WASTE CONTRACTS BOOTCAMP Aug. 23, 2018 Discussion Material Contract Language Scope of Work Contractor shall furnish all labor, tools, equipment and materials, supplies and services that may be necessary to collect, transport and dispose of all Refuse, Recyclable Materials, Yard Waste, Bulk Waste generated from residential properties within the Service Area and to deposit said refuse, materials and waste at such disposal or receiving site(s) designated by the County. Contractor shall perform such other services as are specified herein incidental to such Work. Residential properties shall include all buildings with one through three dwelling units and, based upon a list provided by the County, shall include such buildings with four through six dwelling units whose owners have not secured an exemption from County collection service. 1. The Contractor will perform and comply with the requirements and obligations of the contract, in accordance with the solicitation and bid, both of which are hereby incorporated by reference and made a part hereof. 2. The County will pay for satisfactory performance of the requirements of the contract, when due and payable, and will perform and comply with its own obligations in the contract.
- 2 - Collection Charges -- Hauler bills and collects: Contractor shall perform all services required by this Agreement in consideration of the right to charge and collect from Customers such amounts as may be established and adjusted or revised from time to time by the City Council under this Agreement. City does not guarantee collection of such amounts. Permissible charges as of the Effective Date are based on the Schedule of Rates which is attached as Exhibit A. The Rates will be adjusted in each succeeding year by [factors, including CPI] The Rates established by this Agreement shall be the full and exclusive compensation due to Contractor for performing all the services required by this Agreement. -- LG pays flat fee + accounting for disposal charges: Credit account each month for an amount equal to 1/12 (# dwelling units served x 1.60 tons x tipping fee per ton) Periodic adjustments to reflect changes in units served
- 3 - Termination Upon an Event of Default, the City may notify the Contractor in writing of the City s intention to terminate the Contract. Unless, within 30 days after such notice, a satisfactory arrangement is made for continuance, the Contractor shall be deemed in default and the Contract shall be automatically terminated, whereupon the City may take over and pursue the Work to completion, by contract or otherwise. The Contractor shall be liable for any excess costs incurred and for all other damages sustained by the City by reason of such termination, follow-up and completion. The Contractor shall be paid for all work satisfactorily performed up to the date of termination. City shall have the right to cancel this agreement upon first giving Contractor 60 days written notice, which shall specify both the nature and manner in which Contractor is in default. Upon Contractor s failure to correct or eliminate said default within such 60-day period, the City shall have the right to declare this Agreement forfeited. Upon such declaration, the City shall account for and pay to Contractor all monies due on the date of forfeiture. The exercise of the remedy of forfeiture shall not preclude the City s exercise of any other right or remedy under law, whether exercised concurrently or subsequently. Sample C: The City shall provide to Contractor written notice of the default and shall have the right to terminate this Agreement if the default has not been cured after ten days from the date written notice has been provided. The City shall pay Contractor all compensation earned prior to the date of termination minus any damages and costs incurred by the City as a result of the breach. Contractor shall not be relieved of liability to the City for damages sustained by the City as a result of any breach of the Agreement by Contractor. The City may withhold payments due to Contractor for the purpose of set-off until such time as the exact amount of damages due to the City is determined.
- 4 - Force Majeure Failure to perform the work in the manner required shall constitute a breach of agreement, provided such failure is not due to war, insurrection, riots, or acts of God (including, without limitation, earthquakes, tornadoes, hurricanes, and severe weather events), impassable roadways, labor disputes, strikes, lockouts, or industrial dispute or disturbances, civil disturbances, interruptions by government or court orders, necessity for compliance with any court order, law, statute, ordinance, or regulation promulgated by a governmental authority having jurisdiction, acts of the public enemy, events affecting facilities or services of non-affiliated third parties, or any other circumstances beyond the Contractor s reasonable control. Contractor shall not be deemed to be in default where its inability to perform any or all of the terms and conditions of the Agreement is the result of conditions beyond its control, including, but not limited to, civil disorder, acts of God, or inclement weather severe enough that trucks cannot make collections. In the event that the Contractor fails to provide service to a Dwelling Unit because of any of the above conditions, then Contractor shall have three days (excluding Saturdays, Sundays and federal holidays) to provide such service. In the event of a continuing failure beyond said period, the Contractor shall not be entitled to payment for any Dwelling Unit not serviced. Sample C: Neither party shall be responsible for damages or delays caused by events beyond the control of the other party and which could not reasonably have been anticipated or prevented. For purposes of this Agreement, such events include, but are not limited to, adverse weather conditions, floods, epidemics, war, riot, strikes, lockouts, unknown site conditions, accidents, sabotage, fire, and acts of God. Should Force Majeure occur, the parties shall mutually agree on the terms and conditions upon which the services may continue.
- 5 - Receiving Facilities Contractor shall dispose of all collected waste at the Green Meadows Landfill, County Route 27 and Rosarudy Lane, Pickville, NJ. In the event that the Contractor chooses to dispose of such waste at a different location, the Contractor shall pay a fee of $2 per ton to the Pick County Solid Waste District. Contractor shall provide all necessary documentation (including weigh tickets) on a monthly basis to Deputy Director of Operations in order to substantiate that the District is being properly paid. All solid waste so collected shall be transported to such facilities, sites and locations as permitted by the Florida Department of Environmental Protection for the receipt of waste. Sample C: The Contractor shall transport, to the facilities designated by the City, all Residential Waste, Recyclable Materials, White Goods and Yard Waste collected pursuant to this Agreement. The addresses of such facilities are as follows....
- 6 - Collection Frequency/Hours Contractor shall provide at least once per week (i) a separate collection for Residential Waste, (ii) a separate collection for Yard Waste, and (iii) a separate collection for Recyclable Materials Each separate collection shall be on the same regularly scheduled day each week as determined by the Contractor The Contractor shall perform Residential Waste collection services Monday through Friday, between 7:00AM and 7:00PM The Contractor shall not perform these services outside of the scheduled hours, or on Saturday or Sunday or federal holidays. With the Director s prior approval, days and hours of collection may be occasionally and temporarily extended due to extraordinary circumstances or other conditions, including increased volume during the last six weeks of the calendar year. All refuse will be collected once per week with collections being performed between the hours of 7:00AM and 7:00PM Monday through Friday (or on Saturday during holiday weeks or as the result of inclement weather). Routing The Contractor shall supply the County with a map of the Collection Area showing the day of the week Residential Garbage, Compostables, and Recyclables will be collected in Acceptable Containers from each sector. This map shall be generated electronically and shall also include route boundaries, route numbers, and the truck numbers for each vehicle that normally serves the route. Contractor shall provide the City with new route maps and route sheets at least 30 days prior to the implementation of curbside Solid Waste collection Minor route adjustments may be made with less than 30 days notice if mutually agreed upon by the City and Contractor. Contractor shall make a reasonable effort to minimize changes in the pickup day for residential Customers and to minimize the disruption to existing service and to the City s Recycling Agreements....
- 7 Fleet Requirements Standards: The Contractor shall have on hand at all times and in good working order sufficient vehicles and equipment as shall permit the Contractor to adequately and efficiently perform the contractual duties specified in this Agreement. All vehicles shall be properly licensed and shall be operated in compliance with all applicable state, federal, and local regulations. Solid Waste collection equipment shall be of the enclosed loader packer type, or other equipment that meets industry standards pursuant to the American National Standards Institute (ANSI) and is approved by the Director. Condition: All equipment shall be kept in good repair, appearance and in a sanitary, clean condition at all times. Fleet Age: As the City finds a relationship between the operating fleet age and the Contractor s performance and customer satisfaction, the Contractor shall be required to maintain its fleet at the average age of six years or less. Annually and as requested, the contractor shall submit to the City a schedule of their operating fleet calculating the fleet s average age. The City... shall have the right to inspect the vehicles and the purchase invoices/records of the Contractor s operating fleet. Reserve Vehicles: The Contractor shall have available reserve equipment that can be put into service within two hours of any breakdown. Such reserve equipment shall correspond in size and capacity to the equipment used by the Contractor to perform its contractual duties. Properly equipped: Each vehicle shall carry appropriate tools and supplies to clean up litter and spillage that may occur during collection and transporation. All vehicles shall be sufficiently secure so as to prevent littering of material and spilling of fluids. No vehicle shall be overloaded. Vehicle Inventory: The Contractor shall provide to the City an inventory of vehicles and equipment designated to provide the services specified in this Agreement. This inventory shall include, at a minimum, the inventory identification number, the make and model, the date of purchase, and the age of each piece of equipment and vehicle. The City reserves the right to inspect the Contractor s maintenance facility and the equipment and vehicles used by the Contractor to perform under this Agreement.
- 8 - Fleet Requirements (cont d) Contractor shall use equipment to collect and dispose of residential refuse under this contract that is totally automated and enclosed (or provided with suitable covers) to prevent spillage, leaking and/or littering of solid wastes. All collection equipment shall be maintained in appearance, proper operating condition and shall meet American National Standard Institute (ANSI 245.2) Safety Standards for Refuse Collection Equipment. Each vehicle shall be properly licensed in the State of Illinois and shall operate in compliance with all applicable federal, state and local regulations. Each vehicle shall have available at least one broom and shovel to clean up any refuse that may be spilled or otherwise scattered during collection. When alley collection is required, Contractor shall not operate equipment in alleys when doing so would unduly stress pavements.... Contractor shall have access to or possess enough additional equipment so that no delays in collection or disposal are experienced due to breakdowns of equipment. Employee Behavior/Training All persons employed shall be competent, skilled and qualified in the performance of their assigned work. All personnel shall maintain a courteous and respectful attitude toward the public. At no time shall they solicit, request or receive gratuities of any kind. The Contractor shall direct its employees to avoid loud and/or profane language during the performance of their duties. The Contractor shall discharge any employee who engages in misconduct or is incompetent or negligent in the performance of their duties or is disorderly, dishonest, intoxicated or discourteous. All field employees, including drivers and helpers, shall be thoroughly instructed as to their duties, methods of performing them, and shall receive adequate training before their start dates under this contract. Instruction shall include a briefing on their assigned routes, including how to resume an unfinished route after transporting a full load to the receiving site. In addition, all crews shall be directed to ensure that refuse containers are returned to the same location where they were found on the day of collection.
- 9 - Disputes LG and Contractor Contractor waives any dispute or claim not made in writing and received by the County s Contract Administrator within five business days of the occurrence giving rise to the dispute or claim. The claim must be in writing for a specific sum, which must be fully supported by all cost and pricing information. The Contractor may, at the County s option, be made a party to any related dispute involving another contractor. Complaint Resolution Fines/Penalties LG s right to assess penalties is based on a premise accepted and agreed by the City and the service provider and spelled out in the contract: The parties acknowledge that consistent, reliable collection, processing, and disposal services are of utmost importance to the City and that the City has considered and relied on Contractor s representations as to its quality of its service commitment in awarding the franchise to Contractor. Thus, if the Contractor fails to achieve the performance standards, the parties agree that the liquidated damage amounts set forth in Exhibit H and the process of assessing and collecting such damages are reasonable. Failure to address a customer service complaint by close of business the next regular working day: $25 per residential premises; $150 maximum per route per day for each waste stream. Failure of employees to conduct themselves in appropriate manner: $50 per incident. Commingling residential waste with yard waste, recyclable materials, tires, white white goods, etc.: $500 per incident. Failure to clean spillage: $200 per incident Failure to report incomplete routes: $1,000 per incident load. Failure to deliver material collected to the facility designated by the City: $500 per truck Failure to comply with any other term or provision of this Agreement: $100 per incident or $100 per day of continued non-compliance.
- 10 - Complaint Resolution (cont d) Notice to Contractor: Prior to assessing liquidated damages, the City shall give Contractor notice of its intention to do so Amount: The City may assess liquidated damages for each business day or event, as appropriate, that Contractor is determined to be liable under this Agreement. Timing of Payment: If [liquidated damages] are not paid within thirty days following the due date, the City may (i) deduct the amount from amounts owed to Contractor ; (ii) proceed against the performance bond ; or (iii) if the non-performance leading to assessment of liquidated damages has been persistent and not corrected despite previous notices and assessment of liquidated damages, terminate this Agreement. Specific Performance: The City shall be entitled to injunctive relief compelling the specific performance of Contractor s obligation hereunder. Right to Demand Assurances of Performance: If the City justifiably believes that Contractor s ability to perform has been placed in substantial jeopardy, the City may at its option, in addition to all of the remedies that it may have, demand from Contractor reasonable assurances of timely and proper performance of this Agreement, in such form and substance that the City believes is reasonably necessary in the circumstances. [Another approach] When reasonable grounds for insecurity arise with respect to the performance of either party, the other may in writing demand adequate assurance of due performance and, until it receives such assurance, may, if commercially reasonable, suspend any performance for which he has not already received the agreed return. Failure to provide adequate assurances in 30 calendar days, when properly demanded, shall be deemed an Event of Default.
- 11 Missed Collections To assure day-certain services and a satisfactory level of service, Contractor will provide a means for call-back service on any customer call or dwelling unit missed on the scheduled day of collection service. In the event that this call-back service is not performed by Contractor within the next working day after Contractor has received notice from the County that it has received a complaint that a dwelling unit has been missed, the County may make independent arrangements for such collection and Contractor will pay the County the cost thereof plus liquidated damages of $100 per dwelling unit not serviced. Notice by the County to Contractor shall include the address, name and telephone number, as available, of the complaining party and the date of the complaint and shall be by email transmission. Contractor shall inform the County within 24 hours by email of the written resolution of the complaint. In the event the County has not received on a timely basis notice of the resolution of any complaint, Contractor will pay liquidated damages of $75 per complaint. Should Contractor fail or neglect to make any solid waste collections as required by this Agreement within the time herein provided, the City shall, after two working days, have the right to make collection thereof and charge Contractor with the cost thereof. Financial Oversight Sample Indemnification XYZ Disposal shall indemnify, defend and hold harmless the City, its elected and appointed officers, and its employees and agents, from and against any and all claims, liability, loss, expenses, suits, damages, judgments, demands, and costs (including reasonable legal fees, expert witness fees, and dispute resolution expenses) arising out of (i) the acts or omissions of XYZ Disposal, its officers, directors, employees, agents and subcontractors, in connection with the Work; or (ii) any accident, injury or death to persons, or loss of or damage to property, or fines and penalties which may result, in whole or in part, by reason of acts or omissions of XYZ Disposal, its officers, directors, employees, agents and subcontractors.
- 12 - General Contract Oversight Sample: A schedule of activities and detailed procedures related to the effective implementation and operation of the Contract will be developed by the Contractor and the City after the Contract is signed and prior to beginning collections under the Contract. This shall be known as the Operations Plan. This plan shall include the procedures and activities listed below and shall include completion dates for each activity: - City monitoring of Contractor collection activities; - Measuring and applying rewards/penalties for Contractor activities; - Customer and Contractor appeals relating to billings, services and/or payments; - Designation of implementation leads by both City and Contractor; - Orientation of collection staff including route coordination/cooperation with City staff. Contaminated loads The Contractor is responsible for sorting Recyclable Materials, separating and taking all materials acceptable and leaving only those materials that are inappropriate or contaminated. The Contractor is responsible, whenever possible, for separating improperly commingled waste materials, collecting those that are in compliance with the City Code, and leaving only those that cannot be reasonably sorted or separated. The Contractor may decline to collect materials or to collect containers not in compliance with the City Code, and may decline to collect materials that are improperly commingled or are, under the City Code, inappropriate. The Contractor shall not commingle within the same vehicle for transportation to the City s designated facility, Residential Waste with Yard Waste, Recyclable Materials and/or Tires, White Goods or other inappropriate materials. Additionally, Contractor shall not commingle within the same vehicle, for transportation to the City s designated facility, waste materials collected from Residential Premises pursuant to this Agreement and other waste materials collected by Contractor pursuant to other agreements or arrangements, regardless of whether other waste materials are collected inside or outside the boundaries of the Contractor s Service Area.
- 13 Due Diligence Sample: Contractor represents that it is fully informed regarding (a) the area to be serviced, (b) the conditions that will or may be encountered or that affect or may affect the performance of the services, (c) the character, quality and quantity of services to be performed as described in the attached specifications and other contract documents, (d) the necessary labor, equipment and materials to be furnished, and (e) all applicable federal, state and local laws. Contractor shall obtain all necessary licenses and permits at its own expense. Education Educating the public concerning both waste and recycling collections and promoting both waste reduction and recycling are critical to the success of the County s solid waste management program. The County accepts primary responsibility for developing a citywide public education and promotion program, and the Contractor shall participate in implementing such a program. At the County s request, but no more than once per year, Contractor shall distribute to Residential Premises informational, promotional, and educational materials in the form of flyers or other forms of media, as agreed upon by the parties, to provide general information about the County s waste management services and recycling events and to increase awareness of hazardous materials. Subject to the County s prior review and express authorization, Contractor shall distribute to Residential Premises collection information or educational materials about collection services for Residential Waste, Bulky Waste, Yard Waste, White Goods, Tires, and Recyclable Materials with the delivery of a Recyclable Material container. During the first 12-month period of this engagement, Contractor shall be required to allocate or spend $30,000... on program-related public education activities that have received prior written approval from the City. In each subsequent year this amount shall be increased by the same percentage, if any, that Rates are increased. The City and Contractor may mutually agree to perform joint public education activities using all or some of the annual public education budget. Any unspent funds at year-end shall be deducted from amounts otherwise due to the Contractor;
- 14 - provided, however, upon request by Contractor, the City may authorize Contractor to carry forward up to $5,000 of unspent funds to the following calendar year. By September 1st of each year, Contractor must supply a public education plan for the following year. The City shall review and respond to the proposal within 45 days.... Contractor shall not perform any work on public education without prior written approval from the City. All materials shall be submitted in writing for review and approval.... All public education materials must be printed on 100% recycled paper with at least 50% post-consumer recycled content with soy based inks. All public education materials must include the City s recycling logo and the City s recycling hotline telephone number.... All public education materials must be printed or otherwise displayed in the English and Spanish languages, and materials must be made accessible to those with disabilities... at Contractor s sole cost and expense. Contractor s public relations activities cannot be applied to the public education budget. Sample C: Two (2) times per year, the Contractor shall produce and distribute educational materials, brochures, advertisements and other materials to City residents and businesses, specifying acceptable and unacceptable materials for collection and recycling and otherwise educating the residents as to the collection services to be provided by the Contractor.
- 15 - Experience Questionnaire (Responses under oath) 1. How many years has your organization been doing business as a waste and/or recyclables collection contractor under your present business name? 2. What is the waste and recyclables collection experience of the owners, principals, officers or partners in your organization? 3. With respect to work performed by your organization within the past seven years, has any customer or client terminated a contract or other engagement or sought alternative dispute resolution or a legal remedy based on your organization s failure to meet its obligations? If so, please fully explain. 4. Has any owner, principal, officer or partner of your organization ever been an owner, principal, officer or partner of another entity that failed to meet its obligations under agreement or contract? If so, state the name of the individual and the name of the entity, and please fully explain. 5. Has your organization or any owner, principal, officer or partner thereof been subjected to any enforcement action by any federal, state, county or local government department or agency with respect to the organization s or individual s conduct or activity? 6. For what public sector entities has your organization provided waste or recyclables collection in the past seven years? For each city, county, district, authority or other entity, please provide the name and contact information of the individuals who supervised or administered your performance. END