HomeMy WebLinkAboutRES 048 Draft 02 1992-1994COUNTY OF HAWAII STATE OF HAWAII
RESOLUTION N0. D~'T93
RESOLUTION TO AUTHORIZE MULTI-YEAR
CONTRACT FOR THE CONSTRUCTION AND OPERATION OF
THE WEST HAWAII LANDFILL
WHEREAS, population growth and changing Federal
government laws and regulations require that the County of Hawaii
put a new solid-waste landfill into operation; and
WHEREAS, the County of Hawaii has determined that the
appropriate site for the landfill is the one which has been
selected at Puuanahulu in West Hawaii; and
WHEREAS, the County of Hawaii has also determined that
the most efficient and cost effective means of providing solid
waste disposal is through a single long term contract to
construct the solid-waste landfill in West Hawaii and to operate
that solid-waste landfill throughout the lifetime of the
landfill; and
WHEREAS, Waste Management of Hawaii, Inc. is a
corporation with wide experience in the field of operating solid-
waste disposal systems, including landfills; and
WHEREAS, Waste Management of Hawaii, Inc. has proposed
that it construct and operate a solid waste landfill at the West
Hawaii site for the lifetime of the landfill for the County of
Hawaii; and
WHEREAS, the County of Hawaii desires to enter into an
agreement with Waste Management. of Hawaii, Inc. to construct and
operate the West Hawaii landfill, which would require payment of
funds from the appropriation of later fiscal years; and
WHEREAS, pursuant to Section 10-11 of the Hawaii County
Charter, any contract or obligation requiring the payment of
funds from the appropriation of a later fiscal year shall be made
or approved by resolution of the Hawaii County Council; and
WHEREAS, the council finds that this agreement is of
such importance to the county as to justify the expenditure of
funds from the appropriations of later years.
NOW, THEREFORE, BE IT RESOLVED BY THE COUNCIL OF THE
COUNTY OF HAWAII that it authorizes the County of Hawaii to enter
into the Landfill Construction, Operation and Closure Agreement
Between the County of Hawaii and Waste Management of Hawaii, Inc.
(attached hereto as Exhibit A) with Waste Management of Hawaii,
Inc.
BE IT FURTHER RESOLVED that the County Clerk be and is
hereby directed and instructed to forward a copy of this
resolution to the Chief Engineer, Director of Finance and the
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Mayor of the County of Hawaii, and that the Director of Finance be
and is hereby authorized to make the necessary transfer in
accordance with the terms of this resolution.
DATED at Hilo, Hawaii, this 21st
1993.
day of
BY:
April
L (•II:aL'3L1:.3~/ VV VL~11 VL' 11ffl~f]11
COUNTY COUNCIL ROLL CALL VOTE
County a1 Hawaii
Hilo. Hawaii
I hereby osrtify that the foregoing
the vote indimted to the right harepiad
of the County of Hawaii on A-~~~
ATTEST:
-~'
3N age by
COUNCIL
COUNTY CLERK CHAIRMAN & PRESIDING OFFICER
I
AYES FAES ABS EX
ARAKAICI
HflHIC-ABRAM90N X
CHILDS
DE LIMA X
DCY~4ID10D X
X
RATH X
ImSIIiILL
SQiIJTTE
2 1 0
Reterasce ~- ~ . ~-
oro'1T T7rTlTl Trl -4.9 ~v (DRAFT 2)
4/20/93
LANDFILL CONSTRUCTION, OPERATION AND CLOSURE AGREEMENT
BETWEEN THE COUNTY OF HAWAII
AND
WASTE MANAGEMENT OF HAWAII, INC.
THIS AGREEMENT, made and entered into as of the 21st day of
April, 1993, by and between the County of Hawaii (hereinafter
referred to as "County"), and Waste Management of Hawaii, Inc.,
(hereinafter referred to as "Contractor");
WITNESSETH:
WHEREAS, County has the right to use a 300 acre site in the
County of Hawaii which it is developing as an integrated solid
waste processing, recycling and disposal facility; and
WHEREAS, Contractor has experience in the operation of solid
waste processing, recycling and disposal facilities and desires
to undertake the construction, operation and closure of County's
facility;
WHEREAS, pursuant to a request for proposals dated January,
1993 and a request for supplemental quotation dated March 11,
1993, the County has selected Contractor to perform the
activities required by this Agreement;
NOW, THEREFORE, in consideration of the premises and of the
mutual covenants and agreements hereinafter contained, the
parties agree as follows:
1.0 DEFINITIONS
The following words, phrases or, terms a5 used in this
document shall have the following meaning unless the context
indicates otherwise:
"Application for Payment" means the form which is to be used
by Contractor in requesting payments and which is to include such
supporting documentation as is required by this Agreement.
"Bonds" means proposal, performance and payment bonds and
other instruments of security.
"Cell" means a discrete area of land within the Facility
used for the disposal of solid waste, individually identified on
Figure 2, typically consisting of approximately five acre units.
"Change in Law" means the enactment, adoption, promulgation,
modification or repeal after March 15, 1993 (the "Proposal Date")
of any federal, state, or local law, ordinance, code, rule or
regulation or other similar legislation or the change in
interpretation of any such law, ordinance, code, rule, regulation
or similar legislation after the Proposal Date, or addition or
imposition of any material condition in the issuance,
modification or renewal of any official permit, license or
approval necessary for operation and maintenance of the Facility
and Site which materially increases Contractor's obligations or
cost of performing its obligation under this Agreement by
establishing requirements with respect to the construction,
operation, maintenance, closure and or post-closure care of the
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Facility and Site which are more burdensome than the requirements
in effect in the County of Hawaii on the Proposal Date.
Provided, however, that no enactment, adoption, promulgation
or modification of laws, ordinances, codes, rules, regulations or
similar requirements or enforcement policy with respect to any
such requirement shall be considered a Change in Law if, as of
the Proposal Date, such law, or ordinance, code, rule, regulation
or other similar requirement was (a) officially proposed by the
responsible agency and published in the Federal Register or
equivalent federal, state or local publication and thereafter
passes in substantially the same form or (b) enacted into law or
promulgated by the appropriate federal, state or local body,
before the Proposal Date, and the comment period with respect to
which has expired on or before the Proposal Date and any required
hearings have been concluded on or before the Proposal Date in
accordance with applicable administrative procedures. In no
event shall a change in Federal, State or local income or FICA
(in the case of Federal tax law) tax law be considered a Change
in Law.
"Clean debris" means any solid waste which is virtually
inert, which is not a pollution threat to ground water or surface
waters, is not a fire hazard, and is likely to retain its
physical and chemical structure under expected conditions of
disposal or use. The term includes brick, glass, ceramics, and
uncontaminated concrete including embedded pipe or steel.
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"Closing" means the time at which a solid waste management
facility ceases to accept wastes.
"Closure" means the preparation and implementation of all
design, permitting, construction, monitoring, maintenance and
financial responsibility assurance required by or reasonably
associated with the closure and post-closure requirements set
forth in applicable laws and regulations. Closure includes, but
is not limited to, installation and vegetation of final cover,
long term maintenance, ground water monitoring, leachate
monitoring, collection and disposal, installation and operation
of a gas monitoring system, preparation and implementation of a
detailed closure plan as may be required from time to time by
permitting authorities and preparation of final surveys and as-
built drawings. The parties recognize that cost associated with
Closure are incurred at various times during the operation of the
Facility.
"Closure plan" means written reports and engineering plans
detailing those actions that will be taken by the owner or
operator of a solid waste management facility to effect proper
closure of the facility.
"Construction and demolition debris" means materials
generally considered to be not water soluble and non-hazardous in
nature, including but not limited to steel, glass, brick,
concrete, asphalt roofing material, pipe, gypsum wallboard, and
lumber, from the construction or destruction of a structure as
part of a construction or demolition project or from the
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renovation or maintenance of a structure. The term includes
rock, soils, tree remains, trees, and other vegetative matter
which normally results from land clearing or land development
operations for a construction project.
"County" means the County of Hawaii.
"Department" means the State of Hawaii Department of Health.
"DLNR" means the State of Hawaii Department of Land and
Natural Resources.
"E.P.A." means the United States Environmental Protection
Agency.
"Facility" means the landfill facilities on the Site to be
operated pursuant to this Agreement.
"Final cover" means the material used to cover the top
and/or sides of a landfill when fill operations cease at a
particular cell.
"Garbage" means all kitchen and table food waste, animal or
vegetative waste that is attendant with or results from the
storage, preparation, cooking or handling of food materials.
"Generation" means the act or process of producing solid or
hazardous waste.
"Ground water" means water beneath the surface of the
ground, whether or not it is flowing through known and definite
channels.
"Hazardous waste" means a solid waste identified as a
hazardous waste in Title 19, Chapter 342J, Hawaii Revised
Statutes.
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"Leachate" means liquid that has passed through or emerged
from solid waste and may contain soluble, suspended or miscible
materials.
"Life of Facility" means the time and activity required for
completion of solid waste recycling, processing and disposal at
the Facility, any vertical or horizontal expansions thereof, and
any additional cells which may be developed at or adjacent to the
Facility and within the Site.
"Materials recovery" means any process by which one or more
of the various components in solid waste is separated,
concentrated, reused or recycled.
"Monitoring wells" are wells from which water samples are
drawn for water quality analysis.
"Officer-in-charge" means the Chief Engineer of the County.
"Operating day" means any calendar day during which the
landfill is operating and is open for receipt of waste from
contract haulers, private commercial haulers and/or the public.
Normal operating days shall be seven days per week, New Year's
Day, Easter Day, July Fourth, Labor Day, Thanksgiving Day and
Christmas Day excluded. The normal operating hours shall be from
7:00 A.M. to 4:30 P.M.
"Person" means any and all persons, natural or legal,
including any individual, firm, association or corporation.
"Recyclable Material" means those materials which are
capable of being recycled and which would otherwise be processed
or disposed of as solid waste.
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"Recycling" means any process by which solid waste, or
materials which would otherwise become solid waste, are
collected, separated, or processed and reused or returned to use
in the form of raw materials or products.
"Recycling Area" means the area defined as such in Figure 1.
"Rubbish" shall have the meaning set forth in Section 20-31
of the Hawaii County Code.
"Site" means the area of land described and outlined at
Figure 1.
"Solid waste" means garbage, refuse, rubbish, yard trash,
clean debris, white goods, special waste, ashes, sludge, tires,
other discarded material, and any other materials which may
lawfully be accepted for disposal at the Facility.
"Special Waste" means solid waste that may be lawfully
disposed of at the Facility but which require special handling
and management.
"Subcontractor" means an individual, firm or corporation
having a direct contract with Contractor or with any other
Subcontractor for the performance of a part of the work at the
site.
"Supplier" means a manufacturer, fabricator, distributor,
materialman or vendor.
"Ton" means a short ton, 2,000 pounds (.9078 metric tons).
"Unacceptable Waste" means any and all waste that is either:
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(a) Waste which is prohibited from disposal at the Facility
by state, federal, or local law, regulation, rule,
code, ordinance, permit or permit condition; or
(b) Hazardous Waste, as defined above; or
(c) Special Waste as defined without an approved Special
Waste Agreement as described in Article 4. "Unaccept-
able Waste" shall not include residential waste unless
residential waste is prohibited by law from being
accepted at the Facility or requires special handling
pursuant to law.
"Uncontrollable Circumstances" means any act, event or
condition, (including a labor strike, work stoppage or slowdown)
that has a material adverse effect on the rights or the
obligations of a Party under this Agreement, if such act, event
or condition is beyond the reasonable control of the Party
relying thereon as justification for not performing an obligation
or complying with any condition or requirement of such party
under this Agreement. Such acts or events shall include, but not
be limited to, the following:
(a) an act of God (except normal weather conditions for the
County of Hawaii area), hurricane, volcanic eruption,
tornado, epidemic, landslide, lightning, earthquake,
fire or explosion (provided such explosion or fire is
not caused by Contractor or County), flood or similar
occurrence, an act of public enemy, war, blockade,
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insurrection, riot or civil disturbance, sabotage or
similar occurrence;
(b) the order, or injunction or judgment of any federal,
state, or local court, administrative agency or
governmental body or officer with jurisdiction in the
County, including any exercise of the power of eminent
domain, police power, condemnation or other taking by
or on behalf of any public, quasi-public or private
entity; excepting decisions interpreting federal, state
and local tax laws; provided, however, that such order
or judgment shall not arise in connection with or be
caused by the negligent or willful action or inaction
of the party relying thereon, and that neither the
contesting in good faith of any such order or judgment
nor the reasonable failure to so contest shall
constitute or be construed as a willful or negligent
action or inaction of such party;
(c) the failure to issue, or the suspension, termination,
interruption, denial, failure or renewal of any permit,
license, consent, authorization or approval essential
to the construction, operations or maintenance of the
Facility, if such failure, suspension, interruption or
denial shall not arise in connection with or be related
to the negligent or willful action or inaction of the
party relying thereon, and that neither the contesting
in good faith or any such failure, suspension,
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termination, interruption or denial nor the reasonable
failure to so contest shall be construed as a negligent
or willful action or inaction of such Party;
(d) the failure of any federal, state or local agency or
public or private utility having operational
jurisdiction in the area of location of the Site to
provide and maintain and assure the maintenance of all
utilities necessary for the construction or operation
of the Facility resulting in a delay;
(e) the failure of any subcontractor or supplier to furnish
services, material or equipment on the dates agreed to,
provided, however, that (i) such failure is (A) caused
by an act, event or condition materially and adversely
affecting the performance of such subcontractor or
supplier that would be Uncontrollable Circumstance if
it directly affected Contractor, and (B) materially,
adversely affects Contractor's ability to perform its
obligations, and (ii) Contractor is not able to obtain
substitute services, material or equipment on the
agreed upon dates without incurring a material increase
in the cost for such services, material or equipment;
and
(f) any subsurface condition which shall prevent, or
require a redesign or change or delay in, the
construction or operation of the Facility, provided,
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however, that the condition was unknown to Contractor
on or before the Proposal .Date.
"Yard Trash" means vegetative matter resulting from
landscaping maintenance or land clearing operations and includes
materials such as tree and shrub trimmings, grass clippings, palm
fronds, trees and tree stumps.
2.0 RESPONSIBILITIES OF CONTRACTOR
2.1 Phase 1.
(a) Contractor shall, jointly with County, apply for,
process and obtain a landfill operating permit and approved
operating plan from the Department; all permits shall be held by
the County in its name and shall identify Contractor as operator.
Contractor's obligations to construct and operate the Facility
are subject to the receipt of all required permits in a form
reasonably satisfactory to Contractor.
(b) Contractor shall prepare an area to receive
construction and demolition debris prior to-June 1, 1993.
(c) Contractor shall complete Tasks 1, 2 and 3 of
Phase 1 as described on Exhibit A to a degree of completion which
would allow lawful receipt of solid waste at the Facility no
later than October 9, 1993. Contractor shall provide County with
a critical path schedule for the Phase I construction period no
later than May 15, 1993. Contractors' obligation is subject to:
(i) Contractor and its subcontractors being
allowed continuous access to the site for initial land clearing
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work and commencement of Tasks 1, 2 and 3 of Exhibit A,
commencing no later than April 21, 1993;
(ii) Completion and approval of by County and
DLNR of an archeological data recovery and mitigation plan for
the Site and issuance of a grading permit no later than April 23,
1993; and
(iii) Receipt of any other DLNR or other
governmental approvals at such times as they may be required in
order not to interfere with the tasks set forth in Exhibit A.
(d) In the course of accomplishment of Tasks 1, 2 and
3, in Exhibit A, Contractor may encounter conditions which
constitute uncontrollable circumstances. Notwithstanding the
uncontrollable circumstances, Contractor shall use reasonable
efforts to keep the project on schedule and within the contract
price.. In the event uncontrollable circumstances nevertheless
cause a delay, the time to complete Tasks 1, 2 and 3 shall be
extended for a period of time equal to the delay in time due to
the uncontrollable circumstances. In the event the
uncontrollable circumstances cause a material increase in
Contractor's costs to complete Tasks 1, 2 and 3, Contractor shall
be entitled to a price increase, provided that Contractor has
supplied County with Cost Substantiation for the increased costs.
"Cost Substantiation" shall mean detailed and documented
substantiation of Contractor's increased costs which shall be
submitted for County review in such form and degree of detail as
are customary in the Hawaii public works construction industry.
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2.2 Regulatory Compliance. The Contractor shall operate
the Facility in strict conformance with the provisions of all
permits as issued. In addition thereto, the Contractor shall
comply with all conditions of the Facility's zoning and consent
orders, if any, which may be entered into from time to time.
The Contractor shall be responsible for obtaining all
permits required for performing its operations consistent with
the approved operating plan, laws, ordinances, rules and
regulations. The Contractor shall respond promptly to all
citations, notices of violation and emergency orders issued by
any regulatory agency with jurisdiction, by either contesting
same or taking any and all steps required to correct the item or
deficiency which was the subject of such citation, notice or
order, within the time specified in such instrument. Except as
otherwise provided herein, the Contractor shall pay all costs of
correcting deficiencies caused by Contractor and achieving
compliance with such citations, notices of violation and
emergency orders. Contractor shall pay any fines assessed as a
result of Contractor's non-compliance.
2.3 Superintendence of Operations. The Contractor shall
employ an operator trained in accordance with industry standards
and legal requirements to be present at all times when the
Facility is in operation to superintend operations. The
Contractor shall notify County in writing of the name of the
operator routinely assigned for each scheduled working shift.
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2.4 Operating Responsibilities.
(a) The Contractor shall ,perform all operations of the
Facility as required by and described in the operating plan filed
with and approved by the Department including, but not limited to
placement and compaction of solid wastes; excavation, transport
and placement of on-site borrow material as initial and
intermediate cover; leachate collection, recirculation, temporary
storage and, if necessary, conveyance to a point 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
operations and maintenance. Contractor shall not be responsible
for installation or operation of the scales, but shall maintain
the scales.
(b) The Contractor shall provide all superintendence;
labor, including operators, spotters, maintenance mechanics and
incidental labor (but excluding scale operators); and materials,
equipment, tools, supplies and utilities required for initial
construction, operation, ongoing construction, closure and post-
closure maintenance of the Facility. The Contractor shall at all
times have staffing and equipment adequate to operate 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 operate the Facility at
increased waste loading rates.
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(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 ground water 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
provisions of the approved operating and groundwater monitoring
plans. The Contractor shall promptly furnish to County a copy of
each laboratory monitoring report. The County is authorized to
obtain the results of any tests 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, operation,
closure and post-closure requirements on the Site. Contractor
may apply to any agency with jurisdiction for approval 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
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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.
2.5 Right of Access. The Contractor shall provide right of
access at any time during routine operations to County's
representatives and representatives of State and Federal
regulatory agencies with jurisdiction.
2.6 Safety and Security. The Contractor shall be in
exclusive control of the Site and shall take reasonable actions
to enhance the on-site personal safety of its personnel, County
representatives, operators of waste haulers, regulatory agency
inspectors, and the public. The Contractor may require that all
persons entering the Site comply with all safety and other
reasonable rules set by the Contractor, and at the request of the
Contractor, each third party guest entering the Site to sign a
written statement assuming the risk for any damage he or she
suffers during his or her visit to the Site, other than that
which is caused by the gross negligence or intentional conduct of
the Contractor. The Contractor shall provide means of
controlling access to the Site and of Site security to prevent
unauthorized access and clandestine dumping.
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2.7 Records and Reports. The Contractor shall maintain on-
site, readily retrievable for reference and in clean and usable
condition, at least one copy each of Department approved
construction drawings, specifications, reports, construction
permit and operating plan. All such records shall be made
available upon request to County or other agencies with
jurisdiction. The Contractor shall maintain an operations log
including at a minimum the following:
(a) Days (dates) of operations; hours actually
operated each date.
(b) Numbers of truckloads and gallonage of leachate
hauled each date.
(c) Description, keyed to designations on approved
construction drawings, of landfill cells and
borrow areas where operations have been conducted
during the month.
(d) Description of unusual or emergency operation
events (e.g., equipment breakdown, utilities
failure, extreme rainfall, etc.) and steps taken
to correct each and return to normal operation.
Said description shall include date and time of
occurrence (or discovery) of each such event and
date and time normal operation was restored.
(e) Dates of any regulatory agency inspections with
name of agency and inspector. A copy of any
concurrent or subsequently written inspection
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report, notice of violation, or citation shall be
provided to County upon receipt.
2.8 New Design and Construction. Contractor has agreed to
design and construct the first cell of the Facility, as described
in Section 2.1. Contractor shall be responsible for the ongoing
permitting, design and construction of the Facility and
associated facilities as is required through the term of this
Agreement.
2.9 Closure and Post-Closure. Contractor shall perform all
acts required for the lawful closure and post-closure maintenance
of the Facility.
2.10 Financial Responsibility.
(a) Contractor shall comply with all Federal, State
and local laws, rules, regulations and ordinances concerning the
financial responsibility for, and accruals with regard to,
expenses and costs associated with the closure and post-closure
of the Facility. Contractor is aware of the financial security
requirements of 40 CFR §256.70-.74 and shall comply with them
when they become effective, currently expected to be in or around
March, 1994. Contractor shall, at the request of the County,
provide reasonable and adequate assurances that Contractor has
and will continue to provide the financial resources required for
closure and post-closure of the Facility.
(b) Contractor is required to provide its indemnity,
environmental liability insurance in the amount of ;10,000,000,
General Liability insurance in the amount of X5,000,000, a
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payment and performance bond in the amount of $4,000,000,
provision for retainage for unpaid liabilities, and the Guaranty
of Waste Management, Inc. (the "Financial Assurances").
Contractor shall be required to provide increased insurance
coverage or additional items evidencing financial responsibility
for the performance of its obligations hereunder in the event the
Financial Assurances should be reasonably determined by the
Officer-in-Charge to be inadequate to cover the actual and
expected liabilities associated with Contractor's performance of
this Agreement. Such additional items may include letters of
credit, bonds and other like instruments.
2.11 Payment of Expenses. Except as otherwise provided
herein, the Contractor shall be solely responsible for and shall
pay all costs and expenses incurred in the performance of its
responsibilities.
2.12 Res onse to County. Contractor shall promptly respond
in writing to any request by County for information concerning
Contractor's operations pursuant to this Agreement. Contractor's
response shall be in such detail as is reasonably required by
County.
3.0 RESPONSIBILITIES OF COUNTY
3.1 Site Use.
(a) County represents that it has the right to use the
Site for the construction of the Facility and for the initial
operation of the Facility. County has applied for and will use
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its best efforts to obtain the permanent right to use the Site
for the Life of Facility and the post-closure maintenance period.
County shall not sell, transfer, lease, grant easements or
licenses with respect to, or otherwise encumber the Facility
without the prior written consent of the Contractor during the
term of this Agreement and for the post-closure maintenance
period. County shall at all times ensure that the Site is
cleared of excess excavated material to the extent necessary to
provide Contractor with construction and operating areas
sufficient to conduct its operations at the Site. County shall
allow Contractor to use the Site as provided herein for the full
term of this Agreement and shall grant Contractor access to the
Site for the post-closure maintenance period. County shall not
allow the Facility to be disturbed during the post-closure
maintenance period without the prior written consent of
Contractor.
(b) County shall have the right to use the Recycling
Area identified on Figure 1 for materials separation, processing,
recycling, composting and the like. County or its subcontractors
shall have access to the Recycling Area on operating days during
normal operating hours, notwithstanding any interruption of
Contractor's services at the Facility. Contractor shall have the
right to review and approve any proposed operations in the
Recycling Area to ensure that such proposed operations are
technically feasible and will not interfere with Contractor's
overall control of the Site, the environmental compliance of the
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Site or Contractor's operation and closure of the Facility.
Contractor's review shall be done promply and Contractor's
approval shall not be unreasonably withheld.
3.2 Initial Site Improvements. County will provide under a
separate contract for the construction of a road to the Facility
and the construction of a scale house, maintenance building and
administration building, which are identified in Figure 1 (the
"Initial Site Improvements"). Also included in the Initial Site
Improvements are electric power and telephone service, a water
storage facility for potable water and fire protection, and
sewage septic tanks and leach fields. Completion of the Initial
Site Improvements is scheduled for September 1, 1993. County
shall use its best efforts to achieve the completion date and
shall ensure that the construction of the Initial Site
Improvements does not interfere with Contractor's access to the
Site and construction of the initial cell. Contractor shall have
the right to use the Initial Site Improvements in its operation
of the Facility. Contractor shall have exclusive use of the
maintenance building and, subject to the occupancy of County's
scale operator and use of an office, exclusive use of the
administration building. Contractor shall be responsible for the
maintenance of the administration and maintenance buildings and
water storage facility after they are accepted by County. County
shall assign its warranty rights on the administration building,
maintenance building and water storage facility to Contractor.
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3.3 Waste Supply. 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 control the flow of solid waste to the Facility. The
Contractor shall not accept any solid waste at the Facility
unless directed or authorized to do so by County.
3.4 Scale Operations. County shall provide a certified
weighmaster to operate the scales and log incoming and outgoing
vehicles at the Site at all times the Facility is open to receive
solid waste. County shall install a computerized record-keeping
system that is compatible with Contractor's accounting and
financial control system. County shall allow Contractor access
to its records concerning operation of the scales.
3.5 Permitting and Approvals. County shall cooperate with,
and use its best efforts to assist, Contractor in obtaining all
permits and approvals required for the construction, operation
and closure of the Facility.
3.6 Prompt Review and Comment. Where the Contractor's
discharge of its responsibilities is dependent on prior County
review, comment and/or approval, County shall respond promptly in
writing to the Contractor's written submittals of information and
requests for review. County responses may be either:
(a) Unqualified approval or concurrence; or
(b) Enumeration of specific items or issues which are
unacceptable or non-approvable to County and the
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grounds for the determination of non-
acceptability.
3.7 Notification of Operating Deficiencies. County shall
notify the Contractor in writing when aspects of its operations
are observed by County to be in violation of terms of this
Agreement or of applicable provisions of governing law or
regulations.
3.8 Payments to Contractor. County shall make periodic
payments to the Contractor for landfill operation as provided in
this Agreement.
3.9 Off Site Leachate Disposal. Contractor shall use
reasonable efforts to handle leachate on site by recirculation
and/or evaporation. County shall be responsible for the costs
and expenses associated with leachate pre-treatment and disposal
at an off site waste water treatment facility, if required.
Contractor shall bear the cost of transportation of leachate up
to 30 miles from the Facility; any additional transportation
shall be paid for by County.
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 shall conform to the industry standards in monitoring
the receipt of Solid Waste to discourage the delivery of
Unacceptable Waste.
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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 Contractor will handle all Unacceptable Waste
delivered to the Facility in accordance with its operating
permits and applicable statutes and require, if possible, that
the responsible transporter remove waste determined by the
Contractor to be Unacceptable Waste. If the Unacceptable Waste
is not removed from the Contractor's possession by the
transporter within a reasonable time, not to exceed twenty-four
hours after discovery of the receipt of the waste material, the
Contractor will arrange lawful disposal of the waste. County
will refund Contractor its reasonable expenses and charges for
handling, loading, preparing, transporting, storing and disposing
of such Unacceptable Waste.
4.2 Revocation of Acceptance. The Contractor may revoke
its acceptance of any waste determined by the Contractor to be
Unacceptable Waste. Revocation shall occur within a reasonable
time after receipt, considering the facts and circumstances of
the discovery of the Unacceptable Waste.
4.3 Requirement for Special Waste Management. County
recognizes that Special Wastes in the solid waste stream must be
managed responsibly. County recognizes that the proper
management of Special Wastes can be most effectively and
efficiently achieved with the accurate determination and control
-24-
of any Special Waste by the waste generator or transporter.
Therefore, County will cooperate with the Contractor's efforts to
require waste generators and transporters to participate in and
implement a Special Waste program as described in this Agreement.
4.4 Contractor's Obligation Regarding Special Waste. The
Contractor is not required to accept or manage any Special Waste
unless it is specifically identified in a written Special Waste
Agreement. The Contractor shall provide a copy of all Special
Waste Agreements to County. The Contractor shall conform to the
highest industry standards in monitoring the receipt of Solid
Waste to prevent the delivery of unauthorized Special Waste.
4.5 Special Waste Agreement. The specific requirements of
the Special Waste Agreement shall be as specified from time to
time by the Contractor and may be altered by the Contractor as
necessary to enhance the proper management of Special Waste. The
initial Special Waste Agreement shall include:
(a) A representation of the character and regulatory
status of the waste executed by the generator or
transporter;
(b) A decision document executed by the Contractor and
any other party that will manage the waste. A
decision document shall at a minimum include the
identification of the generator and the source and
description of the waste;
(c) A proposed management plan for the waste,
including any special handling requirements;
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(d) The approval of the Contractor and any other party
that will manage the waste indicating acceptance
for handling of the waste; and
(e) The unit price associated with the acceptance and
management of Special Waste.
4.6 Representative Sample of Special Waste. The Contractor
may at its sole discretion require that a representative sample
of any Special Waste proposed for delivery to the Facility be
provided to a mutually agreeable independent laboratory for
analysis by the generator or Waste Hauler prior to the approval
of a Special Waste Agreement. Unless otherwise agreed by the
Contractor, the cost for acquisition, delivery and analysis of a
representative sample shall be borne by the generator or
transporter. If the generator or transporter refuses to provide
a representative sample, the Contractor shall have no obligation
to accept the Special Waste or to execute a Special Waste
Agreement.
5.0 TERM OF AGREEMENT
5.1 Term. This Agreement shall remain in full force and
effect for the Life of the Facility, subject to the termination
provisions set forth in Article B hereof. Following the initial
thirty years of operation hereunder the Agreement will be
extended for the remaining time required to complete filling of
the Facility and closure activities. Contractor's right of
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access for closure and post-closure maintenance shall continue
during the statutory post-closure maintenance period.
5.2 Termination of Operations. Operations shall be
terminated as of the date when full permitted Facility capacity
at the Site has been utilized.
5.3 Closure. Eighteen (18) months prior to the projected
date of attainment of full permitted capacity, the Contractor
shall notify County in writing of the projected date. If
requested by County, the Contractor shall provide all records,
data, drawings, maps, test reports and similar such information
as may reasonably be requested by County in support of required
closure procedures. The Contractor shall provide all legally
required closure and post-closure construction and maintenance of
the Facility at the Site.
6.0 PAYMENTS TO CONTRACTOR
6.1 Determination of Fee. The Contractor's fee shall be
determined on the basis of the tonnage of solid waste received
and accepted at the Site as recorded by scale operators' daily
records. The fees for the initial operating year shall be as set
forth in Exhibit B.
6.2 Annual Adiustment of Fee. As of January 1, 1995 and
each January 1 thereafter, the then current fees shall be
adjusted by the percentage change in the Consumer Price Index
("CPI") for the preceding twelve months. The CPI utilized shall
be for the twelve-month period immediately preceding each annual
-27-
adjustment date. Adjusted fees shall be the product of the then-
current fees and the modifier and shall be expressed correct to
the nearest whole cent ($0.01).
The Consumer Price Index used herein shall be the
second half Index for all urban Consumers (for all items,
Honolulu, Hawaii) - published by the Bureau of Labor Statistics,
U.S. Department of Labor, 1967 = 100. In the event that the U.S.
Department of Labor, Bureau of Labor Statistics ceases to publish
the said Index, the parties shall substitute another equally
authoritative measure of change in the purchasing power of the
U.S. dollar as may be then available so as to carry out the
intent of this provision.
6.3 Changes in Law. The Contractor shall be entitled to
either reimbursement or a rate adjustment for additional costs or
expenses, plus a reasonable margin thereon, associated with the
operation and maintenance of the Site and Facility which are
caused by a Change in Law. In documenting such reimbursement or
rate adjustment, the Contractor shall cite the specific
regulatory changes and the anticipated impacts on its operation,
procedures and costs and shall include appropriate documentation.
The reimbursement or rate adjustment shall take into account any
effect the Change of Law has on the life of the Facility. The
reimbursement or rate adjustment shall be effective at the time
the Contractor's costs are affected by the Change in Law. County
shall have the option of paying any amounts due to Contractor
pursuant to this subsection in a lump sum or as an addition to
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the per ton disposal fee. Any of the aforesaid circumstances
which abate and reduce the Contractor's cost'shall entitle County
to receive a rate decrease as agreed to by the parties.
6.4 Unusual Change or Costs. The Contractor may petition
County for rate adjustments on the basis of unusual changes in
its cost of doing business (such as increased fuel prices,
uncontrollable circumstances, unavailability of equipment, or
war, riot, or civil disturbance) which are not fully or
immediately reflected in the annual index adjustment. Said
request shall be accompanied by appropriate cost substantiation
and shall be reasonably considered by County. County shall have
the option of paying any amounts due Contractor pursuant to this
subsection in a lump sum or as an addition to the per ton
disposal fee. If calculated as an addition to the per ton
disposal fee, such addition shall decrease over a period, not to
exceed ten years, sufficient to allow the increased costs to be
reflected in the annual CPI increases. Any of the aforesaid
circumstances which abate and reduce the Contractor's cost shall
entitle County to receive a rate decrease as agreed to by the
parties.
6.5 Rate Review. Within sixty (60) days of the fifteenth
anniversary of the commencement of solid waste disposal
operations at the Facility, and each ten years thereafter, either
party shall have the right to review the then-current per ton
disposal fees paid by County to Contractor hereunder. In the
event a party so requests, the parties shall negotiate revised
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per ton disposal fees. The revised fees shall be sufficient to
cover all of Contractor's costs, including design, permitting,
construction, operation, remediation (if any), closure and post-
closure maintenance, plus a reasonable profit margin thereon.
The profit margin shall be one which recognizes the risks of
solid waste disposal operations and in the range of margins
reasonably expected by private companies entering into the
construction, operation and closure of solid waste disposal
facilities. In the event the parties are unable to agree on the
revised per ton disposal fees, the matter shall be referred to
arbitration pursuant to Section 9.11. This Agreement shall
continue in full force and effect following any adjustment of the
per ton disposal fees pursuant to this Section 6.5.
6.6 Apalication for Payment. At monthly intervals, the
Contractor shall make written application for payment for the
prior month's operations. Applications shall be made at such
times, in such numbers of copies, and in such form as reasonably
directed by County. As a minimum, the application for payment
form shall include a daily summary for the month for which
application is made, differentiating between non-operating and
operating days. Daily tonnage figures shall be based on, and
coincide with, scale operators' tonnage records.
In the event that County does not deliver or cause to
be delivered a total of at least one hundred tons of solid waste
per operating day to the Facility during any month, the parties
acknowledge that Contractor will be entitled to higher disposal
-30-
fees. In the event County delivers or causes to be delivered
more than four hundred tons of solid. waste per operating day to
the Facility during any month, the parties acknowledge that
Contractor will accept a lower per ton disposal fee for the
tonnage in excess of four hundred per day. The fees will be
negotiated in good faith by the parties.
6.7 Processing Applications for Payment. Within ten (10)
days of receipt of each month's application for payment, County
shall check the application and shall either (1) return incorrect
applications to the Contractor, with notations of deficiencies,
for correction and resubmittal; (2) process for payment in full;
or (3) process for partial payment in the event provisions of
Article 6.9 apply. The Contractor shall be provided with a copy
of all transmittal memoranda.
6.8 Payments to Contractor. County shall make payment to
the Contractor of the amount of each approved application for
payment within twenty (20) days of receipt of Contractor's
application.
6.9 Retainage. If, at the time any application for payment
is received and processed, County has knowledge of either (1)
unresolved citations, notices of violation or emergency orders
issued to the Contractor by any regulatory agency with
jurisdiction which are no longer being contested or appealed in
good faith by the Contractor, or (2) any claims for unpaid bills
for labor, materials, equipment or supplies which are no longer
being contested or appealed in good faith by the Contractor,
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County may retain from payments otherwise due to the Contractor
such amounts as will be reasonably ,adequate to protect County's
interests, up to and including total retainage. All amounts so
retained will be held by County until such time as the cause for
the retainage has been corrected by the Contractor to the
reasonable satisfaction of County.
6.10 Release of Retainage. Upon resolution of any grounds
for retainage, County shall make payment to the Contractor in the
amount of the recommended release with interest at 108 per annum,
within twenty (20) days.
7.0 HOLD HARMLESS AND INSURANCE
7.1 Hold Harmless and Indemnification. The Contractor
shall hold harmless, indemnify and defend County, its officers,
employees, representatives and agents, from and against any
claim, action, loss, damage, injury, liability, cost and expense
of whatsoever kind or nature (including, but not by way of
limitation, attorney's fees and court costs) arising out of
injury (whether mental or corporeal) to persons, including death,
or damage to property, including any and all costs resulting from
environmental contamination, arising out of or incidental to any
act or omission of the Contractor in the performance of its
obligations hereunder. In the event of contributory negligence
on the part of County and the Contractor, any loss shall be
apportioned in accordance with the percentage fault of each
party.
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The Contractor shall have the right to control the
defense of any action in which damages are sought which may be
the ultimate responsibility of the Contractor.
7.2 Insurance. Without limiting its liability under this
Agreement, the Contractor shall procure and maintain its sole
expense during the life of the Agreement, insurance of the types
and in the minimum amounts stated below:
Schedule
Limits
Workers' Compensation
Statutory Coverage & Statutory/;100,000
Employer's Liability
(including appropriate federal acts)
Commercial General Liability
Premises-Operations
Single
Products-Completed Operations
Contractual Liability
Independent Contractors
Environmental Liability
Single
Automobile Liability
All Autos - Owned, Hired or Used
Single
5,000,000 Combined
Limit
;10,000,000 Combined
Limit
$ 300,000 Combined
Limit
The Contractor's commercial general liability policy
shall include contractual liability on a blanket or specific
basis to cover the indemnification contained in Article 7.1
hereof. It shall also name County and the State of Hawaii as
additional insureds for liability arising out of operations
performed by the Contractor for County pursuant to this
Agreement.
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All insurance shall be written by a company or
companies with a Best rating of "A" or better, licensed in the
State of Hawaii to provide the type of insurance which the
company is offering. Prior to commencing any work under this
Agreement, certificates evidencing the maintenance of said
insurance shall be furnished to County and the State of Hawaii.
All insurance shall provide that no material alteration
or cancellation, including expiration and non-renewal, shall be
effective until sixty (60) days after receipt of written notice
by County and the State of Hawaii.
7.3 Payment and Performance Bond. The Contractor shall
obtain and maintain at its expense for the period of time
required to complete the initial cell construction described in
Exhibit A a Payment and Performance Bond. Copies of the Bond
shall be delivered to the County within ten (10) days following
Contractor's entry onto the Site to begin work. The amount of
the bond shall be equal to FOUR MILLION DOLLARS (54,000,000).
The Payment and Performance Bond shall be maintained in
full force and effect until 90 days after construction of the
initial cell is completed.
8.0
8.1 For Cause. Except as otherwise provided herein, if
either party breaches this Agreement or defaults in the
performance of any of the covenants or conditions contained
herein for thirty (30) days after the other party has given the
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party breaching or defaulting written notice of such breach or
default, the other party may: (i) terminate this Agreement as of
any date; (ii) cure the breach or default at the expense of the
breaching or defaulting party; and/or (iii) have recourse to any
other right or remedy to which it may be entitled by law or
equity.
In the event that in the exercise of due diligence
during the aforesaid thirty (30) day period a cure cannot
reasonably be effected, such thirty (30) day period shall be
extended to include such additional time as is reasonably
necessary to effect cure provided the defaulting party exercises
continuous diligent efforts to cure such default during such
extended cure period.
In the event either party waives default by the other
party,. such waiver shall not be construed or determined to be a
continuing waiver of the same or any subsequent breach or
default.
8.2 in County's Interest.
(a) County reserves the right to terminate this
Agreement if it reasonably determines, upon recommendation by the
Officer-in-Charge, that termination would be in the best
interests of the County. Notice of such termination shall be
given in writing and shall specify the date on which County will
assume operations at the Site. In order to exercise its right of
termination pursuant to this Section, County shall give notice to
Contractor before the earlier of (i) May 1, 1998, or (ii) the
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date on which cell number 3 on Figure 2 is certified as ready to
begin accepting solid waste for disposal.
(b) In the event of a termination pursuant to this
Section 8.2, (i) Contractor shall be paid an amount calculated
pursuant to Section 8.3 (not to exceed a total amount equal to
;5,975,000 plus unamortized equipment costs) plus a reasonable
profit thereon; (11) County shall fully and completely release,
hold harmless and indemnify Contractor against any claim or cause
of action whatsoever relating to Contractor's performance of this
Agreement or its design, construction or operation of the
Facility; and (iii) Contractor shall have no liability for
closure or post-closure maintenance of the Facility.
8.3 Early Termination of Agreement.
(a) In the event this Agreement is terminated or its
purpose frustrated before the end of the term hereof due to
County or Contractor's failure to obtain a required governmental
approval or for any other reason, including uncontrollable
circumstances, Contractor shall be paid a portion of its costs of
excavation and development of the Facility. Such costs shall be
equal to:
Contractor's Dwelopmeat 1 -(Total Facilitylcapacity in cubic yards)
Costs S
Volume of Facility used in cubic Yards will be
determiaad by multiplying the solid waste tonnage
received by 2.6.
Contractor's development coats under this Section shall mean
site preparation, excavation and grading costs; legal, permitting
-36-
and zoning fees; coats associated with liner and leachate system
procurement and installation; unamortized equipment costs; other
unamortized costs related to the performance of this Agreement;
and Contractor's carrying costs for all such items.
Contractor's development costs may be substantiated by
prices obtained through competitive bid, negotiated agreement or
reasonably satisfactory documentation of work done by
Contractor's employees. For such negotiated or Contractor-
aupplied work, Contractor shall be allowed ten percent (108)
overhead and profit on all labor, equipment, materials, etc. For
subcontracted items the total overhead and profit of the
subcontractor and Contractor shall not cwnulatively exceed
fifteen percent (158). Contractor shall provide an accounting of
all such costs to a level of detail acceptable to County,
including but not limited to a breakdown by craft or positions of
all direct and indirect labor cost, all fringes, all material,
and equipment coat substantiated by low price bid or competitive
negotiations, and unit price cost as applicable. The same level
of detail required of Contractor shall be provided by
subcontractors.
(b) Contractor shall transfer all equipment and
personal property owned by it and used in the operation of the
Facility to County upon payment of the Contractor's development
coats.
8.4 interim Operations. In the event that this Agreement
is terminated pursuant to Article 8.1, 8.2 or 8.3, the Contractor
-37-
shall continue operations for an interim period of up to one
hundred twenty (120) calendar days if requested to do so by
County in order to allow County to obtain the services of a
successor contractor or to make arrangements to undertake
operation of the facility with its own forces. The Contractor
shall be paid for its services during said interim period at the
rates and factors set forth in the last payment schedule in
effect prior to the then expiration date of this Agreement.
8.5 Termination Due to Uncontrollable Circumstances. Time
is of the essence during the initial construction of the
Facility. Should the Facility be unable to receive waste by
October 9, 1993, County will sustain serious economic loss.
Accordingly, Officer-in-Charge reserves the right to terminate
this Agreement, at any time prior to October 9, 1993, when, in
her professional judgement, whether because of uncontrollable
circumstances or any other reason, ahe determines that the
Facility will not be able to accept waste by the aforementioned
date. In this event, Contractor will be paid an amount
calculated as if the Agreement had been terminated pursuant to
Section 8.2.
8.6 Liquidated Damages. In the event the Facility is
unable to receive solid waste for reasons other than
uncontrollable circumstances, Contractor shall pay County as
liquidated damages, and not as a penalty or fine, two times the
previous month's per ton disposal fee for each ton of solid waste
which County tenders to Contractor at the Facility and which
-38-
Contractor is unable to receive. Payment shall be made by
Contractor within thirty (30) days of invoice by the County and
past due payments shall be made with interest calculated at 108
per annum.
9.0 GENERAL CONDITIONS
9.1 Notices. Notices of conditions or situations effecting
the work to be performed under this Agreement shall be given in
writing between designated operating personnel of the Contractor
and County. All other notices shall be given in writing, to be
delivered by certified mail, to the parties at their respective
addresses as set forth below:
If to CONTRACTOR, at:
WASTE MANAGEMENT OF HAWAII, INC.
92-460 Farrington Hwy.
Ewa Beach, Hawaii 96707
With a Copy to:
Group General Counsel
Waste Management of North America, Inc.
18500 Von Karmen Street, Suite 900
Irvine, California 92715
If to COUNTY, at:
Department Public Works
County of Hawaii
25 Aupuni Street
Hilo, Hawaii 96720
9.2 Uncontrollable Circumstances. Except for County's
obligation to pay for services rendered, neither party shall be
liable for its failure to perform hereunder due to Uncontrollable
Circumstances during the period that such circwnstances prevent
-39-
or inhibit such party's performance, provided, however, that in
the event of a labor strike, stoppage or slowdown, Contractor
shall use its best efforts to continue operations at the
Facility.
9.3 Assignment. This Agreement is assignable only upon the
written consent of the other party and subject to such consent,
shall be binding upon, and inure to the benefit of, the
assignor's successors and assigns. County's consent may be
conditioned on, among other items, receipt of financial
assurances and guarantees from the assignee which are
substantially similar to those received from Contractor and Waste
Management, Inc. Notwithstanding the foregoing, however,
Contractor may assign this Agreement to an entity controlled by,
controlling, or under common control with Waste Management of
North America, Inc., provided that the guarantee of Waste
Management, Inc. shall remain in effect.
9.4 Amendment. This Agreement may be amended only by
written instrument specifically referring to this Agreement and
executed with the same formalities as this Agreement, including
Council approval.
9.5 Payment. Final payment under the Agreement shall not
be made until it has been recommended to and accepted by the
Officer-in-charge.
9.6 Tax Clearance. In accordance with Sections 103-53 and
237-45, Hawaii Revised Statutes, the final payment on this
Agreement shall not be settled until the Contractor obtains
-40-
receipt of a tax clearance from the Department of Taxation.to the
effect that all delinquent taxes levied or accrued under State
statutes agains the Contractor have been paid.
9.7 Availability of Funds. It is the understanding of the
parties that the obligations of this Agreement are contingent
upon the availability of funds. Availability of funds in excess
of the amount certified as available in this Agreement shall be
contingent upon future appropriations. The obligations and
covenants contained herein are enforceable only to the extent
that further funds are made available by future appropriations.
Any failure of such appropriations shall result in the
termination of this Agreement at the end of the last County
fiscal year for which funds are available.
9.8 Non-Gratuity Affidavit. A release form will be
required to be executed by the Contractor before final payment
will be authorized. A sample of the release form is made a part
of this Agreement.
9.9 Equal Employment Opportunity. During the performance
of this agreement:
(a) Contractor will not discriminate against any
employee or applicant for employment because of race, color,
religion, sex, age, or national origin. Contractor will take
affirmative action to insure that applicants are employed, and
that employees are treated during employment, without regard to
their race, color, religion, sex, age, or national origin. Such
action shall include, but not be limited to, the following:
-41-
upgrading, demotion, or transfer, recruitment or recruitment
advertising; layoff or termination; rates of pay or other forms
of compensation; and selection for training, including
apprenticeship. Contractor agrees to post in conspicuous places,
available to employees and applicants for employment, notices to
be provided by County setting forth the provisions of this.
nondiscrimination clause.
(b) Contractor will, in all solicitations or
advertisements for employees. placed by or on behalf of
Contractor, state that all qualified applicants will receive
consideration for employmeent without regard to race, color,
religion, sex, age, or national origin.
9.10 Prevailing Wages. Contractor shall pay all personnel
employed by it at the Facility wages or salaries not less than
the wages or salaries paid to public employees for similar work
in the County of Hawaii. The preceding sentence shall not apply
to managerial personnel.
9.11 Governing Law, Arbitration and Venue. This Agreement
shall be interpreted and enforced according to Hawaii law. Any
action to interpret and/or enforce this Agreement shall be
brought and maintained in Hilo, Hawaii. All questions or
controversies which may arise between the Contractor and County
under or in reference to this Agreement, shall be subject to the
decision of some competent person to be agreed upon by the County
and Contractor who shall act as referee; and his or her decisions
shall be final and conclusive upon both parties. Should County
-42-
and Contractor be unable to agree upon a referee, a board of
three (3) arbitrators shall be chosen within ten (10) days: one
by County, one by Contractor, and the third by the two so chosen;
and the decision of any two of said arbitrators shall be final
and binding upon the parties. If either party to the Agreement
neglects or fails for a period of ten (10) days after notice from
the other party to designate an arbitrator hereunder, the
arbitrator designated by the other party shall have full power to
decide the dispute in the same manner as though aboard of three
(3) arbitrators had been selected. During the pendency of the
referral or arbitration, the parties shall each bear one-half of
the costs of the arbitrator(s). The referee or arbitrators shall
finally decide which party shall pay the cost of referral or
arbitration.
9.12 Order of Precedence. In the event of any conflict
between the provisions of this Agreement and those of the
Exhibits attached hereto, the provisions of this Agreement shall
govern. This Agreement and the Exhibits attached hereto
constitute the entire agreement of the parties with respect to
the subject matter hereof. The award of this Agreement is based
upon a request for proposals dated January, 1993 (the "RFP"), a
request for supplemental quotation dated March 11, 1993 (the
~~RFgQ"), and Contractor's response to those requests. AS an aid
to interpretation of the intent of the parties in entering into
this Agreement, the referenced documents shall be referred to in
descending order of precedence as follows:
-43-
(i) Contractor's response to the RFSQ dated
March 15, 1993;
(ii) The RFSQ;
(iii) Contractor's proposal in response to the
RFP dated March 4, 1993;
(iv) The RFP.
9.13 Construction. Both parties acknowledge that they have
both had meaningful input into the terms and conditions contained
in this Agreement.
9.14 Savings Clause. In the event that one or more of the
provisions contained in this Agreement shall be held to be
invalid, illegal or unenforceable in any respect, such
invalidity, illegality, or unenforceability shall not affect any
other provision of this Agreement and this Agreement shall be
construed as if such invalid, illegal or unenforceable provision
had never been contained herein.
9.15 Authority. County represents and warrants that it has
the power and authority to enter into this Agreement, that all
necessary ordinances, resolutions and other approvals have been
duly enacted or obtained, and that upon execution hereof by
County this Agreement shall become a valid and binding obligation
of County.
9.16 Guaranty. Waste Management, Inc., a Delaware
corporation has guaranteed the financial performance of
Contractor hereunder pursuant to a separate guaranty, which is
attached hereto as Exhibit C.
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IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be duly executed as of the date first above written.
ATTEST:
~-~ ~_
By:
Its Secretary
RECOMMEND APPROV
By:
Department He
APPROVED AS TO FORM AND LEGALITY:
By:
Corporation Counsel
WASTE MANAGEMENT OF
HAWAII, INC.
By:
I a Division President
COUNTY OP HAWAII
By:
MAYOR
~9Eralf.~gt
-45-
STATE OF HAWAII
COUNTY OF HAWAII
SS
On this 21st day of APRIL, 1993, before me personally
appeared RAY A. ROSSETTI and MICHAEL O'BRIEN, to me personally
known, who being by me duly sworn, did say that they are the
DIVISION PRESIDENT and SECRETARY, respectively, of WASTE
MANAGEMENT OF HAWAII, INC., and that said instrument was signed
on behalf of said corporation and said officers acknowledged said
instrument to be the free act and deed of said corporation.
teary Public, State of HAWAI
My commission expires: ~ ~\
STATE OF HAWAII )
55.
COUNTY OF HAWAII )
On this day of 19_, 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 P1ayor 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.
atary u ic, tate o await
STATE OF HAWAII
COUNTY OF HAWAII
On this
day of
sworn, did say that he is the
My commission expires:
SS.
19_, before me appeared
to me personally known, who, being by me duly
of
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 the
said acknowledged said instrument to be the
free act and deed of said corporation.
otary u ic, tate o await
My commission expires:
Contractor: WASTE MANAGEMENT OF HAWAII, INC.
Scrvices~Procluct: Develo p an Integ rated Solid Waste Processing Recvcling and
Disposal Facility
Duration: Contractor shall complete Tasks 1, 2 and 3 of Phase 1 as described on
Exhibit A to a degree of completion which would allow lawful receipt of
solid waste at the Facility no later than October 9, 1993.
CEHTIFICATIDN
I certify Chat these services may be performed concurrontly xith a private '
business or profession or other privato employmont, and it is impracticable tc
ascertain or anticipate the portion of time to be devoted to the service of
flit County of Hawaii. Pursuant to Section 7G-77(12), Hawaii Revised Statutes,
Clue services arc exempt from civil service.
Da tc
Director of Personnel
FIGURES/EXHIBITS
Figure 1 Site Map
Figure 2 Cell Sequencing Diagram
Exhibit A Phase 1
Exhibit B Rates
Exhibit C WMI Guarantee
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EXH = 8 = T A
e,~_ -- -s ^-oil 1
Tha objective of this phase of the work is to dacign end oonotruct the firot
colt of the landfill end to dovoiop the doaumentc nedfryi W;i b~oob~ ^ed from ~a der this
pheco of the work, en operating Permit for the la
Department.
Detailed descriptions of each task that will be performed by the Contreotor
and their related activities ere ea follows:
_ .. __rsm a ties
~~ ~
Addioonel design of the landfill portion of the Project. including the composite
liner; leachate collection. troetmertt, °nd disposal a~stemVidsd under thisrtask en accordance
system: end Iendf0l gee management system. wrll ba Pro
with federal, state and local rtipulatiom. Preliminary designs will be prepared and submitted
to the County and the Depar>?ttent for review and comment. The final design will man be
prepared which incorporates the CountY'g and oepertmertt's comments.
Under this tasK. tna Contractor will prepare en Ue $ arto i have bean previously
landfill. The Walmanalo Gulch sanitary landfill operating
approved by the paPartnlent for that faeiiity, wilt be ubl'zad as the baseline documerrts.
These documents will be tailored to the site-specl~o conditions at the Facility.
2.a Prepsradon of Landfill OPa~g l~tn ~ ~ °parstmg plan for the landfill
will be developed. Included in the operating plan will be a description of
the:
^ Landfill design criteria:
^ IJner system design:
• poreonnol nquiromonts: '
^ Equipment requirements:
• peily site opsrntiona;
^ Methods for handling of epeoiel wears and bulk iterna;
Litter oontrol:
Duct control;
Fire prevention and control;
r Odor eontrol:
Vector corrtroi;
. Onsite sefery;
Monitoring programs: and
^ ftecordkeaping system.
A plan showing the sequence of ftlling at the lendflll will be developed.
Inauded In a ~noff~con~ol a wystems e ~ha Planuwiltl n orporate bey face
water run-on/ in subsequent tasks.
rsteranee the manuals developed
Z,b preparation of Emergency rytanepemenc ~~ • An emergency
manueewi~be deaeriptio s of procedures to followee the everrt o the
^ Landfill firos:
Spills/releases/emissions:
^ Hurricanes;
Earthquakes;
goods;
Bomb threats; or
• pemortsUetiunslatrikes.
pespnrrsihllltlas of personnel f Tory q~v tios hat oould fanoilita'tebe
identified. In addition. peps
response will bo dascribad•
2.c ProPa-dada^~f at~thawF a Ii~Yr"'"l~ I7° d° atoped. The plenr will decor be a
groundwater monitoring Program that Is in oanformenoe with RCAA
Subtitlo D roguna~^vioinitY of eeohllandfildle Thaenumbe- of walla
hydrogaolagy
roy~irod, their location end estimated depth will be proposed. A
eempling procedure will bs described. Also included will bs en analysis
plan describing eneiydael psremetare• leboreto ens rocordkeePing
procedures, detection limits, end date roporting
requirements.
For the purposes of the coat estimate for this s ~;he conat action of
assumed that four wells wlll be installed as part
the Fecitlty and that detection monitonng will occur on a quarterly
basis.
2.d Propsradon of Qlaa Mlgratfon Mordtoring Plana ' A plan for monitoring
Isrrdflll gee migration at the Iandflll Oflfpm mat lepn co orrrtance Iwlth
describe a Iandflll gsa monitoring pr B
RCflA subtlds D ragulatfons. The planb IludUzed at thasandt/n The e
Iandflll gee Cpntrol systems mat mlQnt
number of gdas~ cring ~ dq~cles a d data reporting requirsmentsl
be pr°P~
will bs described.
g s pcroobe Inataelatton end monitoring t~ four probesthe costs for Iandflll
2 e PrgP~atlon oT undfal tfradl°g Pemtit Appllcatlon - A grading permit
epppcatlon will be prepared for submittal to the County of Hawaii.
Oepartmertt of Public W°r~• Required with the grading permit
application is a grading end erosion control plan which will also be
prepared under this task.
2.f Preparadon of Leeehnte Mwill be de a oPed• ~t mates of the lee hate
leachete from the Facility enerated will be determined.
quantities that could poterttisilY be g
Contractor will evaluate attsrnetive methods for treatment, storage end
disp~l•
Tha Oo3L~ ~eachate pump ~Q trsetme^rpsto °~ °adlsppaEl facilltiesb for
design cvnl of the leschato management plan, the
Upon papertnlent appr ces for the
project team, if requested, will prepare a scope of sern
design and construction of the leachers faeillties that are reeuired.
2,a propsratlon o} Landf0l Brqusndrq ~e^' A lenditll sequencing plan will
be propered which will describe the deveitrpmsnt of the futuro Isrrdfill
phases. end the required access roads to eactr of the cnil~ftohre fpna~ton
and maintenance. The plan gill alaoroi'n~ e~ ~~e~d a plan for the
grades to be obtained during Pfd
placement of en intermediate cover
Lh Preparegon of f.arrdf8l Closure clan - A plan for closure of the landfill In
developed. Indudad Ingthe plannwl/ ~CRA SuDt1Ue 0 will be
A dsacriptlon of the steps necessary to close the Iandflll at any
point during Its active Ilfe;
^ A deacrlDUOn of me N^81 cover and the methods and procedures
used to install she cover, '
^ A schedule for complsting the Iandflll closure activities;
^ A dsseBptlon of the monitoring and meirrtenanca activities
roquirsd during postclosure; and
^ A description of the planned uses of the property during the
postclosuro Paraod.
ZJ Apppcadon tar itandfl9 OP~O Psrrrdts _ Based on the documents
prepared under the previous tasks, the apoli%~on for en o eat taegrh's
permit for the Facility wrll be develoP~• ~~ on me Prol
discussions with tnesring re ~~ ~ ~ ~• wip hsva been at both
the dens and roved by the Depertmerrt.
preliminarily aPD
Tha project team will meet wremsr~ ~~Po~~ a~ o~~ad 0 Permit.
determine Department regal the previous tasks will bs prepared in
Operating plena developed under
accordance wrttr OnpartmeM raquiremertts~lf~dh onall~oparof
documents are requested by the Departm
services for the preparation of those documents will be developed by
the project team at the courttY•s request.
Taak~d*Ik C°nstnrGtlOII
Under this task. the lendflll portion of the project will be consinrcted in
accordance to the final dasion plans that have been approved by the COUn~ s^d the
Department.
EXH = B = T 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 tonnage received for
the month shall be divided by the number of operating days in the
month to determine the Average Tons Per Day. County shall pay a
per ton price at the end of each calendar 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*
100 - 200 ; 63.20
200 - 300 ; 48.90
300 - 400 ; 36.90
*inclusive of Hawaii General Excise Tax
The above disposal fees shall be adjusted as provided in
Section 6 of the Agreement.
Special Waste. County and Contractor acknowledge that there are
extra costs involved in the acceptance and handling of Special
Wastes which may be lawfully disposed of at the Facility.
Contractor shall be paid the disposal fees for the Special Wastes
listed below as follows:
Asbestos; Dead animals; off specification
bulk food products, in excess of one ton
Total tonnage plus 1, times the
applicable disposal fee*
*inclu~ive of Hawaii General Excise Tax
County and Contractor shall jointly set disposal fees for
any significant quantities of Special Waste not identified above
when such waste streams are identified. The fees shall be
determined with reference to Contractor's costs of receiving and
disposing of, and the risks attendant to long term management of,
the subject Special Waste.
The Special Waste disposal fees shall be adjusted as
provided in Section 6 of the Agreement.
Pick up Trucks. Pick up trucks will be weighed in and out and
Contractor will be compensated as provided above for the receipt
and disposal of solid waste so delivered.
EXHIBIT C
GUARANTEE AGREIII4IIVT
THIS AGREEMENT is made as of April 15, 1993, by the undersigned ("Guarantor").
RECFTAIS:
A. Guarantor's second tier subsidiary, Waste Management of Hawaii, Inc.
("Proposer") is responding to a request for supplemental quotation date March 11, 1993, by the
County of Hawaii (the "RFP");
B. As a condition to the award of a contract pursuant to the RFP, Guarantor has been
required to guarantee the Obligations (as hereinafter defined) on the terms stated herein;
C. It is in the best interests of Guarantor to guarantee the Obligations;
D. The term "Obligations" as used herein means any and all debts, fmancial
obligations and liabilities of Proposer to the County of Hawaii, arising out of the Landfill
Construction, Operation and Closure Agreement dated as of the 21st of April, 1993 (the
"Landfill Agreement"), awarded pursuant to the RFP. _
COVENANTS:
IN CONSIDERATION of these premises, the Guarantor hereby agrees as follows:
1. The Guarantor hereby (a) unconditionally guarantees the full and prompt payment
of the Obligations when due; and (b) agrees to pay all costs, expenses and reasonable attorneys'
fees incurred by the County of Hawaii in enforcing this Agreement.
2. Prior to presentation of a claim hereunder, the County of Hawaii shall be
obligated to: (a) take reasonable steps to secure performance of the contract by Proposer; and
(b) take reasonable steps to obtain the payment of the Obligations.
3. The County of Hawaii shall have the exclusive right, which may be exercised
from time to time without d;m;n;ching or impairing the liability of the Guarantor in any respect,
and without notice of any kind to the Guarantor, to: (a) determine how, when and what
application of payments, credits and collection, if any, shall be made on the Obligations and
accept partial payments; and (b) with or without consideration, grant, permit or enter into any
waiver, amendment, extension, modification, indulgence, compromise, settlement, subordination,
discharge or release of (i) any of the Obligations and any agreement relating to any of the
Obligations, (ii) any obligations of any other person or entity liable for payment or performance
of any of the Obligations, and any agreement relating to collateral or security for any of the
foregoing.
~~~~~
4. The Guarantor hereby unconditionally waives presentment, notice of dishonor,
protest, demand for payment and all notices of any kind, including, without limitation, (i) notice
of acceptance hereof; (ii) notice of the creation of any of the Obligations; (iii) notice of non-
payment, non-performance or other default on any of the Obligations; and (iv) notice of any
action taken to collect upon or enforce any of the Obligations.
5. This Agreement shall be in effect for the full term of the Landfill Agreement and
shall inure to the County of Hawaii and shall be binding upon the Guarantor and its successors
and assigns.
6. This Agreement shall be governed by the laws of the State of Hawaii applicable
to contracts made and to be performed therein between residents thereof.
7. This Agreement constitutes the eatire agreement between the County of Hawaii
and Guarantor with respect to the subject matter hereof, superseding all previous
communications and negotiations, and no represeatation, understanding, promise or condition
concerning the subject matter thereof shall be binding upon the County of Hawaii unless
expressed herein.
WASTE ]41ANAGEMEN'f, INC.
By: i2~.-sup m ~.~-~-Q--
Title: Staf Vice President-Treasury
~, -' ~J-.a.~, t .~
~~ 1
,~^ ~
ay: -
Title: Vice President and Secretary
a+~~•~ 2
Resolution
of the
Board of Directors
of
waste Management, Inc.
I, Herbert A Getz, do hereby certify that I am the duly appointed and qualified Secretary of
Waste Management, Inc., a corporation organized and eristing under the laws of the State of
Delaware, anti that the following is a true and correct cePY of certain resolutions duly adopted by
the Board of Directors of said corporation on the 29th day of May, 1992, anti that such resolutions
aze now is full force and effect and have not been amended or superseded and aze 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 he following officers of this corporation:
TITLE
President
Senior Vice President, Chief Financial
Officer and Treasurer
Vice President and Secretary
Vice President
Vice President and Controller
Vice President
Vice President
Staff Vice President -Finance
Staff Vice President -Treasury
INCUMBENT
Phillip B. Roonry
James E. Soenig
Herbert A Gctz
Jerome D. Girsch
Thomas C. Haze
Thomas R. Frank
William P. Halligan
Ronald M. Jericho
Susan C. Nustra
be, and hereby are, authorized, upon such terms and conditions as they shall deem proper, to
obtain loans and loan commitments, to authorize foreign exchange, interest rate and currenry
exchange transactions, to purchase letters of credit and to eztend guarantees for, oa behalf and in
the name of this corporation or any of its subsidiaries, to incur liabilities in connection therewith
cad in connection with the purchase, sale or negotiation of any bills of exchange, letters of credit,
acceptances, drafts, bills of lading, and similar instruments, and to receive and receipt for and to
sign receipts and trust receipts therefor, and to sign, execute, and deliver a~ orders, notes,
applications, guarantees, instruments or other agreements is connection with a~+ 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.
WHEREOF, I have subscribed my name as Se this ~~~ day of
19 L3, _~ Z
_ Herbert A tz
Vice President Secretary
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 deliver 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
G ~.-` ~%
MEMORANDUM O F UNDERSTAND = NG
THE LANDFILL CONSTRUCTION, OPERATION AND CLOSURE AGREEMENT
made and entered into as of the 21st day of April, 1993, by and
between the COUNTY OF HAWAII (hereinafter referred to as
"County"), and WASTE MANAGEMENT OF HAWAII, INC., (hereinafter
referred to as "Contractor"), is hereby amended in consideration
of the mutual promises contained therein by adding a new
paragraph to be numbered 2.13, and to read as follows:
2.13 Haulinc by Contractor
Contractor shall not engage either directly or
indirectly in commercial solid waste hauling in the County of
Hawaii during the term of this Agreement without obtaining the
prior written consent of the Officer-in-Charge and approval of
o~
Council. This restriction shall terminate upon any termination
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be duly executed as of the date first above written.
ATTEST:
BY : ~/~~
Ita secretary
WASTE MANAGEMENT OF
HAWAII, INC.
IT DIVISION PRESIDENT
RECOMMEND APPROVAL:
BY : /~~~
DEPARTMENT
APPROVED AS TO FORM AND EGALITY:
BY:
ORPORATION COUNSEL
COUNTY OF HAWAII
BY:
MAYOR
-2-
STATE OF HAWAII
COUNTY OF HAWAII
SS
On this 21st day of APRIL, 1993, before me personally
appeared RAY A. ROSSETTI and MICHAEL O'BRIEN, to me personally
known, who being by me duly sworn, did say that they are the
DIVISION PRESIDENT and SECRETARY, respectively, of WASTE
MANAGEMENT OF HAWAII, INC., and that said instrument was signed
on behalf of said corporation and said officers acknowledged said
instrument to be the free act and deed of said corporation.
S. Motary Public, State of Haw 1
My commission expires:
-3-