HomeMy WebLinkAboutRES 168 Draft 02 1996-1998
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COUNTY OF HAWAII
STATE OF HAWAII
RESOLUTION NO.
168 97
( D RAF T ~)
RESOLUTION TO AUTHORIZE AMENDMENT OF THE MULTI-YEAR
CONTRACT FOR THE CONSTRUCTION, OPERATION AND CLOSURE OF THE
WEST HAWAII LANDFILL.
WHEREAS, Resolution 49-93 authorized the. multi-year contract with Waste
Management of Hawaii, Inc. (WMI) for the construction and operation of the West
Hawaii Landfill; and
WHEREAS, the County entered into a contract with WMI for the construction and
operation of the West Hawaii Landfill dated April 21, 1993; and
WHEREAS, the Hawaii Supreme Court's ruling in Konno v. County of Hawaii,
85 Hawai'i 61, 937 P.2d 397 (1997), held that the WMI contract violated civil service
laws by privatizing work that had "historically and customarily" been done by civil
service workers; and
WHEREAS, Third Circuit Court Judge Riki May Amano on remand has ruled that
WMI may continue to do cell preparation, conduct closure and post-closure maintenance
at the West Hawaii Landfill; and
WHEREAS, the County of Hawaii desires to continue those portions of the WMI
contract that are not in violation of the Supreme Court's order in Konno; and
WHEREAS, the County, through its Department of Public Works, and WMI have
agreed to amendments to the existing contract to reflect the new scope and conditions of
work; and
WHEREAS, Section 9.4 of the current contract requires that any amendments to
the agreement be made in writing and include all formalities including council approval;
and
WHEREAS, Section 10-11 of the Hawaii County Charter requires approval by the
Hawaii County Council of any contract or obligation that requires payment of funds from
the appropriation of a later year;
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NOW, THEREFORE, BE IT RESOLVED BY THE COUNCIL OF THE
COUNTY OF HAW All that it authorizes the County of Hawaii to amend the contract
with Waste Management of Hawaii, Inc., dated April 21, 1993, as set forth in the
addendum (attached Exhibit A), for a multi-year period.
BE IT FURTHER RESOLVED that the County Clerk be and is hereby directed to
forward a copy of this resolution to the Chief Engineer, Director of Finance and Mayor,
and that the Director of Finance is hereby authorized to make any necessary transfers in
accordance with the terms of the resolution.
DATED: Hilo, Hawaii,
October 15, 1997
INTRODUCED BY:
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TY OF HAWAII
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COUNTY COUNCIL
County of Hawaii
Hilo, Hawaii
I hereby certify that the foregoing RESOLUTION was by the
vote indicated to the right hereof adopted by the COUNCIL ofthe
County of Hawaii on October 15, 1997
ATTEST:
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COUNTY CLE
ROLL CALL VOTE
AYES NOES ASS EX
ARAKAKI X
CHUNG X
LEITHEAD-TODD X
RAY X
REYNOLDS X
SANTANGEW X
SMITH X
TYLER X
YAGONG X
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Reference
Comm.
527.01/Collnci'1
RESOLUTION NO.
168 97
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ADDENDUM NO.1 TO LANDFILL CONSTRUCTION. OPERATION
AND CLOSURE AGREEMENT BETWEEN THE COUNTY OF
HAWAII AND WASTE MANAGEMENT OF HA WAIL INC.
DATED APRIL 21. 1993
THIS FIRST ADDENDUM is made and entered into as of this ~ '1~ day of
O~e..v
, 1997, by and between the COUNTY OF HA WAIl (hereinafter "County")
and WASTE MANAGEMENT OF HA WAIl, INC. (hereinafter "Contractor");
WITNESSETH:
WHEREAS, the onginal agreement between the County and Contractor was entered into
on April 21, 1993, and called for the landfill construction, operation and closure of the
Puuanahulu Landfill; and
WHEREAS, the Hawaii Supreme Court's decision in Konno v. County of Hawaii,
85 Hawai'i 61, 937 P .20 397 (1997), found that the Contractor's operation of the Puuanahulu
Landfill violated civil service laws by privatizing functions that were "customarily and
historically" done by civil service employees; and
wHEREAS, Third Circuit Court Judge Riki May Amano has ruled that cell preparation,
closure and post-closure maintenance are areas of work that can still be contracted to Contractor;
and
WHEREAS, the parties have agreed to the amendment of the original contract as set forth
below; and
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WHEREAS, it is expressly agreed by the parties that this addendum is supplemental to
the contract of April 21, 1993, which is by reference made a part hereof, and all the terms,
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conditions and provisions of that contract, unless specifically modified by this addendum, are
still applicable and made a part of this agreement; and
WHEREAS, in the event of any conflict, inconsistency or incongruity between the
provisions of this amendment and any of the provisions of the contract of April 21, 1993, the
provisIOns of this amendment shall govern and control;
NOW, THEREFORE, in consideratio~ of the promises and of the mutual covenants and
agreements contained herein, the following sections are amended as follows:
2.4 Contractor's Responsibilities
(a) The Contractor shall perform all of the activities and services necessary
,for cell preparation, closure, and environmental monitoring at the Facility as required by and
described in the operating plan filed with and approved by the Department including, but not
limited to excavation, transport of on-site borrow material as initial and intermediate cover;
leachate collection, recirculation, temporary storage and if necessary, conveyance to a poin~ of
off-site disposal designated by County; on-site erosion control measures and stormwater
management facilities; on-site utilities; required maintenance of equipment and facilities; and
incidental maintenance. Contractor shall not be responsible for installation or operation of the
scales, but shall maintain the scales. Contractor shall not be responsible for the placement or
compaction of solid wastes. Contractor shall deliver to the working face, suitable cover material
which will be placed and compacted by County employees.
(b) The Contractor shall provide all superintendence; labor; and materials,
equipment, tools, supplies and utilities required for cell preparation, closure and post-closure
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maintenance of the Facility. The Contractor shall at all tlmes have staffing and equipment
necessary to support County operations of the Facility at waste loading up to 400 tons per day.
Upon reasonable notice by County, the Contractor shall provide staffing and equipment adequate
to support County operations of the Facility at increased waste loading rates. When Contractor's
employees and equipment are utilized, the County will pay to Contractor hourly pay rates
equivalent to rates incorporated in the County's latest price term agreement for similar
equipment. Similar may not necessarily mean equivalent. County shall furnish Contractor its
existing price term agreement.
In the event of incidents or emergencies at the working face, the Contractor will
direct the remedial activities as described in Section 8.0, Emergency Operating Procedures of the
Operations Manual, to resolve the situation. If necessary, the Contractor will augment the
County's work force with its own work force, including its own equipment, to ensure a
satisfactory resolution to the incident or emergency. The Contractor will be paid for the use of
its work force and equipment at a mutually agreeable price. The Contractor shall be required to
submit detailed cost pricing data to justify all charges.
(c) The Contractor shall employ the services of an independent Hawaii
certified laboratory to sample and analyze groundwater from the monitoring wells. Numbers and
locations of the wells shall be in accordance with construction drawings documenting the
construction permit application and as shown in the operating plan and the groundwater
.monitoring plan as approved by the Department. Number and frequency of samples, sampling
and analytical procedures, parameters analyzed and test reporting requirements shall comply
fully with applicable provision of the approved operating and groundwater monitoring plans.
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The Contractor shall promptly furnish to County a copy of each laboratory monitorIng report.
The County is authorized to obtain the result of any test directly from the laboratory.
(d) Contractor shall excavate rock from the Facility only as necessary for cell
development and Site operations. Contractor is entitled to crush, stockpile and use as much
excavated rock as is necessary for all construction, supplying daily and intermediate cover
material, closure and post-closure requirements on the Site. Contractor may apply to any agency
with jurisdiction for ~pproval to sell excess rock excavated from the Site in order to defray
Contractor's expenses. Contractor or controlled subsidiaries shall not conduct retail sales to the
public of excess rock.
(e) Contractor shall be paid on the basis of tonnage received at the Facility
and is fully authorized to engage in materials recovery activities to lessen the volume of solid
waste which is landfilled. Contractor shall maintain records of the amount of solid waste
diverted from landfilling by its materials recovery efforts and shall periodically report such
information to County. Nothing herein shall require Contractor to engage in materials recovery.
(f) In the event Contractor intends to do any mining of the Facility to recover
landfilled solid waste, it shall first negotiate an agreement with County for an equitable sharing
of revenues from the mining operation.
(g) The Contractor shall train County employees in the receipt and
compaction of solid waste and the spreading of initial and intermediate cover so that County
employees can perform such functions in compliance with the Operating Plan and achieve
compaction rate standards currently being achieved by Contractor. In performing such training
Contractor shall not be responsible for disciplining nor directly supervising County's employees,
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but shall have the authority to advise the County's supervisors if any discrepancies are observed
that may have an adverse environmental, financial or other impact on the Site.
3.3 Waste Intake. County shall with its own forces and equipment or under separate
contract, arrange for receipt of solid waste at the Facility and charge its customers. County shall
provide all superintendence, labor, and equipment necessary to perform all functions and services
necessary for waste intake including but not limited to the direction of solid waste into the
Facility, the detection of special and hazardous waste, the spreading and compaction of solid
waste, and the spreading of initial and intermediate cover material or other matters which are not
the responsibility of Contractor as set forth herein.
4.0 UNACCEPTABLE AND SPECIAL WASTE PROCEDURES
4.1 Right to Refuse Unacceptable Waste. The Contractor shall not be required to
accept any waste at the Facility that the Contractor determines to be an Unacceptable Waste. The
Contractor and County shall conform to the industry standards in monitoring the receipt of Solid
Waste to discourage the delivery of Unacceptable Waste. County employees will be responsible
for the separation and removal of Unacceptable Waste (i.e. waste tires, white goods, batteries,
etc.).
Contractor may require transporters that deliver waste to the Facility to execute a
Special Waste Agreement; as described below, representing that no Unacceptable Waste will be
delivered to the Facility.
The County will handle all Unacceptable Waste delivered to the Facility in
accordance with the operating permits and applicable statutes and require, if possible, that the
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responsible transporter remove waste determined by the Contractor tb be Unacceptable Waste. If
the Unacceptable Waste is not removed from the Contractor's posses~ion by the transporter
wi thin a reasonable time, not to exceed twenty-four hours after disc+ery 0 f the receipt of the
waste matenal, the Contractor and/or County will arrange lawful disposal of the waste. County
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will refund Contractor its reasonable expenses and charges for handling, loading, preparing,
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transporting, storing and disposing of such Unacceptable Waste.
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6.6 Application for Payment. At monthly intervals, the Contractor shall make written
application for payment for the prior month's services. Applications shall be made at such times,
agree that fees will be negotiated in good faith by the parties.
i~ such numbers of copies, and in such fonn as reasonably directed ~y County. As a minimum,
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the application for payment form shall include a daily summary for the month for which
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application is made, differentiating between non-operating and oper*ing days. Daily tonnage
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figures shall be based on, and coincide with, scale operators' tonnag~ records.
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In the event that the average daily tonnage per operating day during any month is
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less than one hundred fifty tons or more than four hundred tons, the parties acknowledge and
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AMENDED EXHIBIT B
Solid Waste. The disposal fees for solid waste shall be based upon the average daily tonnage of
solid waste received at the Facility in each calendar month. The total tonn';\ge received for the
months shall be divided by the number of operating days in the month to detennine the Average
Tons Per Day. County shall pay a per ton price at the end of each month based on the Average
Tons Per Day received during the month, according to the following schedule:
Average Tons Per Day
Disposal Fee Per Ton*
200 - 249
250 - 299
300 - 349
350 - 399
$48.72
$42.00
$36.00
$33.00
* inclusive of Hawaii General Excise Tax.
The above disposal fees shall be adjusted as provided in Section 6 of the Agreement.
Should the average daily tonnage of solid waste received at the Facility in a calendar month fall
between 150 to 199, the County shall pay on the basis of 200 tons per day having been the
average tonnage.
Pick-Up Trucks.
Pick-up trucks will be weighed in and out and Contractor will be
compensated as provided in Section 6 of the Agreement for the receipt and disposal of Solid
Waste so delivered.
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IN WITNESS WHEREOF the parties hereto have hereunto set their hands
and agreed to Addendum No. 1 and Amended Exhibit 8 as set forth above the day and
year first above written.
WASTE MANAGEMENT OF
HAWAII, INC.
By ~Af.~."~
Its P,", "D'" ;::ers")~"'T/<;~", 1"1G/l.,
By
Its
APPROVED AS TO FORM
AND LEGALITY:
~dtA~
De CorporatIon Counsel
County of Hawaii
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STATE OF HAWAII )
) SS.
COUNTY OF HA WAIl )
On this ~ 'l~ day of
() c.4-o bt.v
, 1997, before me personally
appeared STEPHEN K. YAMASHIRO, to me personally known, who, being by me duly
sworn, did say that he is the Mayor of the County of Hawaii, a municipal corporation of
the State of Hawaii; that the seal affixed to the foregoing instrument is the corporate seal
of said County of Hawaii; that the foregoing instrument was signed and sealed in behalf
of the County of Hawaii by authority given to said Mayor of the County of Hawaii by
Section 5-1.3(g) of the County Charter, County of Hawaii (1991), as amended; and said
STEPHEN K. YAMASHIRO acknowledged said instrument to be the free act and deed
of said County of Hawaii.
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Notary ubl1c, State of Hawall
My Commission Expires:~ 110 I ~ Dol
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STATE OF HAWAII )
) SS.
COUNTY OF HAWAII )
On this 77th day of O~tober
, 1997, before me appeared
RAY A. ROSSETTI
and
to me personally known, who, being by me duly sworn, did say that they are the
DIVISION PRESIDENT/GEN. MGR. and
respectively, ofW ASTE MANAGEMENT OF HA WAIl, INC., a Hawaii corporation;
that the seal affixed to the foregoing instrument is the corporate seal of said corporation;
that said instrument was signed and sealed in behalf of said corporation by authority of
its Board of Directors; and that said DIVISION PRESIDENT/GEN. MGR.
and
acknowledged said instrument to be the free
act and deed of said corporation.
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G J..-U-, ~- t-:'7'C L c-
- . Notary Public, State of Hawaii
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WASTE MANAGEMENT OF HAWAII. INC.
CERTIFICATE OF THE ASSISTANT SECRETARY,
I, Howard S. Yamaguchi, the duly elected Assistant Secretary
of Waste Management of Hawaii, Inc., a Hawaii corporation (the
"Corporation"), hereby certify that the following is a true
and complete copy of a resolution of the Board of Directors of
the Corporation duly adopted by unanimous written consent,
which resolution has not been modified, amended or recinded
and is in full force and effect.
RESOLVED, That the Corporation be and is hereby
authorized and directed to enter into negotiations,
execute such instruments and take such action as
may be necessary to implement the agreement
entitled Landfill Construction, Operation and
Closure Agreement between The County of Hawaii and
Waste Management of Hawaii, Inc. effective April
21, 1993.
FURTHER RESOLVED: That Ray A. Rossetti, Division
President, or any Vice President of the
Corporation, be and is hereby authorized, directed
and empowered to execute and del i ver for and on
behalf of the Corporation,'any and all agreements,
contracts, documents, certifications, deeds and
memoranda deemed by him to be necessary and
appropriate to effect the herein authorized
resolution.
DATED: April 21, 1993
Howard S.
t Secretary
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Resolution
of the
Board of Diredon
of
Waste Maaagemeat, lAc.
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I, Herbert A Getz, do hereby certify that I am the duly appointed and qualified Secretary of
Waste Management, Ine., a corporation org~ni7ed and existing under the laws of the State of
Delaware, and that the following is a true and corred copy of certain resolutions duly adopted by
the Board of Directors of said corporation on the 29th day of May, 1992, and that such resolutions
are now in full force and effect and have not been amended or superseded and are not in
contravention of, or in conflict with, the by-laws or the charter or certificate of incorporation of
said corporation.
RESOLVED, that any two of the 'following officers of this corporation:
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INCUMBENT
Phillip B. Rooney
President
Senior Vice President, Chief Financial
Officer and Treasurer
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James B. Koenig
Herbert A Getz
Jerome D. Girsch
Thomas C. Hau
Thomas R. Frank
Vice President and Secretary
Vice President
Vice President and Controller
VicePresi.dent
Vice President
William P. Hulligan
Ronald M. Jericho
Staff Vice President - Fmance
Staff Vice President - Treaswy
Susan C. Nustra
4 ~ WHEREOF, I bave subscribed my name u SeCI'
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be, and hereby are, authorized, upon such terms and conditions as they shall deem proper, to
obtain loans and loan commitments, to authorize foreign eY~hA"ge, interest rate and aurency
exchange transactions, to purchase letters of credit and to extend guarantees for, on behalf and in
the name of this corporation or any of, its subsidiaries, to incm liabilities in coDDeCtion therewith
and in connection with the purChSll~ sale or negotiation of any bills of ex~hSll"ge, letters of credit,
acceptances, drafts, bills of 18111"& and amilar instruments, and to receive and receipt for and to
sign receipts and trust receipts therefor, and to sign, execute, and deliver any orders, notes,
applications, guarantees, instruments or other agreements in connection with any such loans,
commitments, letters of credit or guarantees, which orders, notes, applications, guarantees,
instruments and agreements may contain such provisions as they shall deem proper. '
this I ~4 day of
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