exact equivalent. Coverage for an additional insured shall not be limited to its vicarious liability.
Defense costs must be paid in addition to limits, Limits shall be no less than five million dollars
($5,000,000)per occurrence for all covered losses and no less than ten million dollars
($10,000,000)general aggregate,for bodily injury, personal injury,and property damage,
including without limitation, blanket contractual liability.Contractor may use a combination of
primary and excess liability insurance to meet required limit.
(b) Workers' Compensation on a state-approved policy form providing
statutory benefits as required by law with employer's liability limits for the Contractors,with
two (2) or more employees and/or volunteers, no less than
$1,000,000 per accident for all covered losses.
(c) Business Auto Coverage on ISO Business Auto Coverage form CA 00 01
including owned, non-owned and hired autos, or the exact equivalent. Limits shall be no less
than five million dollars($5,000,000) per accident,combined single limit. If Contractor owns no
vehicles, this requirement may be satisfied by a non-owned auto endorsement to the general
liability policy described above. If Contractor or the Contractor's employees will use personal
autos in any way on this project, Contractor shall obtain evidence of personal auto liability
coverage for each such Person.
(d) Site Pollution Incident Legal Liability Insurance including transportation
coverage shall be written with limits not
less than five million dollars ($5,000,000) combined single limit per occurrence for bodily injury,
personal injury, property damage, cleanup costs,and legal defense expenses.
(e) Umbrella or excess liability policies shall provide coverage at least as broad as
specified for underlying coverages and covering those insured in the underlying policies.
Coverage shall be"pay on behalf',with defense costs payable in addition to policy limits.There
shall be no cross-liability exclusion of claims or suits by one insured against another.
12.3Certificate of Insurance.A Certificate of Insurance naming County as the Certificate
Holder must be provided to County within five(5)days of Contract execution.
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12.4 Basic Stipulations.
(a) Contractor may self-insure if the following conditions are met:
(i) Contractor has a formal self-insurance program in place prior to
execution of this Agreement. If a corporation, Contractor must have a formal resolution of its
board of directors authorizing self-insurance.
(ii) Contractor agrees to protect the County, its boards, officers, agents and
employees at the same level as would be provided by full insurance with respect to types of
coverage and minimum limits of liability required by this Agreement;
(iii) Contractor agrees to defend the County, its boards,officers,agents and
employees in any lawsuit that would otherwise be defended by an insurance carrier;
(iv) Contractor agrees that any insurance carried by the County is excess of
Contractor's self-insurance and will not contribute to it.
(v) Contractor provides the name and address of its claims administrator;
(vi) Contractor submits its most recently filed its 10-K or audited annual
financial statements for the three most recent fiscal years;
vii Contractor agrees to inform the Count in writing immediately of any
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whit would material) affect the protection afforded the Count
change in its status or policy h y p Y
by this self-insurance
(b) Contractor agrees to endorse third party liability coverage required herein to
include as additional insureds County, its officials,officers, employees,volunteers,and agents,
using ISO endorsement CG 2010 with an edition date prior to 2004. Contractor also agrees to
require all Contractors, subcontractors, and anyone else involved in this Contractor on behalf of
the Contractor(hereinafter"Indemnifying Parties")to comply with these provisions.
(c) Contractor agrees to waive rights of recovery against County regardless of the
applicability of any insurance proceeds, and to require all Indemnifying Parties to do likewise.
(d)All insurance coverage maintained or procured by Contractor or required of
others by Contractor pursuant to this Contract shall be endorsed to delete the subrogation
condition as to County or must specifically allow the named insured to waive subrogation prior
to a loss.
(e)All coverage types and limits required are subject to approval, modification,and
additional requirements by County. Contractor shall not make any reductions in scope or limits
of coverage that may affect County's protection without County's prior written consent.
(00114212.DOCX.)page 33 of 58
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(f) Contractor agrees to provide evidence of the insurance required herein,
satisfactory to County, consisting of:
(i) certificate(s) of insurance evidencing all of the coverages required
and,
(ii)an additional insured endorsement to Contractor's general liability
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policy using appropriate ACORD form.Any actual or alleged failure on the part of County or
any other additional insured under these requirements to obtain proof of insurance
required under this Contract in no way waives any right or remedy of County or any
additional insured, in this or in any other regard.
It is acknowledged by the parties of this Contract that all insurance coverage required to be
provided by Contract or indemnifying party, is intended to apply first and on a primary non-
contributing basis inrelation to any other insurance or self-insurance available to County.
(g) Contractor will renew the required coverage annually as long as County, or
its employees or agents face an exposure from operations of any type pursuant to this
Contract.This obligation applies whether the Contract is canceled or terminated for any
reason. Termination of this obligation is not effective until County executes a written
statement to that effect.
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(h)The limits of insurance as described above shall be considered as minimum
requirements.Should any carried by Contractor,or a subcontractor of any tier maintain
insurance with limits of liability that exceed the required limits or coverage that is broader than
as outlined above,those higher limits and broader coverage shall be deemed to apply for the
benefit of any Person or organization included as an additional insured and those limits shall
become the required minimum limits of insurance in all Paragraphs and Sections of this
Contract.
(1) None of the policies required herein shall be in compliance with these
requirements if they include any limiting endorsement that has not been first submitted to
County and approved of in writing.
(j)The requirements in this Article supersede all other Sections and provisions of
this Contract to the extent that any other Section or provision conflicts with or impairs the
provisions of this Article.
(k) Unless otherwise approved by County, insurance provided pursuant to these
requirements shall be by insurers authorized to do business in Washington and with a minimum
A.M. Best rating of A-:VII. j
(1)All insurance coverage and limits provided by Contractor and available or
applicable to this agreement are intended to apply to the full extent of the policies. Nothing
contained in this Contract limits the application of such insurance coverage.
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(00114212.1DOC CIPage 34 of 58
(m) Contractor agrees to require insurers,to provide thirty(30) days' notice to
County prior to cancellation of such liability coverage in accordance with the notice provisions
of the applicable policies. Contractor shall assure that this provision also applies to any
subcontractors,joint ventures or any other party engaged by or on behalf of Contractor in
relation to this Agreement. Certificate(s)are to reflect that the issuer will provide notice to
County of any cancellation of coverage in accordance with the notice provisions of the
applicable policies.
(n) Requirements of specific coverage features are not intended as limitation on
other requirements or as waiver of any coverage normally provided by any given policy.Specific
reference to a coverage feature is for purposes of clarification only as it pertains to a given issue
and is not intended by any party or insured to be all-inclusive.
(o) Contractor agrees to provide immediate notice to County of any claim or loss
against Contractor arising out of the work performed under this agreement. County assumes no
obligation or liability by such notice but has the right(but not the duty)to monitor the handling
of any such claim or claims if they are likely to involve County.
(p) Throughout the Term of this Agreement, the County shall maintain, at its
expense, property insurance which fully insures and protects against loss resulting from damage
to the Transfer Station building caused by fire or other casualty. All such insurance policies shall
be issued by an insurance company authorized to do business in the State of Washington.
ARTICLE 13
Coordination Meetings
13.1 Initial Coordination Meeting. Prior to the commencement of services under this
Contract,the Contractor, County, principal subcontractors, and others requested by either party
shall meet in Shelton,Washington to discuss scheduling, processes,materials,change orders,
personnel and any other matters the parties deem appropriate.
13.2 Periodic Coordination Meetings and Reports.The County and the Contractor shall
hold periodic coordination meetings in Shelton,Washington but no lessthan one every six(6)
months to review the progress ofthework and to discuss operations, problems and/or complaints
made by third parties.Any cost incurred by any Person to attend a coordination meeting shall
be borne by that Person. Either the County or the Contractor may organize, call,and notify the
other party of that meeting. If requested,the Contractor shall submit a reportto the County no
later than ten(10)calendar days before that meeting regarding operations, problems,complaints,
or any other matter relating to or arising under the Contract.
{00114212.DOCx.}page 35 of 58
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ARTICLE 14
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Additional or Deleted Work
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14.1 Payment or Credit for Addition Services. All requests for payment for services or
work under this Contract in addition to the services of work described in the Contract shall be
made only under the conditions and procedures of this Article. For purposes of this Article,the
term "Additional Work" means work that is in addition to the Project or other work required to
be performed under the Contract or any amendments thereof but does not include any work
required to comply with any Changes in Law, statutes, rules, regulations, ordinances, permit(s),
permit conditions or regulatory provisions.Nothing in this Article is intended to negate or lessen
any other precondition or procedure for payment or reimbursement provided in this Contract.
14.2 Additional Work.
(a) The County shall submit to the Contractor a written request to perform
any work or services additional to those performed under this Contract.Within thirty(30) days
of that request,the Contractor shall submit to the County an itemized proposal stating the
Contractor's actual costs for performing the additional work or services, a schedule, and the
impact the performance of that additional work or services will have on the Contractor's
performance under this Contract.
(b) If the County approves the Contractor's written request for additional
work or services and proposal,the County shall notifythe Contractor inwriting and order the
Contractor to proceed. Unless the Contractor performed to remedy what a reasonable Person
would recognize asan emergency,the Contractor shall not be entitled to Compensation
increases for the additional work or services performed unless the County orders the Contractor
to perform the work or services in accordance with this Article.
(c) Unresolved disputesconcerningthecalculationof, oradjustmentsto
Compensations under this Section shall be resolved by arbitration in accordance with Article 16.
ARTICLE 15
Defaults in Performance of the Contract/Termination of Contract
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15.1 Contractor Default.There shall be four classes of defaults by the Contractor in its
performance under this Contract.
(a) Class A default is:
(1) Without the consent of the Contractor,the entrance of a decree or
order under Title 11 of the United States Code, or any other applicable bankruptcy,
insolvency, reorganization,or similar law, or appointing a receiver, liquidator, trustee, or similar
official of contractor or any substantial part of its properties,and such decree or order shall
remain in effect(and not be stayed)for sixty(60)consecutive days; or
{00114212.DOCX.)Page 36 of 58
(li) The filing by Contractor or of a petition, answer or consent seeking
relief under Title 11 of the United States Code,or any other similar applicable bankruptcy,
insolvency, reorganization,or other similar law,or consent to the institution of proceedings
thereunder or the filing of that petition or to the appointment of a receiver, liquidator,trustee,
or other similar official of the Contractor or of any substantial part of the properties of the
Contractor, or the making of a general assignment for the benefit of a creditors; or
(III) Failure to perform the basic Solid Waste Transport services required
under this contract, and it appears to the County's Representative, in that Representative's
reasonable judgment,that the Contractor has abandoned the Project.
(iv) Failure to provide, replace and/or maintain the contract performance
bond, letter of credit or other performance guarantee required by Section 6.4.
(b) Class B default includes, on the commencement of services under this
Contract,the Contractor's:
(1) The Contractor's failure to commence the Solid Waste Transport
services hereunder in compliance with Applicable Law and In substantial and material
compliance with the Specifications, on the date designated by the County.
(ii) failure to substantially perform the basic Transport and/or Disposal
services under this Contract on three (3)or more occasions of three (3) days duration in any
given year; or
(III) direct or indirect change of control or transfer of controlling interest
in the beneficial ownership of the Contractor other than as expressly permitted under in Section
16.3;
(iv) contamination of the environment in violation of any Applicable Law
as a result of its negligent operations under this Contract.
(c) Class C default includes the Contractor's failure to procure and maintain
insurance under Article 12.
(d) Class D default includes any other failure by the Contractor to perform
its obligations pursuant to the material terms of this Contract.
Notwithstanding any in this Section to contrary, a delay or interruption in the performance of all
or any part of the contract resulting from Uncontrollable Circumstances shall not be deemed a
default under this Section.
(00114212.DOCX.}page 37 of 58
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15.2 Consequences of Contractor Defaults.
(a) Class A Default. In the event of a Class A default,the Contractor or surety
shall be permitted to remedy the default within thirty(30) days from notice by the County. If the
Class A default is not remedied within thirty(30) days of that notice,the County may, at its sole
option:
(1) be released from its obligations under this Contract and use any other
method or Person to transport waste and may sue for actual damages;
(ii) seek a judicial remedy of specific performance; or
(III) purse any combination of the foregoing or any other remedy
provided under this Contract including but not limited to recovering actual damages caused by
Contractor's Class A breach.
(b) Class B Default. In the event of a Class B default,the Contractor or Surety
shall be permitted to remedy the default within ten (10) days from notice by the County and
shall pay to the County the County's actual damages and costs for providing alternative
Transportation of Acceptable Waste or otherwise operating after the change in ownership
under Section 17.3. If the Class B default is not remedied within ten (10)days,the County may
at its sole discretion:
(1) be released from its obligations under this Contract and use any other
method or Person to Transport Acceptable Waste and may collect from the Contractor
liquidated damages as set forth in Section 15.2(b)(4) below;
(ii) seek judicial remedy of specific performance;
(III) after the expiration of the ten (10)-day notice period, charge the
Contractor an amount equal to actual tons of Acceptable Waste disposed by the County each
day through any other mean multiplied by forty percent(40%)of Compensations then in effect
under Article 8 per day for each day the Contractor fails to perform services due to the defaults
set forth in Section 15.1 (b), (1), (2), or(4)
(iv) pursue any combination of the foregoing or any other remedy
provided under this Contract.
(c) Class C Default. In the event of a Class C default,the Contractor or the
Surety shall be permitted to remedy the default if not cured by Contractor within fifteen (15)
days from notice by the County, and Contractor shall pay to the County liquidated damages for
failure to procure and/or maintain insurance in the types and amounts required by Article 12, a
per day fee equal to twice the annual cost of obtaining that insurance on the day of the default
divided by 365 (i.e.,twice the daily cost of the insurance).
(00114212.DOCX.)Page 38 of 58 -
The payment of liquidated damages for the failure to procure and/or maintain insurance under
Section 15.2(c) (1)shall be paid notwithstanding Contractor's reimbursement under Article 8 to
the County of any cost incurred by the County to obtain or maintain insurance coverage. If a
Class C default is not remedied within fifteen (15) days,the County may at its sole option
exercise any of the remedies set forth for remedy of a Class B default under this Section.
(d) Class D Default. In the event of a Class D default,other than a delay in the
Project,the Contractor or Surety shall be permitted to remedy the default if not cured by
Contractor within fifteen (15) days from written notice by the County. If the default is not
remedied within that fifteen (15) days, Contractor shall thereafter pay to the County the
County's actual damages. If a Class D default occurs on a chronic basis, is material to the
provision of services under the Contract and is not remedied,the County may at its sole option
terminate the Contract.
15.3 Termination. In addition to liquidated damages specific performance and any other
remedies provided above,the County shall have the right to terminate this Contract:
(a) immediately on the occurrence of an event of default described in
Section 15.1(a)or 15.1 (b), or
(b) on the occurrence of any event of default described in Section 15.1
(c)or 15.1 (d), if that event of default shall occur and be continuing for ninety(90) days beyond
the date the Contractor receives the default notice, occurs on a chronic basis, and is material to
Contractor's provision of services under the Contract. Any unresolved dispute concerning
whether an event of default is material for purposes of terminating the Contract shall be
resolved in accordance with Article 16. In the event the County terminates the Contract,the
Contractor shall be entitled to payment of any Compensation due prior to the effective date of
the County's notice of termination of this Contract, but only to the extent the amount of such
Compensation exceeds undisputed amounts owed to the County.The County shall retain the
right to pursue any cause of action or assert any claim or remedy it may have against Contractor
despite its termination of the Contract, or
(c) with or without cause terminate this Agreement by giving written notice of
their intention to terminate to the other party by certified mail and return receipt requested.
Such termination shall,thereafter, be effective 365 days following the date of written notice,
during which period of time the terms and conditions of the Agreement shall remain in full
force and effect.
(d) in the event the County fails to receive the necessary appropriation of
funds in connection with the Agreement,then by providing 120 days written notice to
Contractor.
(00114212.Docx.)Page 39 of 58
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15.4 Default Procedure.
(a) Notice.To initiate default proceedings under this Article,the County's j
Representative shall give the Contractor and its Surety written notice of the default specifying
with particularity theeventof default thathasoccurred and specifying the county's intention to
declare the contractor in default. Unless the Contractor promptly cures such default or
otherwise shows cause to the County's satisfaction why it should not be declared in default
under the Contract,the County shall declarethe Contractor in default and shall beentitled to
there med iessetforth in Section 15.2 above.
(b) No Adjustment for County Savings, If the County secures performance of
the services described in this Contract at a cost less than Compensations established in
accordance with Article 8, asadjusted inaccordancewith this Contract,the County shall retain
that difference.
(c) Procedure for Collection of Liquidated Damages.The County may draw
upon the letter of credit provided by the Contractor if the Countydeterminesthata default has
occurred,and that the County has or will incur costs as a result.The County may draw amounts
equal to actual costs or liquidated damages, as applicable. In the event of a court or arbitrator's j
determination that all or part of any draw was not justified, the County shall repay theamount
overdrawn to the Contractor together with interest at the rate of the Contractor's actual interest
costs incurred in connection with the draw or portion thereof.
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(d) Offset of Compensations.Any amount due to the Contractor under this
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Contract at the time of default shall be reduced by any undisputed amount duethe County
under this Contract.
15.5 County Default. For purposes of this Contract, a County event of default shall
constitute the repeated or persistent failure or refusal by the County to fulfill any of its
obligations under this Contract (unless that failure or refusal results from an Uncontrollable
Circumstance).To initiate default proceedings under this Article,the Contractor's
Representative shall give the County written notice of that default specifying with
particularity the event of default that has occurred and specifying the Contractor's
intention to declare the County in default. If within ninety(90)days of notice by the
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Contractor, except as provided in subsection (d) below,the County has failed to cure the
default or threatened default will be promptly cured,the Contractor shall have the right to
any or all of the following remedies to the extent provided by law:
(a) Specific Performance. For each and every default,the Contractor shall be
entitled to a judicial remedy of specific performance or mandamus requiring the County to j
specifically perform the County's responsibilities as provided in Article 7; it being agreed that in
the case of a default by the County, Contractor's remedies at law will be inadequate.
(b) Injunctive Relief.
(00114212.DOCX.)Page 40 of 58
(i) For each and every default,the Contractor shall be entitled to the
remedy of a permanent or temporary injunction,either in mandatory or prohibitory form, it
being agreed that in the case of default,the Contractor's remedy at law is inadequate.
(ii) If the governing body of the County places as an agenda item
before its deliberative body, any proposed ordinance, rule or other regulation that
threatens, on its effective date,to precipitate a default of the county's responsibilities
under Article 7,the Contractor may seek an injunction from a court of competent
jurisdiction enjoining the County's deliberative bodyfrom enacting thatordinance,rule or
regulation, if Contractor can show that Contractor will be irreparably damaged as a resultof
the enactment of that proposed ordinance, rule,or regulation.
(c) Damages. For each and every County default,the Contractor may chargethe
County the Contractor's actual reasonable costs incurred as a result of that default, but in no
event greater than$5,000 per day.
(d) Termination or Suspension of Contractor's Performance of the Contract. For
any County default that within 120 days of the County's receipt of the notice required under
this Section is not remedied and for which the County does not give the Contractor reasonable
assurance that it will be remedied, and which occurs on a chronic basis and is material to the
County's operations under the Contract, Contractor shall be entitled to terminate the Contract.
(e) Limitation of Liability of the County.The obligations of the County under
this Contract are limited obligations payable solelyfrom such amounts as may lawfully be
paid by the County for services of the type required to be rendered by the Contractor
under this Contract. The obligations of the County hereunder shall not be payable from the
general funds of the County and incurrence or non-performance of such obligations of the
shall not constitute or create a legal or equitable pledge of, or lien or encumbrance upon or
claim against, any of the assets or property of the County or upon any of its income,
receipts or revenues other than upon its income receipts and revenues derived from its
regulation and operation of a system for the handling of solid waste within its boundaries.
The execution and delivery of this Contract by the County shall not impose any personal
liability on the members, officers, employees or agents of the County. No recourse shall be
had by the Contractor for any claims based on this Contract in his or her individual capacity,
all such liability, if any being expressly waived by the Contractor by the execution of this
Contract.
15.6 Contractor's Bankruptcy/Receivership. If during the term of this Contract the
Contractor becomes insolvent, is dissolved,files a petition under any bankruptcy statute, isthe
debtor in any involuntary bankruptcy casethat is notdismissed within sixty(60)days after the
petition commencing that case is filed, makes a general assignment for the benefit of creditors,
or if a receiver is appointed for the benefit of its creditors or on account of its insolvency,that
event could impair or frustrate the Contractor's performance of this contract.Therefore, it is
agreed that on the occurrence of any one or more of those events,the County shall be entitled
{00114212.DOCX.)Page 41 of 58
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to obtain from Contractor or its successor-in-interest, adequate assurance of future
performance in accordance with the terms and conditions of this Contract. Failure of Contractor
and Surety to comply with that request within ten(10)calendar days of service on both
Contractor and surety of a written requestfromthe County for that assurance shall entitle the
county to terminate or suspend Contractor's performance of the Contract.The County shall not
be bound to the Contract by any trustee or receiver appointed to take' possession of any of the
Equipment or the contractor's business.
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15.7 No Waiver by County. Nothing in this Article, and no actions taken pursuant tothis
Article shall constitute awaiver or surrender of any rights, remedies,claims or causes of action
the County may have against Contractor or its surety under any other provision of this Contract
or any provision of law.
ARTICLE 16
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Dispute Resolution
16.1 Good Faith Negotiation: Arbitration.
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(a) The parties shall attempt to resolve any and all disputes to the mutual
satisfaction of both parties by good faith negotiations.
(b) Whenever a party desires to initiate the dispute resolution process set
forth in this Article, it shall do so by delivering a dispute notice to the other party. Upon
delivery of any dispute notice,the Representative of the recipient thereof shall deliver to
the party giving that dispute notice a signed and dated receipt therefor, which receipt shall
serve as conclusive evidence of the date upon which such dispute notice was delivered,
notwithstanding the provisions of Section 2.12.Within five (5) days after the delivery of a
dispute notice,the parties shall meet for the purpose of negotiating a resolution of the
dispute.
(c) Subject to the conditions and limitations of this Article, controversies or
claims arising out of or relating to Compensation,payments totheContractor or other
calculations under Articles 6, 7,8 and 15 of this Contract and any other unresolved disputes
designated for arbitration in the contract shall be exclusively settled byarbitration inaccordance
with this Article.All other controversies and claims shall be decided exclusively by the superior
Court of the State of Washington in Mason County,Washington, unless otherwise agreed to by
the parties.
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16.2 Initiation ofArbitration. If any dispute related to the calculation of Compensation or
any paymentto the Contractor or any other fee or cost required under this Contract Is not
resolved by negotiations of the parties within twenty(20) days after the date wither party
delivers to the other a notice of dispute, either party shall have the option to submit that
dispute for resolution pursuant to arbitration as provided in this Article by delivering a request
for final and binding arbitration to the other party(an "Arbitration Request').
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{00114212.DOCX.}Page 42 of 58
16.3 Selection and Qualification of Arbitrators.
(a) Designation.Judicial Arbitration and Mediation Services of Seattle,
Washington(JAMS) shall generate and deliverto the parties a list of five potential arbitrators.
Each party shall strike one name from the list and return the list to JAMS,which shall appointthe
arbitrator from among the remaining names.
(b) Qualifications.The arbitrator shall be anattorney licensed to practice law in
the State of Washington who has served as a full-time judge of the superior or appellate courts
of the State of Washington. He/she shall be selected from an appropriate panel of experienced
arbitrators as established by JAMS.
(c) Replacement. If the arbitrator declines to act, dies or is otherwise unable to
participate,JAMS shall designate a new arbitrator, If the impartial arbitrator declines, dies or is
otherwise unable to act, a new arbitrator shall be chosen pursuant to subparagraph (a).
16.4 Powers of Arbitrator.The arbitrator shall have full power to make such regulations
and to give such orders and directions as he/she shall deem expedient with regard to the
matters submitted to the arbitrator for resolution, as well as in respect to the mode and times
of executing and performing any of the acts, deeds, matters and things which may be awarded
or directed to be done.Without limiting the generality of the foregoing,the arbitrator shall
proceed with the following enumerated powers:
(a) Nonappearance.The arbitration may proceed in the absence of any
party or representative who, after due notice,fails to appear or fails to obtain a
continuance. However, an award shall not be made solely on the default of a party, and the
arbitrator shall require the appearing party who is present to submit such evidence as
necessary for the making of an award.
(b) Pre-Hearing Matters.The arbitrator may conduct such pre-hearing conferences as are
necessary in his/her discretion to expedite and resolve the dispute.There shall be no
discovery or dispositive motion practice except as may he permitted by the arbitrator;
provided, however,that any such discovery or dispositive motion practice shall not
conflict with or extend the time limits specified herein. If the arbitrator decides,in his or
her sole discretion,that independent experts should be retained to determine particular
issues,the arbitrator may retain such experts at the parties' expense and may award
such expenses as part of the award in favor of the prevailing party.
16.5 Conduct of Proceedings.
(a) Rules.The arbitrator shall not be bound by any rules of civil procedure or
evidence, but rather shall conduct the hearing and other proceedings in a fair and equitable
manner.
{00114212.DDCX.}Page 43 of 58
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(b) Hearing Date and Duration.The arbitration hearing shall commence not
later than 30 calendar days after the appointment of the arbitrator.
(c) Evidence.The arbitrator may require the parties to submit certain evidence
by written declaration or in such other manner as the arbitrator deems appropriate.The
arbitrator shall consider such written and oral testimony as reasonable businesspersons would
use in the conduct of their day-to-day affairs. Live testimony and cross-examination shall be
limited to that necessary to insure a fair hearing to the parties.
(d) Venue.The arbitration hearing shall be held in Shelton,Washington, unless
all parties agree otherwise.
16.6 Decision.The arbitrator shall make his or her award within thirty(30)days
following the conclusion of the arbitration hearing. In rendering the award,the arbitrator shall
set forth written findings of act and conclusions of law.The award shall be final and binding
upon the parties, subject to the right of appeal and trial de novo in the manner, and within the
time for appeal specified for cases subject to mandatory arbitration under RCW Chapter 7.06,
provided that the time within which an appeal may be brought shall run from the date of
receipt of notice of the award by the appellant.The appellant shall file the award and notice of
and serve the notice of appeal on all other parties within the
appeal with the Superior Court n pp
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time period for bringing the appeal.The provisions of this Section shall constitute a stipulation
to enter into arbitration-pursuant to the Superior Court Mandatory Arbitration Rules (MAR)
within the meaning of MAR 8.1, provided the right to arbitrate,conduct of arbitration shall be
a
governed by this Contract and not the MAR, except that MAR 7.1, 7.2, 7.3 and 8.1 shall apply
with respect to appeals.
16.7 Provisional Remedies. Pending the selection of the arbitrator, any party may
request JAMS to appoint an arbitrator for the limited purpose of awarding preliminary relief.
This award may be immediately entered in any Federal or State court having jurisdiction thereof
even though the decision on the underlying dispute may still be pending.Once appointed,the
arbitrator may, upon request of a party, issue a superseding order to modify or reverse such
preliminary relief or may himself/herself order preliminary relief pending a full hearing on the
merits of the underlying dispute.Any such initial or superseding order of preliminary relief may
be immediately entered in any Federal or State court having jurisdiction thereof even though
the decision on the underlying dispute may still be pending.Such preliminary relief may be
granted by the arbitrators only after notice to and opportunity to be heard by the opposing
party unless the party applying futility by giving notice.
16.8 Final Remedies•Arbitrator's Fees.The arbitrator may grant any remedy or relief
that the arbitrator deems to be just, equitable and within the scope of the parties'agreement,
Including specific performance of a Contract or injunctive relief,provided, however,that the
arbitrator may not award any punitive or exemplary damages. Each party shall be responsible
{00114212.DOCX.)Page 44 of 58
for its own attorney fees and costs.The arbitrator's fees and arbitration expenses shall be borne
equally among the parties.
16.9 No Consolidation.There shall be no consolidation of any arbitration between the
County and the Contractor with any other arbitration involving, arising from or relating to the
Project without prior written approval from the County,which approval from the County shall
be reasonably given.
16.10 Expedited Procedures In the event that the County determines, in its sole
opinion,that the public interest requires a speedy resolution of any arbitrable controversy
or claim regardless of the amount,the County shall have the option of electing resolution
of the controversy or claim by the Expedited Procedures of the Commercial Arbitration
Rules of the American Arbitration Association (Rules 54through 58).
16.11 Venue.The parties agree that proper venue for any judicial proceeding to enforce
any decision or award made by an arbitrator under this Section shall be exclusively in Mason
county in the State of Washington.
16.12 Attorney Fees. In the event suit or action or arbitration is Instituted to enforce any
right granted herein,each party shall be responsible for payment of its own attorney fees and
costs unless otherwise indicated in this Contract.
16.13 Standing. Only the County and the Contractor shall have standing to bring or
become a party to arbitration claims or legal action under this Contract.
ARTICLE 17
Successors Assignment
17.1 Contractor Delegation.The County executes this Contract with the Contractor as a
qualified party to accomplish the Project.The Contractor's delegation of any Contract duties
shall require the prior written consent of the County.Any delegation of duties shall not relieve
the Contractor or the Surety of any liability and/or obligation to perform.
17.2 Assignment.The Contractor shall not assign any rights or obligations under or
arising from this Contract without the prior written consent of the County unless otherwise
permitted under Section 17.3.
17.3 Change in Control or Ownership.Any direct or indirect change In control or the
transfer of a direct or indirect controlling interest in the beneficial ownership of the Contractor
shall constitute a Class B default under the terms of this Contract unless the County consents to
that transfer. "The transfer of a direct or indirect controlling interest of Contractor" shall
include, but is not limited to,the transfer or assignment of twenty-five percent(25%) or more
of the beneficial ownership of Contractor to or from a single entity, unless the County consents
{00114212.DOCX.}Page 45 of 58
to that transfer or assignment; however,the following transfers or assignments shall not be
construed as"the transfer of a controlling interest bf Contractor":
(a) intra-company transfers in the form of transfers between different
subsidiaries or branches of the Contractor's parent corporation, or
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(b) if the Contractor,or its parent corporation, is a closely held corporation,
transfers or assignments between Individuals who own, in whole or in part,the parent or any j
subsidiary including transfers orassignments between or to
(i) the individuals who own, in whole or in part,the parent or any
subsidiary,
(ii) the spouses, surviving spouses and linear descendants (Including
adopted children) of the Persons described in (b)(i),above,
(III) a trust estate,corporation, partnership or other entity owned by the
Persons described in (b) (1),above and
c' capacity for the
'v a corporate trustee designated to act in a fiduciary y
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( ) p g I
estate or trust of any Person described in (b)(i), above.
Notwithstanding the foregoing,the County may in its sole discretion and at Contractor's sole
expense(including but not limited to the County's attorney's fees, if any) determine that new
ownership can adequately and faithfully render the service called for in this Contract for the
remaining Term of the Contract, and the County may then elect to execute a novation,allowing
new ownership to assume the rights and duties of this Contract and releasing the previous
ownership of all obligations and liability.The new ownership would then be solely liable for any
work and/or claims related to this Contract.
17.4 Binding Effect.This Contract shall bind and inure to the benefit of the successors or
assigns hereto,whether by merger, consolidation,transfer of assets or transfer of ownership of
the Contractor.
ARTICLE 18
Dissolution of the County and Successor to the County
In the event that the County is dissolved of its solid waste functions and powers relative to this
Contract are taken from the County by legislative act or by referendum of the people or by
agreement, all of the duties, rights, and remedies of the County under the Contract, including,
but not limited to,all bonds executed for this Contract,shall remain in full force and effect, and
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shall be transferred to either:
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(a)the successor to the County as specified by the legislative act or referendum by
which the County is dissolved; or,
{00114212.DOCX.)Page 46 of 58
(b)if no successor to the County is specified bythereIevant legislation or
referendum,the State of Wash ingtonshall be deemed to be the successor to the County
underthis Contract.
ARTICLE 19
Term: Option to Renew
19.1 Term.The Term of the Contract shall begin on its execution, and unless renewed or
sooner terminated by the County as provided in this Contract,shall end ten (10) years from the
date Contractor commences Solid Waste transportation services hereunder.
19.2 Option to renew.
(a)The parties shall have the right to request to renew the Contract for two (2)
additional ten (10)-year periods under the same provisions and for the same Compensation
calculated in accordance with Article 8 of this Contract, as may be adjusted from time to time.A
party shall give the other party 180 days written notice of its intention to exercise its option to
renew the Contract, and the receiving party shall provide either its acceptance or rejection of
the renewal within thirty(30) days of its receipt of the notice of intention to exercise the
renewal option.
(b) In the event the parties elect to renew the Contract,the Contractor must
provide,to the County at least 90 days before the expiration of the then current ten (10) -year
period, a new letter of credit or other financial guarantee acceptable to the County in Its sole
discretion pursuant to Section 6.4, and such acceptance shall not be unreasonably withheld,
conditioned or delayed.
(00114212.DOCX.)Page 47 of 58
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DATED this `3� day of FpbyxAaN 2024,
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MASON COUNTY GARBAGE BOARD OF MASON COUNTY COMMISSIONERS
MASON COUNTY,WASHINGTON
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By: Sharon Trask, Chair
�- lk
Signature Randy``Neatherlin,Vice Chair
Act P/LS to raj-1
Title Kevin Shutty, Co missioner
APPROVE AS TO FORM:
Tim Whiteh ,
{00114212.DOCX.}Page 48 of 58
EXHIBIT A
PERFORMANCE BOND
{00114212.DOCX.}Page 49 of 58
EXHIBIT B
CERTIFICATE OF INSURANCE
{00114212.DOCX.}page 50 of 58
EXHIBIT C
TECHNICAL REQUIREMENTS
This section specifies minimum requirements for the operation of the solid waste transportation
services.The requirements established herein are the minimum prescribed requirements and are
not intended in any way to be inclusive or in any way to limit the Contractor to specific procedures
or methods, but rather are intended to ensure the expected quality of solid waste transportation
operation and maintenance.
Trailers
It is the intent of this section to ensure that Contractor equipment is suitable for long distance
transport.Trailers shall be rigid and durable, corrosion resistant, nonabsorbent,easily cleanable,
have watertight seals up to 18"above the floor,and suitable for handling with no sharp edges or
other hazardous conditions.Trailers shall be capable of withstanding the hard use typically
associated with handling solid waste.
Trailers shall be designed,engineered,and rated to always perform satisfactorily and safely.Trailers
shall be a maximum height of 14' (measured from ground)and shall have a width that does not
require special permits for use on public roads. Overall outside length, height, bridge span and
distance between axles of trailers when combined with tractor shall conform to all applicable, local,
state and federal regulations.
Trailers shall be of a top load design and shall be suitable for in-Trailer compaction of waste.
Trailers shall be outfitted with a system to, in five minutes or less,easily net and tarp the top of
trailer to 100%preventfugitive trash releases and rainwater accumulations.
Trailers shall be designed to allow dissipation of heat and expanding gases that may be generated
during storage or transport to the disposal site.
Maintenance and Repairs
Trailers shall be maintained bythe contractor in accordance with the manufacturer's recommended
maintenance schedule and shall be always maintained in a safe working condition.Trailers shall be
inspected at least monthly for corrosion, leaks,loose-fitting doors, holes or other damage to the top
closing mechanism,seals,siding,frames,or other damage incurred during transport and disposal of
waste and repaired as necessary.
Each time the trailer is emptied, all waste shall be removed from the trailer and the contractor shall
clean trailers as necessary to comply with the requirements of the jurisdictional health
department(s) and to mitigate malodor, unsightliness,or attraction of vectors.
If a trailer is damaged during loading the Contractor shall repair the trailer.The County will
reimburse the Contractor for all reasonable costs or repairs,or replacement of Trailers damaged
through gross negligence of a Transfer Station operator.The Contractor,at its own expense,shall
repair or replace trailers as necessary due to normal wear and tear.
{00114212.DOCX.)Page 51 of 58
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Provision and Storage Requirements
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A staging area will be provided at the transfer station where the Contractor shall deliver empty
trailers and accept loaded trailers and may store empty and loaded trailers.Trailer provision and
storage requirements include the following:
The Contractor shall provide sufficient trailers to allow 2.0 times y Tons to be removed from
the station each day,where y is the highest average tons per day recorded for any service
month in the most recent 12 months service under the contract.
The Contractor shall conduct its operation so that the Transfer Station throughput is less
than or equal to the daily maximum set forth above at least one empty trailer is available at
the transfer station.
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Loaded Trailers shall be stored at the staging area a maximum of 48 hours.
The Contractor shall communicate with the Solid waste Program Manager daily to ensure an
adequate number of trailers are provided.
Personnel
Contractor personnel shall be trained as required for specific tasks or functions in accordance with
the specific responsibilities set forth in the Agreement for the various elements of this program.
During periods of sickness and vacation,additional personnel must be available for the continued
and uninterrupted operation of this collection program in the usual manner.
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LITTER CONTROL
It is the responsibility of the Contractor to provide litter control when they are picking up loaded
trailers. Litter control shall include: pickup of trailer staging area,sweeping of area to remove broken
glass and other small debris, removal of trash and material deposited on the ground outside the
containers. IT IS EXPECTED THAT TRAILER STAGING AREA WILL BE KEPT CLEAN AND LITTER FREE AT
ALL TI M ES.
The Contractor shall provide a contact name and phone number to the County, for site personnel to
report and request litter pickup. Response to requests for litter control shall be made within four
hours, during business hours, or as soon as is reasonably feasible when notification for cleanup is
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EXCLUDED WASTE
County agrees not to deposit in Contractor's equipment or place for collection by Contractor any
radioactive, volatile, corrosive, highly flammable, explosive, biomedical, infectious, biohazardous,
toxic or hazardous material as defined by applicable federal, state or local laws or regulations
("Excluded Waste"). County agrees to comply with any description of and/or procedures with respect
{00114212.DOCX.)Page 52 of 58
to removal of contaminants or preparation of recyclable materials as reasonably provided by
Contractor. Title to and liability for any Excluded Waste shall remain with the producer of said waste.
HAZARDOUS MATERIALS
Means any material which:
(a) is required to be accompanied by a written manifest or shipping document describing the
material as"hazardous waste" or"dangerous waste",pursuant to the generator's state,Washington
or federal law, including, but not limited to,the Resource Conservation and Recovery Act,40 CFR,
Part 260-272,et seq.as amended, and all regulations promulgated thereunder and any such state
equivalent or similar law;
(b) contains polychlorinated biphenyl or any other substance the storage,treatment or disposal
of which is subject to regulation under the Toxic Substances Control Act,40 CFR, Part 761, et seq. as
amended, and all regulations promulgated thereunder and any such state equivalent or similar law;
(c) contains a radioactive material the storage or disposal of which is subject to state or federal
regulation;or
(d) is designated under the generator's state, Washington or federal law or regulation as a
"dangerous waste", "toxic waste", "hazardous waste", "extremely hazardous waste" or"acutely
hazardous waste".
DATA COLLECTION
The Contractor shall keep all transactions connected with this Agreement during the term of the
Agreement and for six (6) years after the Agreement's expiration including, but not limited to all
correspondence and invoices,weigh tickets or receipts issued at the Transfer Station or Disposal Sites.
The Contractor shall at all times maintain an accounting system that uses generally accepted
accounting principles consistently applied for all services rendered and materials supplied, including
additional and deleted work,in connection with this Agreement.
ACCIDENT REPORTS
The Contractor shall promptly report in writing to the Deputy Director of Utilities/Waste
Management, or their designee, all accidents whatsoever arising out of, or in connection with the
performance of the work whether on,or adjacent to,the sites;giving full details and statements of
witnesses. In addition,should death,serious injuries,or serious damage occur,the accident shall
be reported by the Contractor immediately by telephone or messenger to the Deputy Director of
Utilities/Waste Management or their designee.
(00114212.DOCX.)Page 53 of 58
EXHIBIT D
ALTERNATE OPERATIONS AND FACILITIES PLAN
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In the event that the designated Disposal Facility is not available to accept Acceptable Waste
transported by Contractor, Contractor shall deliver such waste to one of the two below
alternate Disposal Facilities,which are listed in order of preference.
1. First,to:
Wasco County Landfill
Transportation: $61.35 per ton
Disposal Services:$27.00 per ton
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2. If(1)above is not available to accept Acceptable Waste,then second to:
Finley Buttes Landfill:
Transportation: $76.15 per ton
r Disposal Services:$23.00 per ton
The above rates shall be subject to the same rate adjustment provisions contained in the
Agreement, including but not limited fo annual CPI adjustments with respect to "transportation
and disposal" and fuel surcharges with respect to transportation.
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(00114212.DOCX.)Page 54 of 58
EXHIBIT E
EMERGENCY OPERATIONS PLAN
Within one hundred and eighty(180) days of the parties' execution of this Agreement,the
parties shall mutually approve an emergency operations plan and incorporate such approved
plan herein in this Exhibit E.
{00114212,DOCX.}page 55 of 58
EXHIBIT F
FUEL ADJUSTMENT CHART
Fuel Cost Percent Fuel Rate Incr(Decr)
Per Gallon Incr.(Decr.) Per Ton From Base Rate
$3.00 -33.3% $4.56 -$2.28
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$3.05 -32.2% $4.64 $2.20
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$3.10 -31.1% $4.71 -$2.13
$3.15 -30.0% $4.79 -$2.05
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$3.20 -28.9% $4.86 -$1.98
$3.25 -27.8% $4.94 -$1.90
$3.30 -26.7% $5.02 -$1.82
3.35 -25.6% $5.09 $1.75
$3.40 -24.4% $5.17 -$1.67
$3.45 -23.3% $5.24 -$1.60 j
$3.50 -22.2% $5.32 -$1.52
$3.55 -21.1% $5.40 -$1.44
$3.60 20.0% $5.47 -$1.37
$3.65 -18.9% $5.55 -$1.29
$3.70 -17.8% $5.62 -$1.22
$3.75 -16.7% $5.70 $1.14
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$3.80 -15.6% $5.78 -$1.06
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$3.95 -14.4% $5.85 -$0.99
$3.90 -13.3% $5.93 -$0.91
$3.95 -12.2% $6.00 -$0.84
$4.00 -11.1% $6.08 -$0.76
$4.05 -10.0% $6.16 -$0.68
$4.10 8.9% $6.23 -$0.61
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$4.15 -7.8% $6.31 -$0.53
$4.20 -6.7% $6.38 -$0.46
$4.25 -5.6% $6.46 -$0.38
$4.30 -4.4% $6.54 -$0.30
$4.35 -3.3% $6.61 -$0.23
$4.40 -2.2% $6.69 -$0.15
$4.45 -1.1% $6.76 -$0.08
$4.50 0.0% $6.84 $0.00
$4.55 1.1% $6.92 $0.08
$4.60 2.2% $6.99 $0.15
$4.65 3.3% $7.07 $0.23
$4.70 4.4% $7.14 $0.30
f E$475 5.6% $7.22 $0.38
6.7% $7.30 $0.46
7.8% $7.37 $0.53
8.9% $7.45 $0.61
$4.95 10.0% $7.52 $0.68
$5.00 11.1% $7.60 $0.76
$5.05 12.2% $7.68 $0.84
$5.10 13.3% $7.75 $0.91
$5.15 14.4% $7.83 $0.99
$5.20 15.6% $7.90 $1.06
$5.25 16.7% $7.98 $1.14
$5.30 17.8% $8.06 $1.22
$5.35 18.9% $8.13 $1.29
$5.40 20.0% $8.21 $1.37
$5.45 21.1% $8.28 $1.44
{00114212.DOCX.}Page 57 of 58
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$5.50 22.2% $8.36 $1.52
$5.55 23.3% $8.44 $1.60
$5.60 24.4% $8.51 $1.67
$5.65 25.6% $8.59 $1.75
$5.70 26.7% $8.66 $1.82
$5.75 27.8% $8.74 $1.90
$5.80 28.9% $8.82 $1.98
$5.85 30.0% $8.89 $2.05
$5.90 31.1% $8.97 $2.13
$5.95 32.2% $9.04 $2.20
$6.00 33.3% $9.12 $2.28
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