EXHIBIT 10.41
DISPOSAL SERVICES AGREEMENT
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This Disposal Services Agreement (the "Agreement") is made
and entered into as of this 31st day of October, 1995, by and
between Chemical Waste Management, Inc., a Delaware corporation,
and its subsidiary and affiliated companies ("Chemical Waste
Management") and Clean Harbors Environmental Services, Inc., a
Massachusetts corporation, and its affiliated companies ("Clean
Harbors").
WHEREAS, the parties hereto are also among the parties to an
Asset Purchase Agreement dated as of January 30, 1995 pursuant to
which Clean Harbors of Chicago, Inc. is acquiring certain assets,
formerly owned by CWM Chemical Services, Inc. and Chemical Waste
Management, which are located at 11700 South Stony Island Avenue,
Chicago, Illinois ("Asset Acquisition"); and
WHEREAS, in connection therewith, Clean Harbors and Chemical
Waste Management are entering into this Disposal Services
Agreement in order to provide Clean Harbors with incentives to
deliver certain Waste Products for disposal at Permitted
Facilities owned and operated by Chemical Waste Management and to
establish waste approval, disposal decision, pricing and delivery
schedule obligations between the parties with respect to such
deliveries of Waste Products.
NOW, THEREFORE, in consideration of the mutual promises of
the parties contained herein and for other good and valuable
consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties, intending to be legally bound, do
hereby agree as follows:
ARTICLE I
REPRESENTATIONS AND WARRANTIES OF CHEMICAL WASTE MANAGEMENT
Chemical Waste Management hereby represents and warrants to
Clean Harbors as follows:
Section 1.1 Participating Facilities
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Directly or through its subsidiaries or affiliates, Chemical
Waste Management owns and operates the Participating Facilities.
The Participating Facilities are intended to include all
facilities owned or operated by Chemical Waste Management, now or
in the future, including but not limited to those listed in
Article VI.
Section 1.2 Operation of Participating Facilities
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(a) Chemical Waste Management understands the currently known
hazards and risks which are presented to human beings, property
and the environment in the handling, transportation, storage,
treatment, processing and disposal of Permitted Waste Products.
(b) Chemical Waste Management is engaged in the business of
transportation, storage and disposal of industrial and other
wastes, and has developed the requisite expertise for the
handling, transportation, storage, treatment, processing and
disposal of Permitted Waste Products.
(c) Chemical Waste Management will handle, load, stow,
transport, store, treat, process and dispose of Permitted Waste
Products in a safe and workmanlike manner and in full compliance
with all valid and applicable statutes, ordinances, orders, rules
and regulations of the federal, state and local governments in
whose jurisdictions such activities are performed under this
Agreement.
(d) Chemical Waste Management has been issued, as of the date
of execution of this Agreement, all permits, licenses,
certificates or approvals, required by valid and applicable
statutes, ordinances, orders, rules and regulations of the
federal, state and local governments having jurisdiction over each
of the Participating Facilities, necessary to accept and store,
treat, process and dispose of Permitted Waste Products.
(e) During the term of this Agreement, Chemical Waste
Management shall provide Clean Harbors with reasonable advance
notice if any permit, license, certificate or approval for any of
the Participating Facilities is to expire and not be renewed
during the term of this Agreement. Such notice shall also be
provided if Chemical Waste Management determines not to seek any
necessary permit, license, certificate of approval for any of the
Participating Facilities which becomes required after execution of
this Agreement.
(f) Chemical Waste Management shall at all times during the
term of this Agreement cause the Participating Facilities to be in
compliance with all financial responsibility requirements
pertaining to sudden and non-sudden occurrences and closure or
post-closure costs as may be required by applicable federal, state
or local statute, bylaw, ordinance or regulation. Chemical Waste
Management shall also at all times during the term of this
Agreement cause the Participating Facilities to be in compliance
with all applicable liability, worker's compensation and other
insurance requirements. Chemical Waste Management shall, upon
request, furnish Clean Harbors with a copy of certificates of
insurance or other documents evidencing such insurance or
financial assurances.
(g) During the term of this Agreement, Chemical Waste
Management shall promptly advise Clean Harbors of the institution
of judicial or administrative proceedings by federal, state or
local authorities to suspend, modify or revoke any permit,
license, certificate or like approval for any of the Participating
Facilities.
Section 1.3 Effect on Other Warranties
--------------------------------------
The warranties and representations contained in this Article
are in addition to and not in derogation of the warranties and
representations contained in any other written agreements executed
by the parties.
ARTICLE II
TERM OF THE AGREEMENT; DISPOSAL FEES; DISPOSAL COMMITMENT;
ACCEPTANCE OF PERMITTED WASTE; PREFERRED CUSTOMER STATUS PRODUCTS
Section 2.1 Term of the Agreement
---------------------------------
The term of this Agreement shall be for five (5) years,
commencing on October 31, 1995 and terminating on the fifth
anniversary thereof.
Section 2.2 Disposal Fees
-------------------------
The fees payable by Clean Harbors for disposal of all
Permitted Waste Products at any of the Participating Facilities
shall, in each instance, be that price mutually agreed upon by
Chemical Waste Management and Clean Harbors. The disposal fees
paid by Clean Harbors to Chemical Waste Management shall, in every
instance, be: (1) no higher than the lowest disposal fees offered
by Chemical Waste Management to its commercial, non-governmental
customers; (2) no more than ten (10) percent higher than the
disposal fees charged by Chemical Waste Management to its
subsidiaries or affiliated companies, including but not limited to
AETS ("Affiliates"), for field services work or project bids where
Clean Harbors is bidding in competition against such Affiliates;
and (3) no more than five (5) percent higher than the disposal
fees offered to Clean Harbors by competitors of Chemical Waste
Management. The parties acknowledge that it is the intent of this
Agreement that Clean Harbors shall pay lower disposal fees each
year by utilizing the Participating Facilities pursuant to this
Agreement than it would otherwise pay to utilize the disposal and
treatment facilities of Chemical Waste Management without the
benefit of this Agreement or Facilities of competitors of Chemical
Waste Management. Clean Harbors may request a fixed price for a
specific time period for a contract that Clean Harbors is bidding
or has been awarded.
Section 2.3 Disposal Commitment; Acceptance of Permitted
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Waste Products
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Subject to the conditions below and the disposal fee criteria
in Section 2.2, Clean Harbors shall use its best efforts to
deliver Permitted Waste Products to Chemical Waste Management for
disposal or treatment at Participating Facilities, and Chemical
Waste Management shall accept, store, treat and dispose of all
Permitted Waste Products so delivered in accordance with this
Agreement; provided, however, that the foregoing shall not
prohibit or restrict Clean Harbors from utilizing (a) its own
disposal or treatment facilities (or those owned by any subsidiary
or affiliated company of Clean Harbors) for disposal or treatment
of any Permitted Waste Products, or (b) the disposal or treatment
facilities of any competitor of Chemical Waste Management for
disposal or treatment when (i) so requested by Clean Harbors'
customers; (ii) the Participating Facility cannot meet the
schedule for acceptance of the Waste Products required by Clean
Harbors; (iii) CWM fails to meet (within 5%) a lower price offered
to Clean Harbors by a competitor of Chemical Waste Management in
accordance with Section 2.2 hereof after a reasonable opportunity
to do so (which shall include making a Disposal Decision within
the time limits specified in Section 4.3 hereof); (iv) the
Chemical Waste Management Participating Facility has been unable
to offload and return Clean Harbors' vehicles in a timely manner;
or (v) Chemical Waste Management decides to cease accepting a
Permitted Waste Product or Products at a Participating Facility or
Facilities.
When Clean Harbors requests a lower price from Chemical Waste
Management, Clean Harbors shall give Chemical Waste Management
verbal notice of having been quoted (or of a customer or
prospective customer of Clean Harbors having been quoted) a price
for disposal or treatment services substantially similar in type
and quality to those provided hereunder, which price is lower than
the price determined pursuant to Section 2.2 hereof, when
aggregated with any applicable transportation charges (priced
according to Clean Harbors' published schedule of standard
transportation charges), taxes, fees, special handling charges and
other assessments.
Section 2.4 Preferred Customers Status
--------------------------------------
For the term of this Agreement, Clean Harbors shall be
treated as a preferred customer by Chemical Waste Management with
regard to Waste Products approval, scheduling of Waste Products
delivery and the offloading and return of waste handling vehicles.
No special charges, profile or analytical costs, levies or
assessments of any type shall be charged to Clean Harbors by
Chemical Waste Management or the Participating Facilities.
Notwithstanding the foregoing, Chemical Waste Management may
charge standard off-specification charges for Permitted Waste
Products which are not in substantial conformance with the Waste
Profile Sheet, PROVIDED, however, that Clean Harbors agrees to pay
such off-specification charges prior to the acceptances of the
Waste by the Participating Facility.
ARTICLE III
FORCE MAJEURE
Section 3.1 Suspension of Performance
-------------------------------------
The performance of this Agreement, except for the payment of
money for services already rendered, may be suspended (a) by Clean
Harbors in the event that the delivery or transportation of
Permitted Waste Products by Clean Harbors is prevented by a cause
or causes beyond the reasonable control of Clean Harbors, or (b)
by Chemical Waste Management in the event that the transportation,
storage, treatment, processing or disposal of Permitted Waste
Products by Chemical Waste Management is prevented by a cause or
causes beyond the reasonable control of Chemical Waste Management.
Such causes shall include, but not be limited to, acts of God,
acts of war, riot, fire, explosion, accident, flood, or sabotage;
lack of adequate fuel, power, raw materials, labor or
transportation facilities; government laws, regulations,
requirements, orders of actions; breakage or failure of machinery
or apparatus; national defense requirements; injunctions or
restraining orders; labor trouble, strike, lockout or injunction
(provided that neither party shall be required to settle a labor
dispute against its own best judgment).
The party asserting a right to suspend performance under this
Section 3.1 shall, within a reasonable time after it has knowledge
of the effective cause, notify the other party of the cause for
suspension, the performance suspended and the anticipated duration
of suspension, and shall use its reasonable best efforts to
rectify the effective cause of the suspension.
ARTICLE IV
HAZARDOUS WASTE ANALYSIS AND
ACCEPTANCE AT PARTICIPATING FACILITIES
Section 4.1 Waste Profiles
--------------------------
For the term of this Agreement, Clean Harbors may utilize the
waste profile sheets currently established and on file with
Chemical Waste Management for Permitted Waste Products presently
originating from any facility owned or operated by Clean Harbors,
or directly from the customers of either of them; provided,
however, that Chemical Waste Management reserves the right to
require periodic recertification (including, but not limited to,
submission of a new waste material profile sheet and a
representative sample of waste) of any waste stream for which a
waste profile sheet is currently maintained, and such other
recertifications as my be required by Chemical Waste Management
policies and procedures or government regulations.
Section 4.2 Laboratory Analysis
-------------------------------
During the term of this Agreement, for all Permitted Waste
Products delivered or caused to be delivered by Clean Harbors to
Participating Facilities, Chemical Waste Management shall accept
the analysis performed by the Clean Harbors laboratory located at
Braintree, Massachusetts, or by a certified laboratory of similar
capabilities operated by Clean Harbors at another location,
provided such laboratory has been certified by Chemical Waste
Management; provided further, that Chemical Waste Management
reserves the right to require a yearly audit and recertification
of any laboratory operated by Clean Harbors and qualifying under
this Section. Certification and recertification of laboratories
by Chemical Waste Management shall be conducted in accordance with
its policies and procedures and such certification or
recertification shall not be unreasonably withheld by Chemical
Waste Management.
Section 4.3 Disposal Decision and Disposal Request Deadlines
------------------------------------------------------------
Chemical Waste Management and Participating Facilities shall
render disposal decisions on Waste Products offered for disposal
by Clean Harbors in accordance with the following schedule: (1)
for disposal decisions that require Chemical Waste Management to
perform laboratory analysis, a decision will be rendered and
communicated within ten (10) business days from receiving a new
waste material profile sheet and sample, and (2) for disposal
decisions that Clean Harbors has provided the laboratory analysis
in accordance with Section 4.2, or for which laboratory analysis
is not required, a decision will be rendered and communicated
within three (3) business days from receipt of paperwork.
Chemical Waste Management and Participating Facilities shall
communicate a schedule date within two (2) business days after a
disposal request is received from Clean Harbors. In no event
shall the waste product delivery to the Participating Facilities
be scheduled more than ten (10) business days after the receipt of
the disposal request by Chemical Waste Management or the
participating facilities.
Section 4.4 Analysis Charges
----------------------------
For the term of this Agreement, Chemical Waste Management
will not charge Clean Harbors for analysis of any Permitted Waste
Product proposed for disposal at Participating Facilities,
provided that an analysis necessary for disposal of said waste has
been performed by a laboratory identified in Section 4.2 and
provided to Chemical Waste Management.
Section 4.5 Termination of Disposal
-----------------------------------
In the event that Chemical Waste Management decides to cease
accepting a Permitted Waste Product at a Participating Facility
for which a waste profile sheet currently exists, Clean Harbors
shall be given 30 days advance notice thereof, provided that in
the event that Chemical Waste Management is obligated to cease
accepting a Permitted Waste Product due to force majeure, this
notice provision shall not apply. In the event that Chemical
Waste Management elects to cease accepting a Permitted Waste
Product or Products pursuant to this Section 4.5, Clean Harbors
shall thereby be authorized by Chemical Waste Management to
contract with competitors of Chemical Waste Management on such
terms as may be necessary to dispose of such Permitted Waste
Product or Products.
ARTICLE V
INDEMNIFICATION
Section 5.1 Indemnification by Chemical Waste Management
--------------------------------------------------------
Chemical Waste Management shall indemnify and save harmless
Clean Harbors, and its subsidiary companies and its affiliates,
and their present and future officers or directors (or officials),
employees and agents, from and against any and all liabilities,
penalties, fines, forfeitures, demands, claims, causes of action,
suits, and costs and expenses incidental thereto (including cost
of defense, settlement, and reasonable attorney's fee), which any
or all of them may hereafter suffer, incur, be responsible for or
pay out as a result of bodily injuries (including death) to any
person, damage (including loss of use) to any property (public or
private), contamination of or adverse effects on the environment,
or any violation or alleged violation of statutes, ordinances,
orders, rules or regulations of any governmental entity or agency,
either (a) directly or indirectly caused by, or arising out of
breach of any warranties by Chemical Waste Management or any
negligent of willful act or omission of Chemical Waste Management,
its employees or its subcontractors in the performance of this
Agreement; or (b) associated with cleanup of any of the
Participating Facilities, arising out of said Participating
Facilities' becoming subject to removal or remedial actions under
the Comprehensive Environmental Response, Compensation and
Liability Act of 1980, as amended, the Resource Conservation and
Recovery Act, or any comparable state statutes or other applicable
environmental authorities except to the extent of the
indemnification by Clean Harbors provided for in Section 5.2
hereof.
Section 5.2 Indemnification by Clean Harbors
--------------------------------------------
Clean Harbors shall indemnify and save harmless Chemical
Waste Management and its affiliates, and its present and future
officers or directors (or officials), employees and agents, from
and against any and all liabilities, penalties, fines,
forfeitures, demands, claims, causes of action, suits, and costs
and expenses incidental thereto (including cost of defense,
settlement, and reasonable attorney's fees), which any or all of
them any hereafter suffer, incur, be responsible for or pay out as
a result of bodily injuries (including death) to any person,
damage (including loss of use) to any property (public or
private), contamination of or adverse effects on the environment,
or any violation or alleged violation of statutes, ordinances,
orders, rules or regulations of any governmental entity or agency,
directly or indirectly caused by, or arising out of breach of any
warranties by Clean Harbors, or any negligent or willful act or
omission of Clean Harbors, its employees or its subcontractors in
the performance of this Agreement except to the extent of the
indemnification by Chemical Waste Management provided for in
Section 5.1 hereof.
ARTICLE VI
CERTAIN DEFINITIONS
As used in this Agreement or Appendix A hereto, the following
capitalized terms shall have the meanings stated below or, as
indicated, elsewhere in this Agreement:
Business Day - Business Day shall mean Monday through
------------
Friday excluding national holidays.
Disposal Decision - Disposal Decision shall mean a
-----------------
determination by Chemical Waste Management or a
Participating Facility to: (1) accept or reject a given
"hazardous waste" for disposal, based on acceptance
criteria of the Participating Facility; and (2) the
schedule by which such waste shall be accepted by the
Participating Facility in accordance with Section 4.3
hereof.
Disposal Fee - Disposal Fee shall be that price,
------------
including transportation costs, taxes, special
assessments and all other fees, that Clean Harbors may
pay to Chemical Waste Management or to competitors of
Chemical Waste Management for the disposal of Waste
Products.
Disposal Request - Disposal Request shall mean
----------------
notification by Clean Harbors, either orally or in
writing, of a desire to deliver a Permitted Waste
Product to a Participating Facility for disposal.
Part A Permits - Part A Permits shall mean the
--------------
Participating Facilities' respective RCRA Part A
Permits, as from time to time amended or modified.
Participating Facility - A Participating Facility shall
----------------------
mean all facilities owned or operated by Chemical Waste
Management or its subsidiaries or affiliates including,
but not limited to, the following facilities:
Participating Facility Location
Controlled Waste Menomenee Falls, Wisconsin
Coatesville Facility Coatesville, Pennsylvania
Arlington Facility Arlington, Oregon
Kettleman Facility Kettleman Hills, California
RML Facility Morrow, Georgia
LWMRR Facility West Carrolton, Ohio
Model City Treatment Center Model City, New York
Adams Center Facility Fort Wayne, Indiana
Emelle Treatment Center Emelle, Alabama
Lake Charles Treatment Center Lake Charles, Louisiana
Newark Treatment Center Newark, New Jersey
Injection Well Facility Vickery, Ohio
Port Arthur Facility Port Arthur, Texas
Trade Waste Incineration Sauget, Illinois
Memphis Facility Millington, Tennessee
OSCO Facility Azula, California
OSCO Facility Henderson, Colorado
In addition to the above-described Participating
Facilities, the term "Participating Facilities" shall
apply to any other treatment or disposal facility which
is permitted to accept any type of Waste Products and
which Chemical Waste Management directly or through
subsidiaries owns or operates, now or in the future.
Conversely, the term "Participating Facilities" shall
not apply, after 60 days prior written notice to Clean
Harbors, to any of such Participating Facilities which
are no longer permitted to accept Waste Products by
applicable government regulations and/or the policies
and procedures of Chemical Waste Management.
Permitted Waste Products - Permitted Waste Products
------------------------
shall mean those Waste Products which are identified in
the Part A Permits and which applicable government
regulations and the policies and procedures of Chemical
Waste Management permit the Participating Facilities to
dispose or otherwise handle.
Waste Products - Waste Products shall mean any substance
--------------
or material identified as a "hazardous waste", either by
characteristics or listing, in regulations promulgated
or revised under Section 3001 of the Resource
Conservation and Recovery Act of 1976, as amended
("RCRA"); any substance or material that is regulated as
a hazardous waste by the state in which Clean Harbors
took possession of said substance or material and by the
state in which the Participating Facility is located;
and any substance or material whose disposal is
regulated pursuant to the Toxic Substances Control Act
of 1976 ("TSCA"). Waste Products shall not include
waste oil or any substance or material that is not
required by applicable state or federal law to be
disposed of at a facility regulated under RCRA or TSCA.
ARTICLE VII
OTHER PROVISIONS
Section 7.1 Extension of Time; Waiver of Performance
----------------------------------------------------
The parties may extend the time for or waive the performance
of any of the obligations or warranties of the other, or waive
compliance by the other with any of the covenants or conditions
contained in this Agreement. Any such extension or waiver shall
be in writing and shall be signed by the party extending or
waiving the performance or decision deadline.
Section 7.2 Notice
------------------
Except for notice given pursuant to Section 4.3 hereof, any
notice to a party pursuant to this Agreement shall be given by
certified or registered mail, or by private carrier providing
evidence of receipt as part of its services, addressed as follows:
if to Chemical Waste Chemical Waste Management, Inc.
Management or SCA 3001 Butterfield Road
Services: Oak Brook, IL 60521
Attn: President
with a copy to: Chemical Waste Management, Inc.
3001 Butterfield Road
Oak Brook, IL 60521
Attn: General Counsel
if to Clean Harbors: Clean Harbors
325 Wood Road
Braintree, MA 02184
Attn: President
with a copy to: Clean Harbors
325 Wood Road
Braintree, MA 02184
Attn: General Counsel
or to such other address as may be designated in writing by either
party from time to time in accordance herewith, and shall be
deemed delivered when placed in the mail or given to private
carrier so addressed, with postage prepaid.
Section 7.3 Contract Administrators
-----------------------------------
As soon as practicable after the date of this Agreement,
Chemical Waste Management and Clean Harbors shall each designate a
representative who shall act as the initial contact for matters
arising under this Agreement and who shall assist in the
administration of this Agreement.
Section 7.4 Access to Records; Confidential Information
-------------------------------------------------------
The parties shall afford their respective representatives
such access during normal business hours and upon reasonable
notice to each other's business records as may be necessary to
ascertain their compliance with the terms of this Agreement,
including, in the case of environmental audits from time to time
conducted by Clean Harbors, access to such records of the
Participating Facilities demonstrating compliance with applicable
environmental laws or regulations. Except as required by law or
as is necessary to perform this Agreement, any information
obtained by either party from the other shall not be disclosed or
used by such party for any purpose other than for which it was
intended pursuant to this Agreement, and except as required by
law, neither party shall disclose to others the terms of this
Agreement.
Section 7.5 Remedies
--------------------
The parties agree that any material breach of Article II of
this Agreement by Chemical Waste Management could cause
irreparable damage or harm to Clean Harbors and in the event of
any such breach Clean Harbors shall have, in addition to any and
all other remedies at law, the right to an injunction, specific
performance or other equitable relief to prevent the violation of
this Agreement, provided that in any such case Clean Harbors shall
be in compliance with the terms of the Subsidiary Agreements.
Section 7.6 Arbitration
-----------------------
In the event that a dispute shall arise as to the meaning of
any term or provision of this Agreement or as to the accuracy of
any amount calculated or reported hereunder or as to whether
either party shall have breached or caused a default hereunder,
the parties agree to submit their dispute to final and binding
arbitration before the American Arbitration Association, and
pursuant to the rules and regulations thereof, with the site of
such arbitration to be within ten (10) miles of the City of
Boston. Neither party shall have the right to terminate this
Agreement unless and until it shall be determined by a decision of
such arbitration that the other party has caused a breach and the
other party shall not, within twenty (20) days after any such
decision becomes final, paid all damages awarded by the
arbitration decision and/or corrected any default or inaccuracy
determined by the arbitration.
Section 7.7 Quarterly Meeting
-----------------------------
Representatives of Chemical Waste Management and Clean
Harbors shall meet at least once in each calendar quarter during
the term of this Agreement to review the implementation of this
Agreement.
Section 7.8 Assignment
----------------------
This Agreement shall not be transferred or assigned except to
a parent, subsidiary or other affiliated company of either party
and except as collateral security to an institutional lender which
shall have all of the rights of a secured party under the Uniform
Commercial Code; provided, however, that no such transfer or
assignment shall operate to relieve either party of its
responsibilities under this Agreement.
Section 7.9 Confidentiality
---------------------------
The provisions of this Agreement shall be kept confidential
by the parties. In the event that either party is requested to
disclose any information concerning this Agreement by any third
party, it shall promptly notify the other party.
Section 7.10 Construction of Agreement
--------------------------------------
This instrument is to take effect as a sealed instrument and
is to be construed according to the laws of the Commonwealth of
Massachusetts. This instrument sets forth the entire agreement
between the parties with respect to the subject matter hereof and
is binding upon and inures to the benefit of the parties hereto
and their respective legal successors and assigns. It may be
canceled, modified or amended only by a written instrument
executed by the parties. The captions are used only as a matter
of convenience, and are not to be considered a part of this
Agreement or to be used in determining the intent of the parties
to it.
Section 7.11 Execution in Counterparts
--------------------------------------
This Agreement may be executed in any number of counterparts,
each of which shall be deemed an original.
IN WITNESS WHERE, the parties have executed this Agreement as
of the date first above written.
CHEMICAL WASTE MANAGEMENT, INC.
____________________________ By:____________________________
Witness President
CLEAN HARBORS ENVIRONMENTAL
SERVICES, INC.
__________________________ By:_________________________
Witness President