LABOR UTILIZATION AGREEMENT
VERSION 6 August 7, 1996
LABOR UTILIZATION AGREEMENT
This Agreement ("Agreement") is made by and between Xxxxxxx Waste
Systems, Inc., a foreign corporation duly authorized to do business in the State
of New York, having its principal place of business at Xxx 000, Xxxxxxx, Xxxxxxx
00000 ("Casella") and Clinton County, a New York State Municipal Corporation,
created under Article 9 of the New York State Constitution, having a principal
place of business at 000 Xxxxxxxx Xxxxxx, Xxxx xx Xxxxxxxxxxx, Xxxxxx of
Clinton, State of New York 12901 ("County").
WHEREAS the County and Casella have entered into an Operation,
Management and Lease Agreement relative to the operation of certain facilities
for the collection and management of solid waste located within Clinton County;
and
WHEREAS the County and its employees are currently parties to a
collective bargaining agreement for the period January 1, 1995 through December
31, 1996 covering certain Employees providing services at the Landfill and
Recycling Program; and
WHEREAS the County and Casella have determined that the County shall
remain the employer of the current Employees providing such services and that
those Employees should remain employed by the County under the terms and
conditions of the current CBA;
NOW, THEREFORE, in consideration of the representations, warranties,
promises, covenants, and agreements hereinafter contained and contained in the
Operation, Management and Lease Agreement, and other good and valuable
consideration the receipt and sufficiency of which is hereby acknowledged, the
parties agree as follows:
1. DEFINITIONS
For the purpose of this Agreement, all capitalized words and phrases
shall have the meanings set forth in the Operation, Management and Lease
Agreement except to the extent a meaning is set forth as follows:
(a) "CBA" shall mean the Collective Bargaining Agreement for the period
January 1, 1995 through December 31, 1996, between the County and the Civil
Service Employees Association, Inc., Local 1000/AFSCME, AFL-CIO, Clinton County
Unit 6450-6466 of Local 810 ("CSEA"), and any successor agreement thereto.
(b) "Employees" shall mean any and all employees of the County covered
by the CBA and providing services to the County at the Facilities.
(c) "Labor Adjustment" shall mean the adjustment to the Tipping Fee or
other payments as provided in Section 3B hereof.
(d) "Director, Solid Waste" shall mean the management position
designated as exempt from coverage under the CBA.
2. EMPLOYEES
A. Employment Relationship. Casella and the County agree that the
current Employees shall remain Employees of the County. Nothing in this
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Agreement, the Operation, Management and Lease Agreement, or the Host Agreement
is intended or shall be deemed to create an employment relationship between
Casella and the Employees. All terms and conditions of employment set forth in
the CBA or as may be provided by law shall remain in force and effect throughout
the term of the CBA. The Employees shall continue to be paid by the County and
shall continue to maintain their civil service status under state and local law
and to receive all benefits as provided by the County. The County and the
Employees shall continue to be bound by all applicable provisions of the Civil
Service Rules of Clinton County and of all state or local laws applicable to
their employment relationship. The County agrees to satisfy all of its
contractual and legal obligations with regard to any duty to bargain in good
faith with its Employees under the CBA.
B. Employee Assignments and Supervision. Casella and the County agree
that Casella will utilize the services of those Employees hired by the County
and provided to Casella by the County in connection with the operation of the
Facilities. Prior to the commencement of the term of the Operation, Management
and Lease Agreement, Casella will advise the County of the number of Employees
that Casella determines is necessary to be provided by the County in order for
Casella to satisfy its operational needs and requirements at the Facilities.
This number of Employees shall be known as the Baseline Staffing Level.
Casella may advise the County at any time that it has determined that
there should be a change in the Baseline Staffing Level, either to a higher or
lower level. The County will have thirty (30) days to meet the new Baseline
Staffing Level. In the
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event that the County is able to meet the new Baseline Staffing Level within
thirty days, Casella shall absorb any labor costs it may have incurred during
that time period which arise out of the change in Baseline Staffing Level. In
the event that the County is unable to meet the new Baseline Staffing Level
within thirty days, the County shall be responsible for any labor costs
associated with its non-compliance. The cost of such noncompliance shall be an
element of any Labor Adjustment, as provided in Section 3B hereof.
The County agrees to consult with Casella in selecting a person to be
employed as the Director, Solid Waste with authority to supervise all activities
at the Facilities. The County will not employ any person as the Director, Solid
Waste unless Casella consents to the person to be employed. Casella will
reimburse the County for the full amount of the Director, Solid Waste's wages
and benefits. This reimbursement shall be in addition to Xxxxxxx'x reimbursement
obligations under Section 3A hereof. Casella shall have the exclusive right to
appoint and hire as its own employees and its own expense any additional
management personnel that it deems necessary to perform its duties under the
Operation, Management and Lease Agreement. The management personnel employed by
Casella shall have the authority to exercise Xxxxxxx'x physical and operational
control of the Facilities, pursuant to the Operation, Management and Lease
Agreement, subject to such oversight by the Director, Solid Waste appointed by
the County as is necessary for the County to satisfy its obligations to the
Employees under the CBA, the Civil Service Rules of Clinton County, and the
Civil Service Law. In the event that the
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County elects not to appoint and/or continue to employ a Director, Solid Waste,
the management personnel employed by Casella shall have full and final
management authority at the Facilities, subject only to the procedures set forth
in paragraphs D and E of this Section.
C. Administration. The County will continue to be responsible for the
administration of all Employees covered by the CBA, including all personnel,
benefit, grievance, and other administrative requirements of the CBA, the Civil
Service Rules of Clinton County and the Civil Service Law. Casella agrees to
abide by the administrative requirements of the CBA with regard to performance,
discipline, termination, and necessary documentation under the CBA to the extent
necessary to allow the County to fulfill its obligations under the CBA. All
performance evaluations required under the CBA shall be prepared by the
Director, Solid Waste, unless the County does not employ a Director, Solid
Waste, in which case performance evaluations shall be prepared by the
supervisory employee designated by Casella.
D. Grievance Procedures. Pursuant to the grievance procedures set forth
in the CBA, the Director, Solid waste will act as the immediate supervisor under
Step 1 of the grievance procedure, unless the County does not employ a Director,
Solid Waste in which case Casella agrees to designate a supervisory employee at
the Facilities to serve as the immediate supervisor under Step 1 of the
grievance procedure. In the event that the grievance procedure ultimately
results in a determination adverse to Xxxxxxx'x exercise of managerial and
operational control of
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the Facilities, Casella may either agree to the determination or may reject it.
In the event that Casella decides to reject the determination, this does not
affect the binding nature of the determination on the County under the CBA, and
the County agrees to seek a resolution of the dispute with Casella. If the
grievance determination imposes a monetary award to the Employee, the financial
obligation will be imposed solely on the County. If the grievance determination
results in an increased cost of operation to Casella, the increased cost will be
a factor in any Labor Adjustment.
E. Discipline and Discharge.
Casella will have discretion to recommend that the County begin
proceedings under CBA Article 29 (or Section 75 of the Civil Service Law if it
applies) for any employee at the Facilities. If the County agrees, in the
exercise of its independent judgment, it will initiate personnel action against
the employee forthwith in accordance with the procedures imposed by the CBA or
by operation of law. If Casella has properly documented the reasons for its
recommendation to discipline or discharge the employee, but the County decides
not to initiate personnel action for the employee or the Article 29 or Section
75 proceedings result in a finding that the action was improper or unjustified
(except to the extent it violates federal, state or local discrimination laws),
and orders the employee reinstated, the County will find other employment for
the employee in compliance with the CBA, Civil Service Rules
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of Clinton County, and the Civil Service law, and Casella will have no
obligation to retain, at its cost, the employee.
F. Strikes.
In the event of a strike by the Employees, the County agrees to
exercise and enforce all of its rights under state law as a public employer to
end the strike through injunction or otherwise. All costs of such legal
proceedings shall be borne by the County. During the pendency of a strike,
Xxxxxxx'x obligations to pay the County for Employee compensation pursuant to
Section 3A hereof shall be suspended and Casella shall be free to use its own
employees as replacement employees to keep the Facilities operating. Any lost
revenue or increased labor expenses to Casella as a result of a strike shall be
calculated as part of the Labor Adjustment, provided in Section 3B hereof.
3. EMPLOYEE COMPENSATION
A. Payment. Casella agrees to pay the County monthly for its costs
under the CBA for compensation and benefits provided to the Employees to be
employed at the Facilities, in the amount of $61,406.00 each month during the
period that the terms of the existing CBA remain in effect. To the extent that
the County's costs for compensation and benefits provided to the Employees that
it hires and designates to
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work at the Facilities exceed this sum, the excess costs shall be borne
exclusively by the County except for those normal monthly payroll adjustments
accruing to the individual due to an administrative change in an individual's
benefits and not caused by across-the-board union compensation adjustments. In
the event that the County reduces or increases the number of Employees it
assigns to work at the Facilities after the term of the current CBA below or
above the Baseline Staffing Level, Casella will be entitled to reduce or
increase the monthly payment by an amount proportionate to the reduction or
increase in force. The Host Fee provided for in the Host Agreement shall be
deemed to constitute, in part, additional compensation to the County for any
incremental costs it may incur in connection with the services of its employees
that is not otherwise compensated by the payment provided for in this Section 3,
and the County and Casella agree that this constitutes fair and adequate
compensation.
B. Labor Adjustment. In each year of the Operation, Management and
Lease Agreement, during the month of January, the County and Casella will meet
to determine (i) whether there has been any increase in the previous year to the
County in labor costs as a result of any labor agreements negotiated between the
County and the collective bargaining representative for the Employees or whether
any such increased labor costs have been agreed by the County with the Employees
to take
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effect in the coming year or (ii) whether there has been a deviation from the
Baseline Staffing Level by the County so that the monthly payment by Casella to
the County under Section 3A hereof is no longer proportionate to the Baseline
Staffing Level, or (iii) whether there have been any increased labor costs to
Casella as a result of a strike by the Employees or as a result of the need by
Casella to retain additional temporary help necessary to perform its functions
at the Facilities because of temporary failure by the County to satisfy the
Baseline Staffing Level.
To the extent that the County has incurred increased labor costs under
a negotiated agreement covering the Employees, Xxxxxxx'x reimbursement
obligation to the County under paragraph A of this Section shall increase by the
same percentage that the County agreed to with the Employees, but in no event
shall it increase in an amount greater than the increase in the CPI. In the
event that the increase is greater than the increase in the CPI, the County
shall absorb that portion of the increase as a necessary cost to the County of
operating the Facilities. To the extent that the number of Employees assigned by
the County to work at the Facilities is below the Baseline Staffing Level,
Casella will be entitled to reduce the monthly payment by an amount
proportionate to the reduction in force. To the extent that Casella has suffered
a loss of revenue or incurred additional expenses as a result of a strike by
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the Employees or by the needs to retain temporary personnel or as a result of a
grievance determination, the County and Casella agree that there shall be a
temporary Labor Adjustment to reflect these additional costs to the extent
necessary to achieve a revenue neutral result to Casella. Any dispute between
the County and Casella in calculating the Labor Adjustment shall be resolved
through arbitration as described in Section 10 hereof.
4. CONTRACTING OF SERVICES
Casella will be free, without restriction, to subcontract all
construction, Closure, and Post-Closure Care associated with the Landfill
contemplated under the Operation, Management and Lease Agreement. The County
represents to Casella that these are services not ordinarily performed by the
Employees and are not subject to the provisions of Article 40 of the CBA.
In addition, Casella will be free, without restrictions, to subcontract
services required to service the Facilities not now exclusively performed by the
bargaining unit. Casella may enter into such contracts with any private
contractor, including but not limited to those contractors currently providing
such services to the County.
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5. NO JOINT EMPLOYERS
It is understood and agreed that neither this Agreement nor the
contemporaneous Operation, Management and Lease Agreement and Host Agreement nor
any other agreement between the County and Casella is intended to or shall ever
be construed to create a joint venture or a joint employment relationship of any
employees by the County and Casella. The Employees shall at all times remain
Employees of the County.
6. REPRESENTATIONS AND WARRANTIES OF THE COUNTY
The County represents and warrants to Casella as follows:
(a) The County is a county in the State of New York with full legal
rights, power and authority to enter into and fully and timely perform its
obligations under this Agreement.
(b) The County is a political subdivision of the State of New York and
is therefore an exempt employer under the National Labor Relations Act.
(c) The County is a public employer subject to regulation under the
Xxxxxx Law and is not regulated as a private employer under the New York State
Labor Law.
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(d) The County is protected by the statutory prohibition against
strikes by public employees under the Xxxxxx Law and it will take all steps
necessary to exercise and enforce that protection.
(e) The position of Director, Solid Waste is a management position that
is not covered by the CBA and is not subject to competitive or non-competitive
examination under the Civil Service Law or Rules and may be appointed by the
County in its sole discretion.
7. REPRESENTATIONS AND WARRANTIES BY CASSELA
Casella represents, warrants and agrees as follows:
(a) Existence of Good Standing.
Casella is, and will continue to be throughout the term hereof, validly
existing as a foreign corporation authorized to do business within the State of
New York.
(b) Approva1 and Authorization.
Casella has full power and authority to enter into this Agreement and
to fully perform all of its duties hereunder. Xxxxxxx'x Board of Directors has
duly authorized the execution and delivery of this Agreement and Xxxxxxx'x
performance of all its duties and obligations contained herein, and this
Agreement constitutes a
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valid and legally binding obligation of Casella, enforceable in accordance with
its terms.
(c) No Litigation or Conflicts.
Casella acknowledges that there is no action, suit, or proceeding
pending or, to the best of Xxxxxxx'x knowledge and belief, threatened against or
affecting Casella, at law or in equity, before or by any federal, state,
municipal or other governmental department, commission, board, bureau, agency or
instrumentality wherein any decision, ruling or finding would adversely affect
the transactions contemplated herein, and that the execution, delivery and
performance of this Agreement by Casella will not result in a violation of or be
in conflict with any ordinance, agreement, instrument, judgment, decree, order,
statute, rule, or government regulation to which Casella is a party or by which
Casella is bound.
8. TERMINATION
This Agreement may be terminated at any time:
(a) By mutual agreement of the parties;
(b) By either party upon termination of the Operation, Management and
Lease Agreement and/or the Host Agreement;
(c) By Casella if Casella is found by any governmental agency or court
to be the employer or joint employer of the Employees;
(d) By Casella if any of the County's warranties and representations
set forth herein are false;
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(e) By Casella if litigation is filed or threatened, or any governmental
authority institutes an investigation or takes action, intended to require
Casella to recognize the CSEA or any other union as the exclusive bargaining
representative of the Employees, or otherwise intended to impose any collective
bargaining obligations on Casella, or in any way leads Casella in its judgment
to conclude that it is reasonably likely that Casella will be required to
recognize any union as the representative of the Employees;
(f) By Casella if Casella exercises the purchase option under the
Operation, Management and Lease Agreement;
(g) By Casella if the County terminates the CBA and does not enter into
any other collective bargaining agreement covering the Employees, or if the
county lawfully eliminates the Employees from coverage under the CBA or any
other collective bargaining agreement.
9. ASSIGNMENT
This Agreement may be assigned by Casella to any entity which is
controlling, controlled by, or under common control with Casella.
10. ARBITRATION
Whenever under any previous provisions of this Agreement it is provided
that a dispute be determined by arbitration, the County and Casella shall within
thirty (30) days after demand by either party to the other for the appointment
of arbitrators, each appoint a person as an arbitrator to determine such
dispute. Each party shall make its respective appointment and notify the other
thereof in writing not later than
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the dates so provided and in default of such appointment or notification by
either party of such date, then on written application by the party not in
default the then presiding judge of the Supreme Court of Clinton County shall
appoint a person to act as their arbitrator for and on behalf of the party
hereto that has so defaulted in making such appointment. If two arbitrators so
appointed shall within fifteen (15) days after the date of notification of
appointment of the one of them who was last appointed be unable to agree upon
the determination of such dispute then said two arbitrators shall appoint one
other fit and impartial person to act as a third arbitrator. If they shall fail
to appoint such third arbitrator within the said period of fifteen (15) days,
then upon written application by either party hereto, such third arbitrator
shall be appointed by said justice and the person so appointed as a third
arbitrator shall serve and act together with the first two arbitrators for the
purpose of said arbitration.
11. CAPTIONS AND HEADINGS
Captions and headings throughout this Agreement are for convenience and
reference only and the words contained therein shall in no way be held or deemed
to define, limit, describe, explain, modify, amplify or add to the
interpretation,
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construction or meaning of any provision or of the scope or intent of this
Agreement nor in any way affect this Agreement.
12. MODIFICATIONS
This Agreement cannot be changed orally, but only by agreement in
writing signed by the party against whom enforcement of the change, modification
or discharge is sought or by its duly authorized agent.
13. DEFAULT/REMEDIES
(a) Breaches. A breach of this Agreement shall mean a material failure
to comply with any of the material provisions of this Agreement.
(b) Events of Default. An event of default by Casella shall mean a
termination of the Operation, Management and Lease Agreement for cause by the
County. An event of default by the County shall mean a termination of the
Operation, Management and Lease Agreement for cause by Casella or a breach of
this Agreement by the County which breach is not cured pursuant to Section 14
hereof. Any alleged breaches by Casella may be enforced by judicial or
administrative order or judgment, as the case may be, but shall not be
considered an event of default and shall not give rights to the County to
terminate this Agreement.
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(c) Remedies for Default.
(i) In the event of a default under this Agreement, the
non-defaulting party shall, upon five (5) days prior written notice to the
defaulting party, have the right, but not the obligation or duty, to cure such
default, including the right to offset the costs of curing the default against
any sums due or which become due to the defaulting party under this Agreement.
In any event, such costs shall be considered additional Lease Payments or
credits under the Operation, Management and Lease Agreement. The non-defaulting
party shall use its best efforts to employ an economically reasonable method of
curing any such default.
(ii) If any event of default occurs and is not cured in the
manner allowed hereunder, then this Agreement shall continue in force and the
non-defaulting party shall have the right to take whatever action at law or in
equity that it deems necessary or desirable to collect any amounts then due or
thereafter to become due under this Agreement or the Operation, Management and
Lease Agreement or to enforce performance of any covenant or obligation of the
breaching party under this Agreement.
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14. RIGHT TO CURE BREACH
Each party shall, in the case of any breach of its obligations under
this Agreement, either:
(a) Cure the breach within ninety (90) days of receipt of written
notice from the non-breaching party or;
(b) Continuously demonstrate within such cure period that it is
actively and continuously pursuing a course of action which can reasonably be
expected to lead to a curing of the breach (the ninety (90) day period will be
extended for so long as the breaching party is actively and continuously
pursuing such a course) provided, however, that in the event of the failure of
any party to this Agreement to pay the other party or parties any sum or due
amount required to be paid when due hereunder, cure shall consist of payment
which will be made within fifteen (15) days of written demand from the
non-breaching party together with interest accruing at the legal rate from the
date the payment was due.
15. NOTICES
All notices or other communications to be given hereunder shall be in
writing and may be given by personal delivery or by registered or certified
United States mail, return receipt requested, properly addressed as follows:
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To the County: Administrator
County of Clinton
000 Xxxxxxxx Xxxxxx
Xxxxxxxxxxx, Xxx Xxxx 00000
Copy to: Xxxxxxx X. Xxxxxx
To Casella: Xxxxxxx Waste Systems, Inc.
Xxx 000
Xxxxxxx, Xxxxxxx 00000
Attention: Xxxxx Xxxxxx
Copy to: Xxxxxx Xxxxxxxxxx, Esq.
00 Xxx Xxxxxx
Xxxxxx, Xxx Xxxx 00000
16. FORCE MAJEURE
In the event that the County or Casella is rendered unable, wholly or
in part, by an event of Force Majeure to carry out any of the obligations under
this Agreement, then, in addition to the other remedies provided in this
Agreement, the obligations of the respective party may be suspended during the
continuation of the event of Force Majeure, but for no longer a period. At any
time that either party intends to rely upon an event of Force Majeure to suspend
obligations as provided in this section, the party shall notify the other party
to this Agreement as soon as reasonably practical describing in reasonable
detail the circumstances of the event of Force Majeure. Notice shall again be
given when the effect of the event of Force Majeure has ceased.
17. CONSTRUCTION
Words importing the singular number shall include the plural in each
case and vice versa, and words importing persons shall include firms,
corporations, or other
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entities. The terms "herein," "herein," "hereunder," "hereto" and any similar
terms, shall refer to this Agreement. This Agreement is the result of joint
negotiations and authorship and no part of this Agreement shall be construed
as the product of any one of the parties hereto.
18. INDEMNIFICATION
The County will indemnify Casella for any costs, damages, or expenses,
including attorney fees, incurred by Casella in the event that the CSEA, any
County employee, or any other union brings any action or proceeding challenging
the enforceability of this Agreement or the Operation, Management and Lease
Agreement or Host Agreement on the grounds that one or more of them violates any
provision of the CBA or any state or federal labor law or regulation, including
but not limited to any claim that the County failed to bargain in good faith
with the Employees or their bargaining representative before entering into these
agreements, or brings any other action or proceeding against Casella arising out
of the relationship between Casella and the County ("Labor Litigation"). The
County also agrees not to bring any action or proceeding, including but not
limited to a third party claim, against Casella as a result of any Labor
Litigation or any claim arising out of the County's obligation under the CBA to
indemnify one of its Employees.
19. INSURANCE
The County will continue to maintain any and all insurance coverage
regarding its obligations to its Employees in an amount and form consistent with
its current practices and that is sufficient to satisfy its obligations to
Casella under this
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Agreement and to its Employees under the CBA and any applicable law or
regulation.
20. ENTIRE AGREEMENT
This Agreement constitutes the entire Agreement between the County and
Casella, and supersedes all prior negotiations, representations, understandings
and agreements, either written or oral, between such parties with respect to the
subject matter hereof. The parties acknowledge and agree that this Agreement is
entered into in contemplation of the contemporaneous execution of the Host
Agreement, and the Operation, Management and Lease Agreement, and these
agreements shall be read and interpreted together. No changes, amendments,
alterations, or modifications to this Agreement shall be effective unless in
writing and signed by the parties hereto.
21. COUNTERPARTS
This Agreement may be executed in two (2) counterparts, each of which
will be considered an original.
22. GOVERNING LAW
This Agreement shall be governed by and construed in accordance with
the Laws of the State of New York.
23. BINDING EFFECT
This Agreement shall be binding upon and inure to the benefit of the
parties hereto and Casella and their respective successors and/or assigns.
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24. AUTHORITY OF PARTIES
The individuals who have executed this Agreement on behalf of the
respective parties expressly represent and warrant that they are authorized to
sign on behalf of such entities for the purpose of duly binding such entities to
this Agreement.
IN WITNESS WHEREOF, the parties have placed their signatures and seals.
COUNTY:
CLINTON COUNTY, NEW YORK
By:_________________________________
Title:_______________________________
Attest:______________________________
Date of Execution:___________________
Title:_______________________________ (County Seal)
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CASELLA
XXXXXXX WASTE SYSTEMS, INC.
By:_________________________________
Title:_______________________________
Attest:______________________________
Date of Execution:___________________
Title:_______________________________ (County Seal)
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