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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 5