CLARK FREEPORT – The bid to forestall an impending massive garbage crisis in the Central and Northern Luzon regions has gone to court.
Metro Clark Waste Management Corp. (MCWMC), the operator and lessee of the Kalangitan Sanitary Landfill in Capas, Tarlac, has filed a case at an Angeles City Regional Trial Court for “Reformation of Instrument, Fixing of Period, Specific Performance and Damages” against the Bases Conversion and Development Authority and the Clark Development Corp., asserting that that the company’s contract of lease and services is not expiring in October this year, as the two state-run agencies had announced.
“It is neither for the BCDA nor CDC to decide what happens now. We leave it all to the courts to resolve this issue once and for all,” said Vicky Gaetos, MCWMC executive vice-president, at the Quest for News forum of the Central Luzon Media Association-Pampanga Chapter held at the Quest Plus Conference Center here over the weekend.
Gaetos took exception to the legal opinion of the Office of the Government Corporate Counsel, proffered by the BCDA and CDC, that there is no provision in the contract between CDC and MCWMC for a renewal or extension once it expires this October; and that the contract “cannot be extended even on an ad interim basis as such extension is considered a material deviation, which would violate the Build-Operate-Transfer (BOT) Law.”
“The BOT Law is nowhere mentioned in our contract,” said Gaetos. “The fact is, our contract with CDC signed in October 1999 has two components: a lease agreement and a service agreement.”
She clarified: “The lease agreement grants us use of the 100-hectares for an integrated waste management center, as cited [Article II, Section 1] in the contract].
The service agreement, she said, pertains to the waste management services MCWMC provides the Clark Special Economic Zone, specifically giving MCWCM the exclusive right to dump in the leased 100-hectary property.
Section 2, Article IX of the contract states: ‘CDC shall grant the exclusive right to the Consortium [MCWMC] subject to pertinent laws, rules and regulations to accept all waste on the Zone and to run the integrated waste management center. The Consortium shall be the sole and exclusive recipient of solid waste dumping at the landfill site within a period of 25 years from the signing hereof, unless this Contract is sooner terminated.”
“Clearly, only the exclusivity clause in the service agreement is set to expire in October. Not our lease agreement,” she averred.
Gaetos said they filed the case so that CDC will accurately reflect the 50-year lease, as was originally agreed upon by the parties at the time of the signing in 1999. and which is consistent with RA 7652 (Investors Lease Act).
“We are protected by law,” Gaetos declared, citing, along with RA 7652, Executive Order 429 signed by President Fidel V. Ramos in 1997.
RA 7652 was enacted in 1993 allowing foreign investors to enter into long-term leases of land for productive investments. EO 429 granted the same privilege to local investors. It allows investors to lease lands for a period not exceeding 50 years, with option for one time renewal of 25 years.
“As they have not been responsive to our request for years, we have filed for Reformation of Instrument, so that the contract accurately reflect the intention of the parties, and Fixing of Period, so the court can determine what is the correct period for the lease,” she stressed.
The German consortium that made the investment to construct the Integrated Waste Management Center, was attracted by RA 7652 and invested on that basis at the then Clark Special Economic Zone, with the understanding that they would get the 50-year lease.
“Both parties, ourselves and CDC at the time the contract was signed, were in understanding that this was a long-term lease that gave us up to 50 years,” said Engineer Holger Holst, MCWM chairman and technical director.
“In fact, a detailed BCDA Master Plan from 2017 clearly shows the Kalangitan landfill present there for multiple phases. Section 4.9 entitled ‘Solid Waste Management’ clearly shows that the facility is there until the year 2065,” said Holst.
“On our part at MCWM, our continued focus is simply to service the waste management needs of all our customers,” said Gaetos. “We hope that we can come to an amicable solution to this problem, which will affect so many millions of residents in Region 3 and Pangasinan, even up to Baguio. We leave it to our legal team, and ultimately to the Courts to decide what happens next.”
“In the meantime, we’ll continue to work and serve our customers and communities” assured Gaetos. Punto News Team
