HomeMy Public PortalAboutr 15-223�nvhlftvn of 11je Parnitg4 of Cauthret, �T- T.
No. L5'M
Date of Adoption N'by r 5 2D15
AUTHORIZING THE MAYOR AND /OR APPROPRIATE BOROUGH OFFICIALS
TO EXECUTE AGREEMENT BETWEEN MIDDLESEX COUNTY UTILITIES
AUTHORITY AND THE BOROUGH OF CARTERET FOR SOLID WASTE DISPOSAL
BE IT RESOLVED, by the Mayor and Council of the Borough of Carteret that the Mayor
and/or the appropriate Borough Officials are hereby authorized to execute an agreement with
Middlesex County Utilities Authority for Solid Waste Disposal.
Adopted this 5" day of November, 2015
and certified as a tale copy of the
original on November 6, 2015.
KATHLEEN M. BARNEY,
Municipal Clerk
RECORD OF COUNCIL VOTE
COUNCILMAN
YES
NO
NV
A. B.
COUNCILMAN
YES
NO NV
A. B.
BELLING
X
KRUpi
X
D
X
NAPLES
X
DI MSCIO
X
IITARZ
X
X - Indicate Vote AB - Absent NV Not Voting XOR - Indicates Vote to Overrule Veto
Adopted at a meeting of the Municipal Council ��Y 5, 2015
/ �r
SOLID WASTE DISPOSAL AGREEMENT
(COUNTY GOVERNMENT AND MUNICIPALITIES)
THIS AGREEMENT, made this 12th day of November , 2015 between the
MIDDLESEX COUNTY UTILITIES AUTHORITY (the "MCUA" or "Party "), a body corporate and
politic of the State of New Jersey, having its principal offices at Main Street Extension, Sayreville, New
Jersey, 08872, and Bof a et (the "Public Entity" or "Party"), a Municipality of the State of
New Jersey, having principal offices at 61 Cooke Avenue, Carteret, New Jersey, 070
Collectively, the MCUA and the Public Entity are referred to herein as the "Parties."
RECITALS
WHEREAS, the MCUA owns and operates a state of the art Landfill facility located in East
Brunswick, Middlesex County, commonly known as the Middlesex County Landfill (the "Landfill "); and
WHEREAS, the Public Entity desires to dispose all of its Acceptable Solid Waste ( "ASW ") at the
Landfill without aggregation with any other parties or public entities; and
WHEREAS, the Parties have negotiated favorable temis and conditions regarding the delivery by
the Public Entity of ASW and the disposal thereof by the MCUA all as provided herein;
NOW, THEREFORE, in consideration of the mutual promises contained in this Agreement, the
MCUA and the Public Entity mutually agree as follows:
1. The MCUA will accept for disposal from the Public Entity without aggregation with any
other parties or public entities all of its ASW which shall only include that solid waste which (a) the Public
Entity collects and transports, or has collected and transported on its behalf, (b) is generated within
Middlesex County, (c) does not include any ID 13 waste types, and (d) is authorized for disposal at the
Landfill pursuant to Applicable Law and the MCUA's Policies and Procedures (the "P &P ") attached hereto
as Exhibit A and incorporated herein, as either may be revised from time to time by the MCUA. The Public
Entity shall at all tines during the tern of this Agreement comply with the P &P and the Middlesex County
Solid Waste Management Plan and shall require any of its Contracted Haulers to be in compliance with
sane.
2. The MCUA agrees to operate and maintain the Landfill in accordance with Applicable
Law.
3. The MCUA shall charge the Public Entity and the Public Entity shall pay to the MCUA
the Contract Rate, as defined herein, for each ton of ASW, as measured at the Landfill scales, subject to the
tonnage limit set forth in paragraph 5 below. The Contract Rate shall be $63.75 per ton of ASW in 2016,
$64.75 per ton of ASW in 2017, and $65.75 per ton of ASW in 2018. The Contract Rate includes all
charges on account of regulatory or other taxes or charges which may be imposed on the MCUA as of the
date of this Contract. The MCUA reserves the right to adjust rates in the case of new or increased regulatory
charges or taxes imposed on MCUA during the term of this Contract. The Public Entity agrees to cause all
of the Middlesex County generated ASW collected and transported by it or on its behalf to be transported to
the Landfill. In return, the Public Entity is offered the lowest per ton fee. If at any time during this
Agreement, the Authority determines that the Public Entity is not in compliance with this requirement, the
Public Entity will be considered in default and subject to the terms outlined in Paragraph 6 of this
Agreement.
4. The tens of this Agreement shall corrnnence on January 1, 2016 and shall continue in full
force and effect until the expiration on December 31, 2018.
5. The Public Entity agrees to cause all of the Middlesex County- generated ASW collected
and transported by it or on its behalf to be transported to the Landfill for disposal, and the Public Entity
further agrees not to deliver to the Landfill for disposal either any waste which is not ASW as defined in
paragraph 1 above (herein defined as "Unacceptable Solid Waste" or "USW ") or waste aggregated from
other parties or public entities. The Public Entity shall be responsible for any USW delivered by it in
accordance with the MCUA's Policies and Procedures.
The Public Entity estimates that the following will be its estimated ASW for the next three (3) years:
2016 Tons
2017 c c Tons
2018 O I Tons
If at the end of any contract year, the Public Entity has provided less than 85% of the estimated ASW, the
Public Entity shall provide to the MCUA a written explanation for the deficiency.
6.(a) In the event that either the MCUA or the Public Entity, as the case may be, fails to fulfill a
material obligation required by this Agreement (the "Defaulting Party "), the other Party (the "Non -
Defaulting Party ") shall provide notice therefore to the Defaulting Party and an opportunity to cure which is
reasonable under the circmnstances then existing. In the absence of a cure or efforts to continence cure, as
appropriate, the Non - Defaulting party may deliver to the Defaulting Party a Notice of Termination hereof,
not to be effective sooner than the 15th business day thereafter.
6.(b) Notwithstanding the above, in the event that the Public Entity does not deliver all of its
ASW to the Landfill during the term of this Agreement, in addition to the MCUA's right to terminate after
three (3) days notice, the Public Entity shall pay as damages to MCUA the difference between the Gate Rate
and the contract rate for the relevant year, for all ASW delivered during the relevant year.
EXAMPLE:
If the Public Entity delivers 2000 tons of ASW to the Landfill by December of 2016 and
MCUA discovers that it has not delivered all of its ASW to MCUA, the damages shall be determined as
follows if the Gate Rate is $70.25:
Gate Rate $70.25 /ton
Contract Rate 63.75 /ton
$6.50 /ton x 2000 tons or $13,000
7. Where applicable, any rate discount for ASW made available to any other entity, would
also be available to the Public Entity covered by this Agreement. MCUA shall advise the Public Entity of
the availability of such a discount.
8. Each Party agrees to indemnify and hold harmless (and, upon request, defend), the other
from and against any "Losses" arising out of or in comiection with any failure to fulfill their respective
obligations set froth in this Agreement, or any actions pursuant to this Agreement, to the fullest extent
permitted by Applicable Law. For purposes of this Agreement, "Losses" means and includes any and all
loss, expense, damage, injury, claim, demand, liability, judgment, award or settlement asserted, suffered or
sustained by a Party to this Agreement. This indemnity obligation of each Party shall survive any
termination or expiration of this Agreement.
9. Either Party shall be excused from any failure to perform as required herein to the extent
caused by an Uncontrollable Circmnstance ( "UC "). An UC is any event the cause of which is beyond the
control and without the fault of the Party alleging the occurrence of an UC excusing that Party from
performance. The Parties agree to cooperate m order to eliminate said UC, by providing prompt and
complete notice to the other thereof, as is reasonable under the circumstances, and by taking action which is
reasonably appropriate in response thereto, as each Party may in its sole discretion and in good faith
determine.
10. Any disputes arising in correction with this Agreement shall be resolved by a court of
competent jurisdiction located within the County of Middlesex, State of New Jersey and each Party
consents to the jurisdiction of such court. The Public Entity agrees that service of process on the Public
Entity may be made, at the option of the MCUA, either by registered or certified mail or overnight delivery
addressed to the applicable office as provided for in this Agreement, by registered or certified mail,
overnight delivery or by personal delivery on the agent of the Public Entity identified in paragraph 17
below.
11. During the pendency of any dispute, the Parties shall continue to perform their obligations
set forth herein unless this Agreement shall be terminated. The foregoing notwithstanding, the Public Entity
agrees to promptly pay to the MCUA any sums due which are not hi dispute.
12. As used in this Agreement, "Applicable Law" means any federal, state, county or local
statute, ordinance, regulation, ruling, order, enactment, requirement, permit, approval or authorization of
any Government Agency (which includes any regional, federal, state or local court, administrative agency or
governmental office, officer or body, including any federal, state or local legislative body, court or tribunal,
having jurisdiction over the Parties), with which the MCUA or the Public Entity, as the case may be, must
comply in comnection with the performance of their respective obligations under this Agreement. However,
Applicable Law shall not include any law of the Public Entity which has the purpose or effect of frustrating
the intent of this Agreement or interfering with the ability of the Public Entity or the MCUA, as the case
may be, to fulfill its respective obligations hereunder.
13. The Parties hereto acknowledge that each is independent of the other and as such, is
wholly responsible for methods and means to be utilized to fulfill its obligations contained in this
Agreement. Nothing herein shall create any responsibility other than that which is expressly provided by or
reasonably inferable from the terms of this Agreement. No provision of this agreement shall be deemed to
constitute either Party a partner, agent or legal representative of the other Party or to create any fiduciary
relationship between the Parties. Both parties represent that they possess the legal authority to enter into
this Agreement and that the individual signing this Agreement has the authority to bind the Party for which
he or she is signing.
14. Nothing contained in this Agreement is intended to create any rights for or to otherwise
benefit any parties other than the Parties to this Agreement. To the extent possible, the Parties agree to
cooperate to defend against any actions which may be brought against either of them by persons not panties
to this Agreement.
15. The Parties shall in good faith consult and cooperate with each other, in every reasonable
respect, regarding contacts or communications with any Governmental Agency which may impact in a
material way any rights or obligations of either of them.
16. Each Party agrees to take all actions, including but not limited to the execution of
documents, which are necessary or reasonably required or requested in order to fulfill the intent of this
Agreement, and to ensure its full force and effect. The foregoing notvithstanding, neither Party shall be
required to perform any act which modifies in any respect the obligations assumed or imposed upon it by
this Agreement and the transaction which it reflects.
17. Except as expressly provided herein, the failure of either the MCUA or the Public Entity
to enforce at any time any provision of this Agreement or to require at any time performance by the other of
any of the provisions hereof, shall not be construed as a waiver of such provision and shall not, in any way,
affect the validity of this Agreement or any provision hereof. This Agreement shall be governed by the laws
of the State of New Jersey and shall for all purposes be enforced in accordance therewith.
18. As soon as practicable, either Party shall provide notice pursuant to Paragraph 17 hereof
of any conditions or chcuwnstances of which it becomes aware which may materially impact upon
obligations assumed by either Party hereunder.
19. Any ambiguity in this Agreement shall be resolved in favor of the most reasonable
interpretation in light of the context of the provision, its purpose and its conformity to the other
requirements of this Agreement and Applicable Law. This Agreement, having been prepared with the
participation of the Parties hereto and their respective counsel, shall be construed without regard to any
presumption or other rule requiring construction against the Party who prepared or drafted the instrument.
20. Each Party acknowledges that it is an equal opportunity employer and shall not
discriminate against any employee or applicant for employment because of race, creed, sex or national
origin. Each Party agrees to comply with all Applicable Laws regarding non-discrimination including but
not limited to the affirmative action requirements of P.L. 1975, C.127 and the rules and regulations issued
by the Treasurer, State of New Jersey (hereinafter the "Treasurer ") pursuant thereto. The Parties to this
Agreement agree to comply with P.L. 1975, c.127 and incorporate herein Exhibit B which contains the
mandatory language promulgated by the Treasurer of the State of New Jersey set forth in N.J.A.C. 17:27 -
3.4(a) and N.J.A.C. 17:27 -5.3.
21. If any provision of this Agreement shall be held or deemed to be or shall in fact be
inoperative or unenforceable because it conflicts with any other provision or provisions hereof or of any
Applicable Law or public policy, or for any other reason, such circumstances shall not have the effect of
rendering the provision in question inoperative or unenforceable in any other case or circumstances, or of
rendering any other provision(s) herein invalid, inoperative, or unenforceable to any extent whatsoever.
The invalidity or any one or more phrases, sentences, clauses, sections or articles contained in this
Agreement shall not affect the remaining portions of this Agreement or any part hereof and same shall
remain in effect and be fully enforceable.
22. This Agreement shall not be changed, modified or amended except by a written
agreement which is executed by both Parties.
23. This Agreement may be signed in two or more original counterparts, each of which shall
be deemed to be an original hereof but all of which shall constitute one and the same instrument.
24. This Agreement shall not be assigned by either Party.
25. No official, employee or agent of the MCUA or the Public Entity shall be charged by a
Party hereto with any individual or personal liability or expenses of defense or be held personally liable to
either of them in connection with (i) any term or provision of this Agreement; (ii) either the Public Entity's
execution or attempted execution, or the MCUA's execution or attempted execution of this Agreement; or
(iii) a breach of this Agreement which occurs within the scope of any such official's responsibilities.
26. Notices, reports and other communications required or permitted under this agreement
shall be in writing and transmitted to the Executive Director on behalf of the MCUA and to the
Bo D of Cartere the Public Entity, as the case may be, at their respective addresses first identified
above.
27. This Agreement and its Exhibits embody the complete agreement of the Parties hereto
and shall supersede all previous and contemporary oral or written agreements, discussions or other
communications.
IN WITNESS WHEREOF, the Parties have caused this Agreement to be executed by
their duly authorized representatives on the date first above written.
ATTEST:
ATTEST:
KATHLEEN M. BARNEY, MMC
Municipal Clerk
MIDDLESEX COUNTY UTILITIES AUTHORITY
RICHARD L. FITAMANT, P.E.
Executive Director
PUBLIC ENTITY:
Name: Borough of Carteret
By: � 1 -
Na g 6: John P. DuPont, P.E.
Title: Director of Municipal Engineering
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