HomeMy WebLinkAbout2016-01-8345477
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ORDINANCE NO. 2016 - 1 - 8345
AN ORDINANCE OF THE CITY OF PADUCAH, KENTUCKY,
AUTHORIZING AND APPROVING AN AGREEMENT FOR TRANSFER, TRANSPORT
AND DISPOSAL OF MUNICIPAL SOLID WASTE BETWEEN THE CITY OF PADUCAH
AND FREEDOM WASTE SERVICE, LLC,; AND AUTHORIZING THE EXECUTION OF
THE AGREEMENT
WHEREAS, the City of Paducah's (the "City") Solid Waste Division is
responsible for the collection of residential and commercial waste within the City
limits of Paducah; and
WHEREAS, Freedom' Waste Service, LLC, is. a Kentucky limited liability
company ( "Freedom"), capable of providing long-term transfer station services, transport
and disposal services and a safe and accessible citizen drop-off area for the deposition of
recyclable products; and
WHEREAS, the City desires to contract with Freedom for long-term
transfer station services, the transport and disposal of all municipal solid waste, and a
safe and accessible citizen drop-off area for the deposition of recyclable products; and
WHEREAS, the City and Freedom have come to an agreement regarding
these services and have agreed to the terms and conditions of same/
NOW THEREFORE, BE IT ORDAINED BY THE CITY COMMISSION OF
THE CITY OF PADUCAH, KENTUCKY, AS FOLLOWS:
SECTIONI. Recitals and Authorization. The City hereby authorizes and
approves the Agreement for Transfer, Transport and Disposal of Municipal Solid Waste between
the City and Freedom (the "Agreement"), in substantially the same form attached hereto as
Exhibit A and made a part hereof. It is further determined that it is necessary and desirable and in
the best interest of the City to enter into the Agreement for the purposes therein specified. The
Mayor of the City is hereby authorized to execute the Agreement, and all other documents and
instruments of any kind to be executed or delivered in connection with the Agreement, with such
changes in the Agreement not inconsistent with this Ordinance and not substantially adverse to
the City as may be approved by the official executing the same on behalf of the City or the City
Manager. The approval of such changes, and that such are not substantially adverse to the City,
shall be conclusively evidenced by the execution of the Agreement by the authorized official.
SECTION 2. Severability. If any section, paragraph or provision of this
Ordinance shall be held to be invalid or unenforceable for any reason, the invalidity or
unenforceability of such section, paragraph or provision shall not affect any of the remaining
provisions of this Ordinance.
SECTION 3. Compliance With Open Meetings Laws. The City Commission
hereby finds and determines that all formal actions relative to the adoption of this Ordinance
were taken in an open meeting of this City Commission, and that all deliberations of this City
Commission and of its committees, if any, which resulted in formal action, were in meetings
open to the public, in full compliance with applicable legal requirements.
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SECTION 4. Conflicts. All ordinances, resolutions, orders or parts thereof in
conflict with the provisions of this Ordinance are, to the extent of such conflict, hereby repealed
and the provisions of this Ordinance shall prevail and be given effect.
SECTION 5. Effective Date. This Ordinance shall be read on two separate days
and will become effective upon summary publication pursuant to KRS Chapter 424.
ATTEST:
Introduced by the Board of Commissioners, January 12, 2016
Adopted by the Board of Commissioners, January 19, 201
Recorded by Tammara S. Sanderson, City Clerk, Januar 016
Published by The Paducah Sun, January 21, 2016
\ord\agree-solid waste services -Freedom Waste 2016
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EXHIBIT A TO THE ORDINANCE
AGREEMENT FOR TRANSFER, TRANSPORT
AND DISPOSAL OF MUNICIPAL SOLID WASTE
See attachment
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193922ver5clean
AGREEMENT FOR TRANSFER. TRANSPORT
AND DISPOSAL OF MUNICIPAL SOLID WASTE
THIS AGREEMENT ("Agreement") made and entered into this day of January
2 0 16 , by and between the CITY OF PADUCAH, KENTUCKY, a municipal corporation and
body politic of the Commonwealth of Kentucky, P.O. Box 2267, Paducah, Kentucky 42002-
2267, (hereinafter referred to as the "City") and FREEDOM WASTE SERVICE, LLC, a
Kentucky limited liability company, with local offices located at 3426 State Route 45
South, Mayfield, Kentucky 42066 (hereinafter referred to as "Contractor");
WITNESSETH:
WHEREAS, the City's Solid Waste Division is responsible for the collection of
residential and commercial waste within the City limits of Paducah; and
WHEREAS, the City desires to contract for long-term transfer station services,
the transport and disposal of all municipal solid waste, and a safe and accessible citizen
drop-off area for the deposition of recyclable products; and
WHEREAS, by Request for Proposals for Solid Waste Receipt, Transfer, Haul &
Disposal, issued September 17, 2015, the City sought proposals to secure long-term
transfer station services, transport and disposal services and a safe and accessible citizen drop-off
area for the deposition of recyclable products; and
WHEREAS, after evaluating the proposals received, the City desires to contract with
Contractor, as an independent contractor, in accordance with the terms and conditions of this
Agreement.
NOW, THEREFORE, in consideration of the mutual covenants set forth herein and for
the consideration hereinafter set forth, the City and Contractor agree as follows:
SECTION 1: DEFINITIONS:
For the purposes of this Agreement, the following terms shall apply:
1.1. Acceptable Recyclable Material: Shall mean paper, plastic, aluminum, tin,
steel, and cardboard.
1.2. Applicable Law: Shall mean (1) any federal, state or local law, code or
regulation; (2) any formally adopted and generally applicable rule, requirement,
determination, standard, policy, implementation schedule or other order of any Governmental
Body having appropriate jurisdiction; (3) any established interpretation of law or regulation
utilized by an appropriate Governmental Body if such interpretation is documented by such
Governmental Body and both generally applicable and publicly available; and (4) Governmental
Approvals, in each case having the force of law and applicable from time to time to the
Transfer Station, the Disposal Facility, and the Backup Disposal Facility, the services provided
by Contractor under this Agreement, or any other transaction or matter contemplated in this
Agreement (including any of the foregoing which pertain to waste management, waste
transportation, waste disposal, health, safety, fire, environmental protection, labor relations,
building codes, the payment of prevailing or minimum wages and non-discrimination), now in
effect, or hereafter enacted during the Contract Term.
1.3. Approved Plans: Has the meaning set forth in Section 2.1
1.4. Backup Disposal Facility: A landfill or similar facility approved by the City,
operated in accordance with all Applicable Laws for handling Solid Waste, to which the
Contractor transports Solid Waste from the Transfer Station for final disposal should the
Disposal Facility be unable to receive Solid Waste for any reason. In order for the landfill or
similar facility to be approved by the City the owner/operator shall maintain, at its sole expense,
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Owned and Non -Owned Disposal Site Pollution Legal Liability and
Remediation/Cleanup with limits of $1,000,000 per claim during the Contract Term..
1.5. Billing Month: Means each calendar month during the Contract Term,
commencing the calendar month during which the Service Date occurs.
1.6. C&D Waste: Means wastes resulting from construction, remodeling, repair or
demolition operations of structures and from road building.
1.7. Citizen Drop-off Center: A safe and adequately equipped facility for citizens
to directly dispose of Acceptable Recyclable Material at the Transfer Station.
1.8. Contract Term: Has the meaning set forth in Section 5.
1.9. Contract Year: The first Contract Year shall be the period beginning on the
Service Date and ending on the following July 31 st. Thereafter, a Contract Year shall be the
period beginning on August 1 st and ending on the following July 31 st.
1.10. Contractor's Proposal: Written terms, conditions, and costs for performing the
work and submitted by Contractor on October 15, 2015 to the City in response to the City's
RFP.
1.11. City -Designated Personnel: The City Manager and other City employees or
agents designated by the City Manager.
1.12. Construction Completion: Has the meaning set forth in Section 2.2.1.
1.13. Consumer Price Index or CPI: The U.S. Department of Labor, Bureau of
Labor Statistics, Consumer Price Index for the South Region, All Items, All Urban
Consumers (CPI -U), Not Seasonally Adjusted, and reported in the CPI Detailed Report
Series Id: CUUR0300SA0.
1.14. Consumer Price Index Adjustment Factor or CPI Adjustment Factor: The
pricing adjustment factor to be applied, when used with respect to a particular Contract Year,
equal to the quotient derived by dividing (a) the average of the 12 monthly CPI values in
the Contract Year preceding the Contract Year with respect to which a calculation is
made, divided by (b) the average of the 12 monthly CPI values from January 2015
through and including December 2015." The language following (b) in the example
definition would result in the average 2015 CPI being used as the base upon which all
future adjustments will be made (as opposed to a year -over -year change in CPI).
1.15. Disposal Facility: The City approves West Kentucky Landfill located
in Graves County, Kentucky, a landfill, owned and operated by Jones Sanitation
Holding, LLC, a Kentucky limited liability company (an affiliated company of the
Contractor) to which the Contractor s h a 11 transport Solid Waste from the Transfer Station
for final disposal; provided, however, the owner/operator shall maintain, at its sole expense,
Owned and Non -Owned Disposal Site Pollution Legal Liability and
Remediation/Cleanup with limits of $1,000,000 per claim during the Contract Term. The
owner/operator shall operate the Disposal Facility in accordance with Applicable L a
for handling Solid Waste.
1.16. Effective Date: The date this Agreement is executed and delivered by the parties
hereto.
1.17. Emergency Solid Waste Processing: An unexpected, serious occurrence or
situation urgently requiring prompt action by the Contractor, such as but not limited to pending
or post storm event processing of Solid Waste at the Transfer Station as a result of increased
curbside collections.
1.18. Fuel Adjustment Factor: The pricing adjustment factor to be applied,
when used with respect to a particular Contract Year, equal to the quotient derived by
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dividing (a) the average of the 12 monthly EIA Diesel All Types Prices — Midwest
(PADD2) (the "EIA Diesel Prices"), as reported by the U.S. Energy Information
Administration, values in the Contract Year preceding the Contract Year with respect to
which a calculation is made, divided by (b) the average of the 12 monthly EIA Diesel
Prices values from January 2015 through and including December 2015.
1. 19. Governmental Approval: All orders of approval, permits, licenses,
authorizations, consents, certifications, exemptions, rulings, entitlements and approvals issues
by a Governmental Body of whatever kind and however described which are required under
Applicable Law to be obtained or maintained by any person with respect to the Contractor's
obligations under this Agreement.
1.20. Governmental Body or Governmental Bodies: A n y federal, state,
regional or local legislative, executive, judicial or other governmental board, agency,
authority, commission, administration, court or other body, or any official thereof having
jurisdiction.
1.21. Moderate Risk Waste: means any waste that exhibits any of the properties of
hazardous waste but is exempt from regulation under Applicable Law solely because the waste
is generated in quantities below the threshold for regulation.
1.22. Request for Proposals or RFP: Means the Request for Proposals for Transfer
Station Receipt, Transfer, Haul and Disposal of Municipal Solid Waste dated September 17,
2015, and any Addenda or amendments thereto.
1.23. Scales Facility: The scale house and weighing truck scales operated,
maintained, repaired, and replaced by the Contractor and located at the Transfer Station for
weighing Solid Waste deliveries. The Contractor shall utilize scales approved and certified by
the Commonwealth of Kentucky.
1.24. Service Date: Has the meaning set forth in Section 2.2.1.
1.25. Service Fee: Has the meaning set forth in Section 4.1.
1.26. Solid Waste: Means all municipal solid waste such as garbage, refuse, rubbish
and other materials and substances discarded as being spent, useless, worthless or in excess to
the generator thereof at the time of such discard or rejection and which are normally disposed of
by or collected from residential (single family and multi -family), commercial, industrial,
governmental and institutional establishments (including small quantities of hazardous material
or medical waste but only to the extent permitted by Applicable Law), which are acceptable
now or in the future at the Transfer Stations under Applicable Law. Solid Waste includes
Acceptable Recyclable Material, Moderate Risk Waste, White Goods, and C&D Waste.
1.27. Ton: shall mean 2,000 pounds.
1.28. Transfer Station: The Contractor's .facility having all Governmental Approvals
required by Applicable Law located on the Transfer Station Site, where Solid Waste is
deposited from collection vehicles and transferred to waste hauling vehicles to be transported to
the Disposal Facility, including without limitation the Citizen Drop-off Center and the Scales
Facility.
1.29. Transfer Station Site: Means the parcel of land, consisting of 5 acres, located
off of Potter Lane within Paducah, McCracken County, Kentucky, on which the Transfer
Station is to be located.
1.30. Unacceptable Waste: Shall mean "hazardous substance" as defined under
the Comprehensive Environmental Response, Compensation, and Liability Act, 42
U.S.C. § 9601 et seq. and "hazardous waste" as defined under the Resource
Conservation and Recovery Act, 42 U.S.C. § 6901 et seq.
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1.3 1. Uncontrollable Circumstance: Any cause beyond the reasonable control of
the party relying thereon as justification for not performing an obligation or complying with
any condition required of such party under this Agreement, and that materially interferes with
or materially increases the cost of performing its obligations hereunder (other than payment
obligations), to the extent that such act, event or condition is not the result of the willful or
negligent act, error or omission, failure to exercise reasonable diligence, or breach of this
Agreement on the part of such party. Subject to the foregoing, Uncontrollable Circumstances
may include without limitation the following: acts of God, war, riot, fire, explosion, wind
storm, flood, earthquakes, or action by a Governmental Body not party to this
Agreement. Uncontrollable Circumstances shall not include without limitation any act,
event, or circumstance that would not have occurred if the affected party had complied
with its obligations hereunder; changes in interest rates, inflation rates, wage rates,
insurance costs, currency values, labor availability, exchange rates or other economic
conditions; changes in the financial condition of the City, the Contractor, any
subcontractor, any of the Contractor's affiliates or any other person in the performance
of this Agreement; weather conditions normal for the geographic region of the City;
strikes, labor disputes, work slowdowns, work stoppages, boycotts or other similar labor
disruptions by employees; or equipment failure.
1.32. White Goods: Means residential appliances, including water heaters, washers,
water tanks, dryers, stoves, refrigerators, and electronics.
SECTION 2: SCOPE OF SERVICES - RESPONSIBILITIES OF CONTRA TOR
The Contractor shall furnish the following services and during the Contract Term shall be
responsible for the following:
2.1. The Contractor shall, in accordance with this Agreement, design, construct, operate,
maintain, and replace, at its sole cost and expense, a Transfer Station on the Transfer Station
Site, which shall include without limitation a Citizen Drop-off Center and Scales Facility. The
Transfer Station shall be designed, constructed, operated, maintained, repaired and replaced by
the Contractor in order to fully satisfy the scope of services and its responsibilities under this
Agreement and in accordance with the site plan, specifications, drawings, and other details
approved by the Contractor and the City, all of which are attached hereto and made a part hereof
as Schedule 1(the "Approved Plans"), which Approved Plans shall include without limitation
the location and traffic plan associated with the Citizens Drop-off Center to ensure
safety by separating citizens and collection vehicles routes of travel while on the
Transfer Station Site. At all times during the Contract Term, the Contractor shall own or
otherwise have control of the Transfer Station. The Transfer Station shall at all times during the
Contract Term have and comply with all Governmental Approvals in order to permit it to be
used for the purposes contemplated by this Agreement in compliance with all Applicable Law.
2.2. The construction of the Transfer Station shall be as follows:
2.2.1. The construction schedule shall be as set forth in the Contractor's Proposal,
except that the Construction Completion Date for the Transfer Station shall be mutually agreed
upon but shall be no later than August 1, 2016. The Construction Completion Date shall be
the date that the Transfer Station, built in compliance with the Approved Plans and
having all Governmental Approvals, is open and an available for the Contractor to begin
accepting deliveries of Solid Waste and performing its obligations related thereto
hereunder and shall also constitute the "Service Date".
2.2.2. If the Service Date does not occur on or before August 1, 2016 (as
extended only due to the occurrence of an Uncontrollable Circumstances), the
Contractor shall pay the City delay liquidated damages in the amount of $1,000.00 per
day for each day of such delay. The City may invoice the Contractor for such liquidated
damages on a weekly basis, and such invoices will be due and payable by the Contractor
within ten days following receipt of the invoice. The failure of the Contractor to have
achieved the Service Date by October 1, 2016 shall constitute a material default by the
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Contractor and the City, by notice to the Contractor, may (notwithstanding anything to
the contrary in Section 18) terminate this Agreement without any requirement of having given
notice previously or of providing any further cure opportunity.
2.2.3. The Contractor shall meet all Applicable Law in respect to the final design,
construction, and Governmental Approvals of the Transfer Station.
2.2.4. The Contractor is solely responsible for the financing and payment of all costs of
the design and construction of the Transfer Station and construction of ingress and egress,
sitework and utilities to the Transfer Station, including without limitation roads and
landscaping.
2.2.5. The Citizens Drop-off Center shall have paved or concrete surfaces for all
container and traffic areas to minimize dust and debris accumulation and shall be maintained in
a clean and orderly manner at all times, and shall be adequately lit during times of extended
hours of operation. The City shall have approval rights with respect to the location and traffic
plan associated with the Citizens Drop-off Center to ensure safety by separating citizens and
collection vehicles routes of travel while on the Transfer Station Site.
2.3. The Contractor shall furnish at its own cost and expense all labor, materials,
supplies and equipment needed to operate and maintain the Transfer Station for the receipt of
Solid Waste in accordance with Applicable Law.
2.4. All Solid Waste delivered by City or City residents and businesses to the Transfer
Station operated by Contractor under the terms of this Agreement shall be received, safely
managed, and loaded into transfer trailers by the Contractor for hauling and disposal at the
Disposal Facility or Backup Disposal Facility on the same day such Solid Waste is delivered to
the Transfer Station. Except as provided in Section 2.5, all Solid Waste shall be removed from
the Transfer Station each day. The Contractor shall provide for the proper hauling and disposal
of all Solid Waste delivered by the City or its residents to the Disposal Facility and the Backup
Disposal Facility, in accordance with all terms and conditions of this Agreement. The
Contractor shall only dispose of Solid Waste at the Disposal Facility or Backup Disposal
Facility, and at no other disposal location without the prior written consent of the City.
2.5. In the event that the Contractor fails to comply with its obligations to accept all
Solid Waste (unless failure is due to the occurrence of a Uncontrollable Circumstances) or fails
to dispose of Solid Waste at only a City approved disposal facility), the Contractor shall pay the
City liquidated damages in the amount of (i) either $50.00 per ton of rejected Solid Waste or all
out-of-pocket costs incurred by the City in disposing of the rejected Solid Waste at another
transfer station or disposal site, including without limitation service fees and transport costs,
whichever is more, or (ii) $100.00 per ton of improperly disposed of Solid Waste. The City
may invoice the Contractor for such liquidated damages on a weekly basis, and such invoices
will be due and payable by the Contractor within ten days following receipt of the invoice.
Except to the extent excused due to an Uncontrollable Circumstance, the failure or refusal of
the Contractor to accept, process and dispose of Solid Waste during normal operating hours (i)
for a 24-hour period (other than Holidays) at the Transfer Station, or (ii) for a period of
seven consecutive days (excluding Holidays) at the Transfer Station shall constitute a material
default by the Contractor and the City may (notwithstanding anything to the contrary in Section
18) terminate this Agreement without any requirement of having given notice previously or of
providing any further cure opportunity.
2.6. The Contractor shall be responsible for the weighing, transportation, marketing and
disposal of segregated Recyclable Materials, Moderate Risk Waste and White Goods delivered
to and accepted at the Transfer Station (including the Citizens Drop-off Center) from the
Transfer Station to appropriate City -approved disposal sites for disposition, including end-use
markets, in accordance with Applicable Law. Prior to disposal or recycling of any White
Goods, the Contractor shall remove refrigerants and other hazardous components from all such
White Goods accepted at the Transfer Station in accordance with the Applicable Law. The
Contractor acknowledges that the Service Fee paid in accordance with Section 4 includes all
compensation to which the Contractor is entitled on account of all transportation and disposal
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costs. The Contractor may retain the revenue generated from the marketing of recovered
Recyclable Materials, Moderate Risk Waste and White Goods, however, the Contractor is to
provide to the City written verification reports as to the quantities of the Acceptable Recyclable
Material and income and expense statements for record keeping purposes.
2.7. The Contractor shall schedule its employees in such a manner so as to avoid delays
and back-ups in receiving S o 1 i d Waste at the Transfer Station. At least two (2) employees
shall be available at the Transfer Station during operating hours, which shall be as set forth
below:
2.7.1. Monday through Friday 7:00 a.m. to 4:00 p.m.
2.7.2. Saturday 7:00 a.m. to Noonl.
2.7.3. The Contractor's offices shall be opened from 8 a.m. to 5 p.m. Monday through
Friday to handle customer service questions and problems and an answering service, in direct
contact with the managers and owners of the Contractor, shall handle after normal operating
hour questions and problems.
2.8. The Transfer Station shall be open on all days, except for Sundays and the
following holidays unless otherwise agreed upon by the City and Contractor:
2.8.1. New Year's Day
2.8.2. Thanksgiving Day
2.8.3. Christmas Day
2.9. At the Scales Facility, the Contractor shall weigh all vehicles delivering Solid
Waste to the Transfer Station by the City before and after the transfer of Solid Waste into the
transfer trailers. At the Scales Facility, the Contractor shall also weigh Recyclable Materials,
Moderate Risk Waste and White Goods delivered to and accepted at the Transfer Station
(including the Citizens Drop-off Center). Such weighing method shall be approved by
the City prior to implementation. The City shall have the right to test the accuracy of scales at
reasonable times and without unreasonable interference with operations of the Transfer Facility.
In the event the weighing scales become inoperable, the Contractor shall repair and/or replace
the scales within a commercially reasonable time, not to exceed seven (7) calendar days. During
scales breakdown, the City shall provide a reasonable estimate by (a) weighing the
collection vehicle at a City facility, (b) using the historical records of the weight of Solid
Waste delivered to the Transfer Station for a comparable period during the preceding
Contract Year, or (c) any other reasonable means that the City deems appropriate.
2.10. The Contractor shall maintain daily records of the number of Tons of Solid
Waste delivered by the City to the Transfer Station and the number of Tons of S o 1 i d
Waste transported from the Transfer Station to the Disposal Facility, indicating, in each case
and to the extent practicable, the date and time of arrival or departure of each City vehicle
transporting such waste, with appropriate identification of each vehicle. ,
2.11. The Contractor shall assist City with Emergency Solid Waste Processing
of Acceptable Waste prior to and after storm events or other emergencies within the normal
scope of services defined in this section.
2.12. Prior to the Service Date, the Contractor shall own or have right to use the
Backup Disposal Facility and shall develop an emergency backup plan, acceptable to the City, in
the event the Disposal Facility is unavailable for disposal at any time during the Contract Term.
The Service Fees set forth in Section 4 apply to the Backup Disposal Facility. Also, prior to the
Service Date, the Contractor shall notify the City in writing of the location of the Backup
Disposal Facility. In the event the location of the Backup Disposal Facility is changed, the
1 All times described in this Agreement shall be Central Standard Time.
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Contractor shall provide the City with written notice of the new location at least thirty (30) days
prior to such the implementation of such change.
2.13. The Contractor shall furnish, at its sole cost and expense, all personnel, tractors,
trailers, licenses, Governmental Approvals, equipment and other requirements necessary to
transport all Solid Waste received at the Transfer Station to the Disposal Facility or Backup
Disposal Facility. The Contractor shall provide sufficient number of trailers to transport all Solid
Waste, with the capacity to transport the Acceptable Recyclable Material (in addition to any
other waste it is obligated or may be obligated to transport) for the Contract Term.
2.14. The Contractor shall provide for the receipt, processing and sale of all Acceptable
Recyclable Material delivered to the Citizens Drop-off Center by the City or its residents. The
Contractor shall, at its sole cost and expense, operate the Citizens Drop-off Center with
its own staff, (ii) furnish and maintain roll -off or other containers for collection of
Acceptable Recyclable Material, and (iii) arrange for the removal and disposal of such
Acceptable Recyclable Material."
2.15. The Contractor shall provide for the control of insects, rodents and other vectors,
and shall employ whatever means necessary to minimize the generation and migration of
nuisance litter and debris throughout the Transfer Stationon a daily basis.
2.16. The services to be performed under this Agreement by the Contractor shall be
performed under all weather conditions. Further, in the event of inclement weather, the
Contractor shall be responsible for taking measures necessary (e.g. plowing) to allow for
ingress and egress into and within the Transfer Station Site.
SECTION 3: RESPONSIBILITIES OF THE CITY
3.1. The City shall deliver all Solid Waste collected by or on behalf of the City to the
Transfer Station during the Contract Term.
3.2. The City makes no representation or guarantee as to the actual quantity or type of
Solid Waste to be delivered to the Transfer Station pursuant to this Agreement. The City shall
not be liable in damages for any failure to deliver, or cause to be delivered, Solid Waste to the
Transfer Station.
3.3 The City shall pay the Service Fee and any other amounts due the Contractor
in accordance with the terms and conditions of this Agreement.
3.4 Nothing in this Agreement will be deemed to restrict the right of the City to
practice source separation for the recovery, recycling or composting of waste nor the
right of the City to conduct, sponsor, encourage or require such source separation. The
City will not be responsible or liable for any reduction in the amount of Solid Waste
generated in the City and delivered to the Transfer Station by the City, which may result
from any such source separation or recycling program.
SECTION 4: CONSIDERATION FOR TRANSFER STATION OPERATION
4.1 As the sole compensation for the Contractor's performance of the services
described in Section 2 of this Agreement, beginning on the Service Date the City shall
pay the Contractor a service fee in accordance with this Section 4 (the "Service Fee").
For each Billing Month, the City shall pay the Contractor the Service Fee in an amount
equal to the sum of (a) the amount determined pursuant to Section 4. 1.1 for the amount
of Solid Waste (other than Acceptable Recyclable Material) delivered by the City to the
Transfer Station during such Billing Month, and (b) the amount determined pursuant to
Section 4.1.2 for the amount of Acceptable Recyclable Material delivered to the Citizen
Drop-off Center during such Billing Month.
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4.1.1. The City shall pay the Contractor a base unit fee of $34.95 per Ton to receive,
transfer, process, transport and dispose of all Solid Waste delivered to the Transfer Station by
the City. The foregoing amount shall be in effect through July 31, 2017 and shall thereafter be
adjusted at the start of each Contract Year as described in Section 4.2.
4.1.2. The City shall pay the Contractor a base unit fee of $40.00 per Ton to receive,
transfer, process, transport and sell all Acceptable Recyclable Material delivered to the Citizen
Drop-off Center. The foregoing amount shall be in effect through July 31, 2017 and shall
thereafter be adjusted at the start of each Contract Year as described in Section 4.2.
4.2. The base unit fees described above in Sections 4. 1.1 and 4.1.2 shall be adjusted
annually as follows:
4.2.1. 70 % of base unit fees shall be adjusted on August 1, 2017 and on August 1 st of
each Contract Year thereafter during the Contract Term by multiplying each of the base unit
fees specified in Sections 4. 1.1 and 4.1.2 by the CPI Adjustment Factor.
4.2.2. 30 % of base unit fees shall be adjusted on August 1, 2017 and on August 1 st of
each Contract Year thereafter during the Contract Term by multiplying each of the base unit
Service Fees specified in Sections 4. 1.1 and 4.1.2 by the Fuel Adjustment Factor
4.2.3. For each Contract Year, the aggregate annual increase or decrease to the
base unit Service Fees specified in Sections 4. 1.1 and 4.1.2 calculated under this
provision shall be subject to a maximum increase and a maximum decrease equal to six
percent (6%) greater or lower, as applicable, of the base unit Service Fees in effect
during the prior Contract Year."
4.3. The Contractor shall submit a single invoice to the City for each Billing Month no
later than the fifteenth day following the conclusion of such Billing Month. This monthly
invoice will be paid by the City within thirty (30) days of the receipt of an approvable invoice
for the Billing Month. The invoice shall be accompanied by an itemization and summary of the
Tons of all Solid Waste delivered by the City and Acceptable Recyclable Material delivered by
residents of the City to the Transfer Station and the Citizen Drop-off Center during the Billing
Month.
4.4. Except as otherwise provided herein for Acceptable Recyclable Material delivered
to the Citizen Drop-off Center (for which the Contractor shall be compensated pursuant to
Section 4.1.2), the Contractor may impose the fees or charges set forth in Schedule 2 to this
Agreement upon City residents and businesses for deliveries of Solid Waste to the Transfer
Station . All such charges shall be subject to the annual adjustments set forth in Section 4.2 of
this Agreement. The Contractor shall be responsible for billing and collection of such fees and
the City shall have no liability therefor.
SECTION 5: CONTRACT TERM
This Agreement shall become effective on the Effective Date and shall continue in
effect until the tenth anniversary of the Service Date ,and may be extended, at the sole
discretion of the City, on the same conditions as set forth in this Agreement, for two (2)
additional five-year periods; provided, however, the City provides Contractor with written
notice of its election to renew at least sixty (60) days prior to the expiration of the then existing
Contract Term hereunder, unless earlier terminated pursuant to the termination provisions of
Section 19, in which event the Contract Term shall be deemed to have ended as of the date of
such termination. At the end of the Contract Term, all obligations of the parties hereunder will
terminate except as provided in Section 28.
SECTION 6: INSPECTIONS
Contractor agrees to permit City -Designated Personnel to inspect its routes, transfer
station facilities, disposal and hauling equipment, complaint logs, or procedures to the extent
that such pertain to the performance of this Agreement. The City shall have the right, at any
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—. i— —.:.—-I --r y -: i r I IT — I r err .:. 7T.=r.7,... ..7.
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time and at any place, to search Solid Waste delivered to the Transfer Station for personal
property retrieval or law enforcement purposes. This right shall in no way be restricted by the
Contractor and shall extend to the Disposal Facility and the Backup Disposal Facility as well as
vehicles carrying such Solid Waste at any point along the route to the Disposal Facility and the
Backup Disposal Facility. The Contractor shall cooperate and assist the City in this regard.
Such cooperation and assistance shall include diverting vehicles carrying Solid Waste in
transport, producing Solid Waste for inspection by the City and identifying the location of Solid
Waste deposited at the Disposal Facility and the Backup Disposal Facility.
SECTION 7: PERFORMANCE BOND
7.1 Upon execution of this Agreement, Contractor shall furnish to the City a
performance bond, in the form attached hereto as Schedule 3 for the faithful performance of
this Agreement by the Contractor and all Contractor obligations arising hereunder in the amount
of $1,500,000.00. The cost and expense of obtaining and maintaining the bond under this
Section 7 shall be borne by the Contractor without additional reimbursement from the City.
7.2 A surety company licensed to do business in the Commonwealth of Kentucky
and acceptable to the City shall issue the bond. A certificate from the surety company showing
that the bond premiums are paid in full shall accompany the bond. The bond shall be extended
annually thirty (30) days in advance of each Contract Year in an amount of $1,500,000.00, and
shall remain in effect for a period of time ninety (90) days following the expiration or
termination of this Agreement.
SECTION 8: INDEPENDENT CONTRACTOR
The Contractor shall perform all work and services described in this Agreement as an
independent contractor and not as an officer, agent, servant or employee of the City. Except as
otherwise provided under this Agreement, Contractor shall have exclusive control of and the
exclusive right to control the details of the services and work performed hereunder and all
persons performing the same, and nothing herein shall be construed as creating a partnership or
joint venture between the City and Contractor. No person performing any of the work or
services described hereunder shall be considered an officer, agent, servant or employee of the
City, and no such person shall be entitled to any benefits available or granted to employees of
the City.
SECTION 9: COMPLIANCE WITH LAWS AND REGULATIONS
The Contractor shall be required to perform all services under this Agreement in
compliance with and shall qualify under any and all Applicable Law, and shall cause all
subcontractors approved by the City in accordance with Section 13 to comply with any and all
Applicable Law. If at any time the Contractor falls to meet these requirements, it shall take
immediate actions necessary to remedy such failure, shall pay any resulting damages, penalties
and fines and, pursuant to Section 17, shall indemnify and hold harmless the City Indemnitees
from any loss and expense resulting therefrom.
SECTION 10: GOVERNMENTAL APPROVALS
Contractor at its sole cost and expense, shall maintain throughout the term of this
Agreement all Governmental Approvals necessary or required for Contractor to perform the
work and services described herein, as required by Governmental Bodies and Applicable Law.
SECTION 11: LAW TO GOVERN: FORUM SELECTION
This Agreement is entered into and is to be performed in the Commonwealth of
Kentucky. The City and Contractor agree that the laws of the Commonwealth of Kentucky shall
govern the rights, obligations, duties and liabilities of the parties to this Agreement and shall
govern the interpretation of this Agreement. Any legal action arising from or relating in any way
to this Agreement shall have venue exclusively in the state courts of McCracken County,
Kentucky.
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SECTION 12: EMERGENCIES
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In the event of an emergency, including fire, weather, environmental, health, safety and
other potential emergency conditions, the Contractor shall: (1) provide appropriate notifications
to the City and the Governmental Bodies having jurisdiction and shall facilitate coordinated
emergency response actions -by the City and all such other appropriate Governmental Bodies; (2)
undertake necessary spill prevention and response measures; (3) assure timely availability of all
personnel required to respond to any emergency; and (4) otherwise comply with this Agreement.
SECTION 13: SUBCONTRACTORS
The Contractor hereby agrees that no subcontractor will be used to perform any of the
services to be provided to the City under this Agreement without written approval of the City.
The Contractor further agrees that any subcontractor shall meet all City requirements imposed
on the Contractor. The Contractor may use temporary employees from temporary employment
agencies. The Contractor shall retain full responsibility to the City under this Agreement
notwithstanding the execution or terms and conditions of any subcontract, and no failure of any
subcontract used by the Contractor shall relieve the Contractor from its obligations hereunder.
The Contractor's indemnity obligations under Section 17 shall extend to all claims for payment
of damages by any subcontractor who furnishes or claims to have furnished any labor, services,
materials or equipment in connection with the services performed under this Agreement.
SECTION 14: NON -ASSIGNMENT
The Contractor shall not assign, transfer, convey, or otherwise hypothecate this
Agreement or its rights, duties or obligation hereunder or any part thereof without the prior
written consent of the City.
SECTION 15: INSURANCE
The Contractor shall obtain and maintain, at its sole cost, throughout the Contract Term
of this Agreement, at Contractor sole cost and expense, not less than the insurance coverage set
forth below, in addition to the insurance required by Applicable Law, from an insurance
company authorized to write casualty insurance in the Commonwealth of Kentucky and having
a minimum rating of "A -VII" in the Best Key Rating Guide published by A.M. Best &
Co., Inc., as will protect itself, its subcontractors, the City, including officials, agents and
employees of the City, from claims for bodily injury, death, property damage, or environmental
liability which may arise from operations and services performed under this Agreement. Each
insurance policy (excluding Worker's Compensation ) shall name the City as additional
insured. The Contractor shall not commence work under this Agreement until it has obtained all
insurance required under this Section, and shall have filed the certificates of insurance or a
certified copy of the insurance policies with the City. Each insurance policy shall contain a
clause providing that it shall not be canceled by the insurance company without ten (10) days
written notice to the City of intention to cancel.
1. Commercial General Liability on an occurrence basis, covering bodily injury,
personal injury, advertising injury and property damage including loss of use, with
minimum limits of:
a. $2,000,000 Minimum General Aggregate;
b. $2,000,000 Products & Complete Aggregate;
c. $1,000,000 Personal & Advertising; and
d. $1,000,000 each occurrence.
The Commercial General Liability insurance shall include coverage for on -
premises and off -premises operations, contractual liability, broad form property damage and
professional liability.
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The Commercial General Liability insurance (other than professional liability)
shall be written on an occurrence basis and shall not be written on a claims- made basis.
Coverage shall be written on current/latest edition of ISO CG0001 or its
equivalent. The City shall be named as an additional insured for ongoing as well as completed
operations using the latest edition of ISO endorsements CG2010 and CG2037.
2. Business Automobile Liability insurance coverage, or its equivalent, covering liability
arising out of the ownership, maintenance, operation, or use of any owned, non -owned and hired
automobiles in connection with this Agreement with a combined single limit for bodily injury
and property damage of $1,000,000 each occurrence.
Coverage shall be written on latest edition of ISO CA0020 including CA 9948 or
its equivalent.. Coverage shall include the MCS -90 endorsement.
3. Employers Liability with minimum limits of-
a.
f
a. $1,000,000 Each Accident for Bodily Injury;
b. $500,000 Policy limit for Bodily Injury by Disease; and
c. $1,000,000 Each Employee bodily Injury by Disease.
4. The insurance required above must be evidenced by a Certificate of Insurance and this
Certificate of Insurance must contain one of the following statements:
a. Policy contains no deductible clauses -or-
b. Policy contains $ 1,000.00 deductible property damage clause; however,
insurance company will pay claim and collect the deductible from the Contractor.
c. Higher environmental liability deductibles are acceptable with the prior written
approval of the City
5. Kentucky Worker's Compensation Insurance to meet the statutory requirements of the
commonwealth of Kentucky: The Contractor shall furnish evidence of coverage of all employees
by executing and delivering to the City the Form included in the specifications.
6. All risk property and casualty insurance for the replacement value of the Transfer
Station including without limitation the Scales Facility and the Citizen Drop-off Center, and all
equipment, vehicles, and other related assets to the Contractor's business operation.
7. Environmental Liability coverage as follows:
a. $1,000,000.00 - Pollution Legal Liability and Remediation Legal Liability
coverage on the Transfer Station and/or Transfer Station Site;
b. $1,000,000.00 — Auto Pollution Liability and Contingent Transportation
coverage for each occurrence during the transportation of the Solid Waste; and
c. $1,000,000.00 - Owned and Non -Owned Disposal Site Pollution Legal Liability
and Remediation/Cleanup coverage and Contingent Transportation Pollution Liability coverage
on the Disposal Facility and the Backup Disposal Facility.
All subcontractors must meet the same minimum insurance requirements. Copies of all
such insurance policy or policies shall be on file with the City prior to the Service Date and
annually at the commencement of each Contract Year.
SECTION 16: SAFETY AND SECURITY
16.1. The Contractor shall maintain the safety of the operations of the Transfer Station
at a level consistent with Applicable Law. Without limiting the foregoing, the Contractor shall:
(1) take all precautions for the safety of, and provide all reasonable protection to prevent
damage, injury or loss by reason of or related to the operation of the Transfer Station to, (a) all
employees working at the Transfer Station and all other persons who may be involved in the
operation and maintenance of the Transfer Station, (b) all customers and visitors to the Transfer
Station; (2) establish and enforce all reasonable safeguards for safety and protection, including
posting danger signs and other warnings against hazards and promulgating safety regulations; (3)
give all notices and comply with all Applicable Law relating to the safety of persons or property
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or their protection from damage, injury or loss; (4) designate qualified and responsible
employee(s) whose duty shall be the supervision of safety, the prevention of fire and accidents
and the coordination of such activities as shall be necessary with Applicable Law and City
officials; and (5) provide for safe and orderly vehicular movements.
16.2. The Contractor shall be responsible for the security of the Transfer Station,
including the safe storage and security of Contractor's equipment, and shall maintain suitable
fences, gates and locks at the Transfer Station. The Contractor shall guard against and be
responsible for all damage or injury to such properties caused by trespass, negligence, vandalism
or malicious mischief of third parties. The Contractor shall prepare a Safety and Security Plan
that will be reviewed by the parties annually and updated when necessary.
SECTION 17: INDEMNIFICATION
17.1. The Contractor covenants and agrees to indemnify, defend, hold harmless, and
render whole the City and its elected officials, appointed officers, directors, employees,
representatives, agents, consultants and contractors (each, a "City Indemnitee") for (and
pay the full amount of) any loss, cost, and expense, including attorney fees, which are incurred
by the City Indemnitee for reason of the Contractor's failure to properly perform under this
Agreement. Additionally, it is expressly agreed and understood that the Contractor shall at all
times indemnify and save the City Indemnitee harmless from (and pay the full amount of) any
and all loss or damage which may be sustained by the City Indemnitee by reason of any
negligent act or omission committed by the Contractor, and/or its employees and agents, in the
performance of its work hereunder. The Contractor shall indemnify and save the City
Indemnitee harmless from (and pay the full amount of) any and all claims, demands, and
causes of action arising either directly or indirectly from any of such negligent act or omission
including but not limited to claims by third parties for property damage or personal injury.
17.2. Notwithstanding the foregoing provisions, in the event loss or damage incurred
by the City Indemnitee or claims, demands, or causes of action asserted against the City
Indemnitee is attributable to the sole negligence of the City Indemnitee the foregoing
provisions shall not apply, but rather, the parties shall have such rights and remedies as
provided by law.
17.3. The Contractor's indemnification obligations hereunder shall also include
reimbursement to the City Indemnitee for any attorney fees and court costs incurred by the
City Indemnitee by reason of making a claim for loss or damage or by reason of the assertion
of any claims, demands, or causes of action against it
SECTION 18: EVENTS OF DEFAULT BY THE CONTRACTOR
18.1. In the event the Contractor defaults in the performance of any of the material,
covenants or agreements to be kept, done, or performed by it under the terms of this Agreement,
the City at its option may notify the Contractor in writing of the nature of such default. Within
fifteen (15) days following such notice,
18.1.1. the Contractor shall correct the default; or
18.1.2. in the event of a default not capable of being corrected within fifteen (15) days,
the Contractor shall commence correcting the default within fifteen (15) days of the City's
notification. The City, in its unreviewable discretion, may grant an extension of time for the
correction of the default or for the commencement of actions to correct the default providing
that, in the City's reasonable judgment, the Contractor is diligently pursuing a correction, but in
no event shall this extension be longer than (40) days from the City's notification.
18.2. If the Contractor fails to correct the default as provided above, the City, without
further notice, shall have all of the following rights which the City may exercise singly or in
combination, in addition to any other right or remedy allowed by Applicable Law:
18.2.1. the right to declare that this Agreement, together with all rights granted the
Contractor hereunder, are terminated effective upon such date as the City shall designate; and
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18.2.2. the right to contract with others to perform the services otherwise to be
performed by the Contractor, or to perform such services itself, in which event the Contractor
shall be liable to the City for the costs expended by the City to secure such performance; and
18.2.3. the right to pursue all legal and equitable remedies against the Contractor and/or
on its bond posted under Section 8 hereof to recover the costs, expenses, and losses by such
default.
18.3. Each of the following will constitute a default by the Contractor upon which
the City, by notice to the Contractor, may terminate this Agreement without any
requirement of having given notice previously or of providing the cure opportunity set forth in
Section 18.1:
18.3.1. The failure of the Contractor to have achieved the Service Date by
October 1, 2016.
18.3.2. Failure to maintain the insurance as required by Section 15 or bonds required as
set forth in Section 7 of this Agreement.
18.3.3. Declaration of voluntary or involuntary bankruptcy.
18.3.4. The insolvency of the Contractor as determined under the Bankruptcy Code.
18.3.5. Except to the extent excused due to an Uncontrollable Circumstance, the
failure or refusal of the Contractor to accept, process and dispose of Solid Waste during normal
operating hours (i) for a 24-hour period (other than Holidays) at the Transfer Station, or (ii) for
a period of seven consecutive days (excluding Holidays) at the Transfer Station.
18.4. The right of termination provided under this Section 18 upon default by the
Contractor is not exclusive. If this Agreement is terminated by the City for a default by the
Contractor, the City shall have the right to pursue a cause of action for actual damages
and to exercise all other remedies which are available to it under this Agreement, under
the bond set forth in Section 7 and under Applicable Law.
18.5. Termination of this Agreement pursuant to this Section will not relieve the
Contractor or its Surety from liability for liquidated damages provided under this Agreement.
The Contractor shall be liable for all liquidated damages that have accrued up to the
termination date. The parties acknowledge and agree that such liquidated damages are intended
solely to compensate the City for costs and expenses associated with the specific circumstances
identified in the specific provisions providing for such liquidated damages and are not
intended to liquidate all damages that the City is likely to suffer in the event of a
Contractor Event of Default under this Article. Accordingly, except with respect to damages
relating solely to the specific circumstances for which liquidated damages are provided under
this Agreement, the payment of any such liquidated damages by the Contractor will not serve to
limit or otherwise affect the City's right to pursue and recover damages under subsection (C) of
this Section.
18.6 In the event of breach or default, the non-breaching/non-defaulting party
shall also be entitled to recover any costs and expenses incurred in interpreting and
enforcing this Agreement, including any court costs, expenses, and reasonable attorney
fees. `
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SECTION 19: EVENTS OF DEFAULT BY THE CITY
19.1. Each of the following shall constitute a default by the City upon which the
Contractor, by written notice and an opportunity to cure to the City, may terminate this
Agreement:
19.1.1. Any representation or warranty of the City hereunder was false or inaccurate in
any material respect when made, and the legality of this Agreement or the ability of the City to
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carry out its obligations hereunder is thereby adversely affected.
19.1.2. The failure, refusal or other default by the City in its duty to pay an amount
required to be paid to the Contractor under this Agreement within 60 days following the due
date for such payment.
19.2. No such default described in this Section 19 will give the Contractor the right to
terminate this Agreement for cause unless:
19.2.1. The Contractor has given prior written notice to the City stating that a specified
default has occurred, which gives the Contractor a right to terminate this Agreement for cause
under this Section, and describing the default in reasonable detail; and
19.2.2. The City has neither challenged in an appropriate forum the Contractor's
conclusion that such default has occurred or constitutes a material breach of this Agreement nor
corrected or diligently taken steps to correct such default within a reasonable period of time not
to exceed 30 days after the date of the notice given pursuant to the preceding paragraph
(but if the City shall have diligently taken steps to correct such default within a
reasonable period of time, the same shall not constitute a default giving the Contractor a
right to terminate this Agreement for as long as the City is continuing to take such steps
to correct such default).
19.3. In the event of breach or default, the non-breaching/non-defaulting parry
shall also be entitled to recover any costs and expenses incurred in interpreting and
enforcing this Agreement, including any court costs, expenses, and reasonable attorney
fees.
SECTION 20: NON-BINDING MEDIATION
20.1. Either party may request non-binding mediation of any dispute arising under this
Agreement. The non -requesting party may decline the request in its sole discretion. If there is
concurrence that any particular matter shall be mediated, the provisions of this Section shall
apply. The costs of such non-binding mediation shall be divided equally between the City and
the Contractor.
20.2. The mediator shall be a professional engineer, attorney or other professional
mutually acceptable to the parties who has no current or on-going relationship to either party.
The mediator shall have full discretion as to the conduct of the mediation. Each party shall
participate in the mediator's program to resolve the dispute until and unless the parties reach
agreement with respect to the disputed matter or one party determines in its sole discretion that
its interest are not being served by the mediation.
20.3. Mediation is intended to assist the parties in resolving disputes over the correct
interpretation of this Agreement. No mediator shall be empowered to render a binding decision.
20.4. Nothing in this Section shall operate to limit, interfere with or delay the right of
either party under this Article to commence judicial legal proceedings upon a breach of this
Agreement by the other party, whether in lieu of, concurrently with, or at the conclusion of any
non-binding mediation.
20.5 Notwithstanding any disputes which arise between the City and the Contractor,
the Contractor shall continue to perform all services required of it under this Agreement during
the pendency of the dispute. The City shall pay the undisputed amounts pursuant to this
Agreement.
SECTION 21: REPRESENTATIONS AND WARRANTIES
21.1. The Contractor represents and warrants that it is a limited liability company duly
organized, validly existing and in good standing under the laws of the Commonwealth of
Kentucky, is duly qualified to conduct business in the Commonwealth of Kentucky, and has the
power and authority to enter into this Agreement and to perform the obligations set forth herein.
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The execution and delivery of this Agreement has been approved by all necessary action of the
members of the Contractor, and no other actions are required in order to constitute this
Agreement as a binding obligation of a contract.
21.2. To the best of its knowledge after due inquiry, neither the execution nor delivery
by the Contractor of this Agreement nor the performance by the Contractor of its obligations in
connection with the transactions contemplated hereby or the fulfillment by the Contractor of the
terms or conditions hereof (1) conflicts with, violates or results in a breach of any constitution,
law or governmental regulation applicable to the Contractor or (2) conflicts with, violates or
results in a breach of any order, judgment or decree, or any organizational document of the
Contractor, or any contract, agreement or instrument to which the Contractor is a party or by
which the Contractor or any of its properties or assets are bound, or constitutes a default under
any of the foregoing.
21.3. Except as disclosed in writing to the City, there is no legal proceeding, at law or
in equity, before or by any court or Governmental Body pending or, to the best of the
Contractor's knowledge after due inquiry, overtly threatened or publicly announced against the
Contractor, in which an unfavorable decision, ruling or finding could reasonably be expected to
have a material and adverse effect on the execution and delivery of this Agreement by the
Contractor or the validity, legality or enforceability of this Agreement against the Contractor, or
any other agreement or instrument entered into by the Contractor in connection with the
transactions contemplated hereby, or on the ability of the Contractor to perform its obligations
hereunder or under any such other agreement or instrument.
21.4. No approval, authorization, order or consent of, or declaration, registration or
filing with, any Governmental Body is required for the valid execution and delivery of this
Agreement by the Contractor or the performance of its payment or other obligations hereunder
except as such have been duly obtained or made or, if not required as of the Effective Date, are
expected to be obtained in due course.
21.5 Except as disclosed in writing to the City, to the best of its knowledge after due
inquiry, there are no material and adverse claims or demands based in environmental or tort law,
or based on breach of contract, pending or threatened against the Contractor with respect to any
solid waste transfer station operated, maintained or managed by the Contractor that would have a
material and adverse effect upon the ability of the Contractor to perform this Agreement.
21.6 Except as disclosed in writing to the City, to the best of its knowledge after due
inquiry, the Contractor is not in material violation of any law, order, rule or regulation applicable
to any solid waste transfer station operated, maintained or managed by the Contractor, the
violation of which may have a material and adverse effect on the ability of the Contractor to
perform its obligations hereunder.
21.7 The information supplied and representations and warranties made by the
Contractor in all submittals made in response to the RFP and in all post -Contractor Proposal
submittals with respect to the Contractor are true, correct and complete in all material respects.
SECTION 22: NOTICES
All notices required, permitted, or given pursuant to the provisions of this Agreement
shall be in writing, and either (i) hand delivered, (ii) delivered by certified mail, postage prepaid,
return receipt requested, (iii) delivered by an overnight delivery service, or (iv) delivered by
facsimile machine or email, followed within twenty-four (24) hours by delivery under options
(i), (ii) or (iii) addressed as follows: T\
If to the Contractor:
Freedom Waste Service, LLC
10129 Highway 62 West
Princeton, Kentucky 42445
With copy to: Freedom Waste Service, LLC
6500 Glenridge Park Place, Suite #10
Louisville, Kentucky 40222
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With copy to: Bryan Wilson, Esq.
Neely, Brien & Wilson
238 North 7t' Street
Mayfield, Kentucky 42066
bryan@neelybrien.com
If to the City:
City of Paducah Kentucky
City Hall
300 South 5' Street
Paducah, KY 42001
Attention: City Manager
jpederson@paducahky.gov
With copy to:
City Attorney
Glenn D. Denton
Denton Law Firm, PLLC
555 Jefferson Street, Suite 301
Paducah, KY 42001
gdenton@dentonfinn.com
Notices shall be deemed delivered upon receipt. The addresses given above may be
changed by any party by notice given in the manner provided herein.
SECTION 23: CONTRACTOR'S RECORDS
23.1. Contractor shall maintain its books and records related to the performance of
this Agreement in accordance with the following minimum requirements:
23.1.1. Contractor shall maintain any and all ledgers, books of account, invoices,
vouchers and canceled checks, as well as all other records or documents evidencing or
relating to charges for services, expenditures or disbursements borne by the City for a
minimum period of five (5) years, or for any longer period required by Applicable Law,
from the date of final payment to Contractor pursuant to this Agreement.
23.1.2. Contractor shall maintain all documents and records that demonstrate
performance under this Agreement for a minimum period of five (5) years, or for any
longer period required by Applicable Law, from the date of termination or completion of
this Agreement.
23.2. Any records or documents required to be maintained pursuant to this
Agreement shall be made available for inspection or audit, at any time, during regular business
hours, upon written request by the City or its designated agent or representative. The records
shall be available to the City at the address indicated above for receipt of notices in this
Agreement.
23.3. The Contractor shall fully support the City's reporting requirements as required
by Applicable Law by providing all data, reports and other information which may be necessary
for the City to comply with such reporting requirements or information requests.
SECTION 24: WAIVER
A waiver of any breach of any provision of this Agreement shall not constitute or
operate as a waiver of any other breach of such provision or of any other provisions, nor shall
any failure to enforce any provision hereof operate as a waiver of such provision or of any
other provision.
SECTION 25: UNCONTROLLABLE CIRCUMSTANCES
25.1. Except as expressly provided under the terms of this Agreement, neither party to
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this Agreement shall be liable to the other for any loss, damage, delay, default or failure to
perform any obligation to the extent it results from an Uncontrollable Circumstance. The parties
agree that the relief for an Uncontrollable Circumstance described in this Section shall apply to
all obligations in this Agreement, except to the extent specifically provided otherwise,
notwithstanding that such relief is specifically mentioned with respect to certain obligations in
this Agreement but not other obligations. The occurrence of an Uncontrollable Circumstance
shall not excuse or delay the performance of a party's obligation to pay monies previously
accrued and owing under this Agreement, or to perform any obligation hereunder not affected
by the occurrence of the Uncontrollable Circumstances.
25.2. The party that asserts the occurrence of an Uncontrollable Circumstance shall
notify the other party by telephone, facsimile or a mail (accompanied by a telephone call to the
City -Designated Personnel), on or promptly after the date the party experiencing such
Uncontrollable Circumstance first knew of the occurrence thereof, followed within 15 days by a
written description of. (1) the Uncontrollable Circumstance and the cause thereof (to the extent
known); (2) the date the Uncontrollable Circumstance began, its estimated duration, and the
estimated time during which the performance of such party's obligations hereunder shall be
delayed, or otherwise affected; (3) its estimated impact on the other obligations of such party
under this Agreement; and (4) potential mitigating actions which might be taken by the
Contractor or the City and any areas where costs might be reduced and the approximate amount
of such cost reductions. As soon as practicable after the occurrence of an Uncontrollable
Circumstance, the affected party shall also provide prompt written notice of the cessation of
such Uncontrollable Circumstance. Whenever an Uncontrollable Circumstance occurs, the party
claiming to be adversely affected thereby shall, as promptly as reasonably possible, use all
reasonable efforts to eliminate the cause thereof, mitigate and limit damage to itself and the
other party, and resume full performance under this Agreement. While the Uncontrollable
Circumstance continues, the affected party shall give notice to the other party, before the first
day of each succeeding month, updating the information previously submitted. The party
claiming to be adversely affected by an Uncontrollable Circumstances shall bear the burden of
proof, and shall furnish promptly any additional documents or other information relating to
the Uncontrollable Circumstance reasonably requested by the other party. The Contractor
shall furnish promptly any additional documents or other information relating to the
Uncontrollable Circumstance reasonably requested by the City.
25.3. If and to the extent that Uncontrollable Circumstances interfere with or delay or
the Contractor's performing this Agreement in accordance herewith, and the Contractor has
given timely notice as required by Section 25.2, the Contractor shall be entitled to relief from its
performance obligations, or an extension of schedule which properly reflects the interference
with performance, or the time lost as a result thereof, in each case only to the minimum extent
reasonably forced on the Contractor by the event, and the Contractor shall perform all other
obligations under this Agreement. In the event that the Contractor believes it is entitled to any
performance or schedule relief on account of any Uncontrollable Circumstance, it shall furnish
the City written notice of the specific relief requested and detailing the event giving rise to the
claim within 10 days after the giving of notice delivered pursuant to Section 25.2. Within 30
days after receipt of such a timely submission from the Contractor the City shall issue a written
determination as to the extent, if any, it concurs with the Contractor claim for performance or
schedule relief, and the reasons therefor. The Contractor acknowledges that its failure to give
timely notice pertaining to an Uncontrollable Circumstance as required under this Section 25
may adversely affect the City. To the extent the City asserts that any such adverse effect has
occurred and that the adjustment to the Contractor under this Section should be reduced to
account for such adverse effect, the Contractor shall have the affirmative burden of refuting the
City's assertion. Absent such refutation, the reduction in adjustment to the Contractor asserted
by the City in such circumstances shall be effective. The agreement of the parties as to the
specific relief to be given the Contractor hereunder on account of an Uncontrollable
Circumstance shall be evidenced by a written amendment to this agreement.
25.4. Notwithstanding the forgoing, should Contractor be unable to render
performance under this Agreement by reason of Uncontrollable Circumstances, the City shall
have the right to secure another vendor to perform any or all portions of the service
required under this Agreement for the period of the expected duration of Contractor's
inability to perform as set out in Contractor's written notice. In the event Contractor
becomes able to resume the performance of its obligations prior to the date set out in the
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written notice, the City, in its sole discretion, shall have the right to continue service
during the notice period with any alternate vendor procured during the notice period or instruct
Contractor to resume services notwithstanding anything herein to the contrary.
25.5. The City shall resume service with Contractor according to the terms of this
Agreement after expiration of the notice period, unless Contractor shall provide further
written notice of its continuing inability to perform by reason of Uncontrollable
Circumstances.
25.6. At any time that Contractor's performance is suspended as set out in this
Section, it is understood and agreed by the parties that the City shall not be obligated to
Contractor for any or all service interrupted by reason of Uncontrollable Circumstances.
SECTION 26: COMPLIANCE WITH EOUAL EMPLOYMENT OPPORTUNITY
During the performance of services in this Agreement, Contractor agrees it will not
discriminate in its hiring, employment, and contracting practices with reference to age, sex,
race, color, religion, national origin, handicap or disability. The Contractor shall fully comply
with Applicable Law, including, but not limited to, posting in conspicuous places, available to
employees and applicants for employment, all notices required by Applicable Law.
SECTION 27: DRUG-FREE WORKPLACE.
During the performance of this Agreement, the Contractor agrees to (1) provide a
drug-free workplace for the Contractor's employees; (2) post in conspicuous places,
available to employees and applicants for employment, a statement notifying employees
that the unlawful manufacture, sale, distribution, dispensation, possession, or use of a
controlled substance is prohibited in the Contractor's workplace and specifying the
actions that will be taken against employees for violations of such prohibition; (3) state in
all solicitations or advertisements for employees placed by or on behalf of the Contractor
that the Contractor maintains a drug-free workplace; and (4) include the provisions of the
foregoing clauses in every subcontract of over $10,000, so that the provisions will be
binding upon each subcontractor. For the purposes of this Section, "drug-free workplace"
means a site for the performance of services performed in conjunction with this
Agreement. The Contractor's employees, in accordance with this Section, are prohibited
from engaging in the unlawful manufacture, sale, distribution, dispensation, possession or
use of any controlled substance during the performance of this Agreement.
SECTION 28: SURVIVAL OF CERTAIN PROVISIONS UPON TERMINATION
All representations and warranties of the parties hereto contained in this Agreement, the
Contractor's indemnity obligations in this Agreement with respect to events that occurred prior
to the termination, Section 19, and all other provisions of this Agreement that so provide shall
survive the termination of this Agreement, subject to any statute of limitation provisions of
Applicable Law. No termination of this Agreement shall (1) limit or otherwise affect the
respective rights and obligations of the parties hereto accrued prior to the date of such
termination; or (2) preclude either party from impleading the other parry in any legal proceeding
originated by a third -party as to any matter occurring during the Contract Term to the extent
permitted under Applicable Law.
SECTION 29: TITLES OF SECTIONS
Section headings preceding the text of the sections and subsections of this Agreement are
for convenience of reference only, and will not affect its meaning, construction or effect.
SECTION 30: AMENDMENT
This Agreement may be modified or amended only by a written agreement duly
executed by the parties hereto or their representatives and approved by action of the City
Commission.
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SECTION 31: SEVERABILITY
The invalidity of one or more of the phrases, sentences, clauses or section contained in
this Agreement shall not affect the validity of the remaining portion of this Agreement so long
as the material purposes of this Agreement can be determined and effectuated. If any phrase,
sentence, clause, or section of this Agreement is ruled invalid by any court of competent
jurisdiction, then the parties will: (1) promptly negotiate a substitute for such phrase, sentence,
clause, or section which will, to the greatest extent legally permissible, effect the intent of the
parties in the invalid phrase, sentence, clause, or section; (2) if necessary or desirable to
accomplish Item (1) above, apply to the court having declared such invalidity for a judicial
construction of the invalidated portion of this Agreement; and (3) negotiate such changes in
substitution for or addition to the remaining provisions of this Agreement as may be necessary in
addition to and in conjunction with items (1) and (2) above to effect the intent of the parties in
the invalid provision.
SECTION 32: SUCCESSORS AND ASSIGNS
This Agreement shall be binding upon the parties hereto, their successors and assigns.
SECTION 33: ENTIRETY
This Agreement contains the entire agreement between the parties hereto with respect to
the transactions contemplated by this Agreement. Without limiting the generality of the
foregoing, this Agreement completely and fully supersedes all other understandings and
agreements among the parties with respect to such transactions, including those contained in the
RFP, the Contractor's Proposal, and any amendments or supplements to the RFP or the
Contractor's Proposal. Any oral representations or modifications concerning this Agreement
shall be of no force and effect.
SECTION 34: COUNTERPARTS
This Agreement may be executed simultaneously or in any number of counterparts, each
of which shall be deemed to be an original, but all of which together shall constitute one and the
same agreement.
SECTION 35: DRAFTING RESPONSIBILITY
The parties waive the application of any rule of law which otherwise would be applicable
in connection with the construction of this Agreement to the effect that ambiguous or conflicting
terms or provisions should be construed against the party who (or whose counsel) prepared the
executed agreement or any earlier draft of the same.
SECTION 36: THIRD PARTY RIGHTS
This Agreement is exclusively for the benefit of the City and the Contractor and will not
provide any third parties (with the sole exception of the rights of any third -parry City
Indemnitees under Section 17) with any remedy, claim, liability, reimbursement, cause of action,
or other rights.
SECTION 36: LIQUIDATED DAMAGES
This Agreement provides for the payment by the Contractor of liquidated damages in
certain circumstances of non-performance, breach and default. Each party agrees that the City's
actual damages in each such circumstance would be difficult or impossible to ascertain
(particularly with respect to the public harm that would occur as a result of such non-
performance, breach or default of the Contractor), and that the liquidated damages provided for
herein with respect to each such circumstance are a reasonable forecast of the just compensation
required to place the City in the same economic position as it would have been in had the
circumstance not occurred. Such liquidated damages will constitute the only damages payable by
the Contractor to the City in such circumstances of non-performance, breach or default,
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regardless of legal theory. This limitation, however, is not intended to limit any of the other
remedies for breach specifically provided for in this Agreement. The parties acknowledge and
agree that the additional remedies specifically provided for in this Agreement are intended to
address harms and damages which are separate and distinct from those which the liquidated
damages are meant to remedy. In addition, the parties agree as follows: (i) that the liquidated
damages payable under this Agreement are not a penalty, and are fair and reasonable and such
payment represents a reasonable estimate of fair compensation for the losses that may reasonably
be anticipated from the specific circumstances of non-performance or breach; (ii) and that, in
recognition of the acknowledgments above, the Contractor is expressly estopped from arguing,
and waives any rights it may have to argue, that the liquidated damages provided for herein are a
penalty or are otherwise not enforceable.
[Signatures on the following page.]
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed as of the day and year first above written.
THE CITY:
CITY OF PADUCAH, KENTUCKY
in
Title:
THE CONTRACTOR:
FREEDOM WASTE SERVICE, LLC
0
Title:
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SCHEDULE1
TRANSFER STATION APPROVED PLANS
ATTACHED HERETO
[To be provided by the Contractor.]
25
501
502
SCHEDULE2
SOLID WASTE DELIVERY FEES FOR CITY RESIDENTS AND BUSINESSES
$45-$65/ton subject to volume and type.
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SCHEDULE3
PERFORMANCE BOND
CONTRACTOR'S PERFORMANCE AND PAYMENT BOND
KNOW ALL MEN BY THESE PRESENTS, that FREEDOM WASTE SERVICE, LLC, a
Kentucky limited liability company (the "Contractor"), as Principal, and EVERGREEN
NATIONAL INDEMNITY COMPANY (the "Bonding Company"), as Surety, an Ohio
corporation, whose principal office is located at 6140 Parkland Boulevard, Suite 300, Mayfield
Heights, OH 44124, are firmly bound unto the City of Paducah, a political subdivision the State of
`-" Kentucky, (the "City"), as Obligee, to fulfill the obligations of the Principal and the Surety under the
AGREEMENT FOR TRANSFER, TRANSPORT AND DISPOSAL OF MUNICIPAL SOLID
WASTE (the "Contract") to which reference is hereafter made, in the amount of ONE MILLION
FIVE HUNDRED THOUSAND AND 00/100 DOLLARS ($1,500,000.00) (including State sales
tax) for payment whereof Principal and Surety bind themselves, their heirs, executors,
administrators, successors and assigns jointly and severally, firmly by these presents.
WHEREAS, the Contractor 1 has entered into a written Agreement for Transfer, Transport, and
Disposal of Municipal Solid Waste with the City of Paducah, dated January [ . 2016.
NOW, THEREFORE, the condition of this obligation is such that if the Principal shall
faithfully perform all the provisions of the Contract on its part, and pay all laborers, mechanics,
subcontractors and material suppliers, and all persons who supply such person or persons or
subcontractors with provisions and supplies for the carrying on of such work, and indemnify and
hold harmless the City, as Obligee, from all loss, cost or damage which it may suffer by reason of
the failure to do any of the foregoing, then this obligation shall be null and void; otherwise it shall
remain in full force and effect.
The said Surety for value received hereby stipulates and agrees that no change, extension of
time, alteration or addition to the terms of the Contract or to the services to be performed
thereunder or the SPECIFICATIONS as set forth in the RFP accompanying the same shall in any
way affect its obligation on this BOND, and it does hereby waive notice of any such change,
extension of time, alteration or addition to the terms of the Contract or to the services or to the
SPECIFICATIONS as set forth in the RFP.
No final settlement between the City and the Contractor shall abridge the right of any
beneficiary hereunder, whose claim may be unsatisfied.
Terms herein not otherwise defined herein shall have the same meaning as defined in the
Contract and the RFP.
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SIGNED AND SEALED THIS DAY OF JANUARY, 2016.
SURETY
Signature
Typed Name
Title
(SEAL)
PRINCIPAL
Signature
Typed Name
Title
Note: Date of bond must not be prior to the date of the Agreement.
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