City of Lawrence
Recyclables Processing and Marketing Service Agreement
THIS AGREEMENT ("Agreement") is made this day of 2013 by and between City of Lawrence, Kansas ("City"), and N.R. Hamm Quarry LLC. ("Contractor"). For the good and valuable consideration set forth herein, the City and Contractor agree as follows:
1. Definitions
For the purpose of this Agreement, the following terms shall have the following meanings:
City: City means the City of Lawrence, Kansas.
Contractor: Contractor means N.R. Hamm Quarry LLC.
MRF or Facility: The material recovery facility where Contractor's operation will be conducted including the site, building, equipment, and operations where Recyclable Materials delivered pursuant to this Agreement are accepted, processed, stored, and otherwise prepared for marketing.
Accept: Accept, Accepting, or Acceptance means the receipt of Recyclable Materials by the Contractor at the MRF upon delivery thereto by or on behalf of the City.
Acceptable Materials: Acceptable Materials means Recyclable Materials that are received by the Contractor and Accepted for Processing, as more fully set out in Schedule 2.
Actual Blended Value: Actual Blended Value shall have the meaning set forth on Schedule 3.
City's Service Area: City's Service Area means the incorporated and unincorporated areas within the political boundaries of the City. The City's Service area may change from time to time.
Excluded Materials: Excluded Materials means radioactive, volatile, corrosive, flammable, explosive, biomedical, infectious, bio-hazardous, regulated medical or hazardous waste, toxic substance or material, as defined by, characterized or listed under applicable federal, state, or local laws or regulations. Excluded materials also means any materials which materially impair the strength or the durability of the Contractor's structures or equipment; create flammable or explosive conditions in Contractor's facilities; or contain chemical or other properties which are deleterious or capable of causing material damage to any part of Contractor's property, its personnel or the public.
Force Majeure: Force Majeure means an occurrence not within the control of the affected party and which, by the exercise of due diligence, such party is unable to prevent or overcome, and shall include fires, floods, hurricanes, storms, tornadoes, lightning or other exceptional weather conditions, explosions, strikes, work stoppages, acts of God or the public enemy, mechanical breakdowns, wars, blockades, insurrections, riots, enactment of statutes, laws or regulations, acts of governmental bodies or casualties beyond the control of the parties.
Holidays: Holidays are those days identified in Schedule 1 attached to this agreement and made a part of this Agreement by this reference. The City reserves the right to designate additional Holidays.
Market: Market or Marketing means the sale of Recyclable Materials for the purpose of recycling, reuse, or other beneficial use.
Material Revenue or Market Revenue: Material Revenue or Market Revenue means all revenue (positive or negative) received by the Contractor from the sale of Recyclable Materials Processed under this Agreement.
Process: Process, Processed, or Processing means the preparation by the Contractor of the Single-Stream Recyclable Materials for Marketing.
Process Residue: Process Residue means the non-recoverable by-product of Processing. Process Residue does not include Unacceptable Materials.
Recyclable Material(s): Recyclable Material(s) means those materials as set forth in Schedule 2 and may be modified in accordance with Section 5 of this Agreement.
Rejected Material(s): Rejected Material(s) means those materials which are rejected by the Contractor because they contain greater than twenty percent (20 %) by weight of Unacceptable Materials, or alternatively, any amount of Excluded Materials.
Quarterly Report: Quarterly Report means the regular report to the City by the Contractor within thirty (30) days of the end of March, June, September, and December each year during the term of this Agreement and covering certain aspects of MRF operations and other matters as are set forth in this Agreement.
Single-Stream: Single-Stream means commingled Recyclable Materials collected by the City from single-family and multi-family residents’ curb-side rolling storage carts or City designated residential recycling dumpsters, which are delivered to the Contractor by the City all mixed together in a single truck compartment. Single-Stream specifically excludes Recyclable Materials from commercial sources. Commercial Single-Stream Recyclable Materials will be subject to future agreements.
Unacceptable Materials: Unacceptable Materials means materials which are not Recyclable Materials, recyclables not accepted in the City’s recycling program, or any contaminated recyclable materials which are any recyclable materials which have come in contact with Unacceptable Materials or Excluded Materials, as more fully set forth in Schedule 2.
2. Term of Agreement
The initial term of this contract shall be seven (7) years commencing on the date the Facility opens to the public, with an option for two (2) three-year renewals by mutual agreement of the parties. Any renewals must be made by the parties six (6) months prior to the end of the initial term and six (6) months prior to the end of each renewal term thereafter. Any additional renewals may be negotiated upon mutually agreeable terms.
3. Periodic Meetings and Performance Review
The Contractor and the City shall meet at least semi-annually and as often as monthly if necessary to troubleshoot any problems, discuss the status of the delivery and processing of Recyclable Materials, confer on potential efforts to improve quantities and quality, and evaluate the status of future recycling activity.
The Contractor and City shall meet and review program performance after the third year, including but not limited to market conditions for each material; operational and processing issues; methods to improve the quality or quantity of recyclable materials; methods to enhance the revenue potential of the materials collected; and any program modifications. The parties may mutually agree to amend the Agreement and schedules herein based upon the results of periodic meetings or the performance review meeting.
The Contractor and City shall meet in the first two years of performance of this Agreement at least semi-annually to discuss the following issues:
· The City’s sustainability goals, including full integration of citywide recycling, including but not limited to University of Kansas facilities, event recycling, current City recycling programs, drop off sites, food waste processing, Lawrence schools, and multi-family/apartments.
· Commercial and source separated materials recycling programs.
· A construction and demolition materials waste processing program to divert recyclable construction and demolition material from the landfill.
· Other types of recycling programs.
4. Contractor Services
The Contractor shall provide the MRF, labor, management, and all related services necessary to Accept, Process, store, and Market Recyclable Materials delivered to the MRF by the City. The services by the Contractor shall be provided in accordance with this Agreement.
The MRF shall be located at 26195 Linwood Road, Lawrence, Kansas, 66044. The Contractor is responsible for finding a suitable alternative replacement location if for any reason that location is unavailable. Any alternative location must be mutually agreed to by the parties.
The Contractor’s proposal to the City’s Request for Proposal is attached as an addendum and incorporated by reference to this Agreement. However, the terms of this Agreement supersede any and all terms of the Contractor’s proposal and the City’s Request for Proposal which are in conflict with the Agreement or not specifically referenced herein.
5. Collection and Acceptance of Recyclable Materials
The City shall, during the Term of this Agreement and any extension thereof, maintain its collection of residential Recyclable Materials for delivery to the Facility either through use of its own equipment and personnel, through a requirement on a subcontractor to deliver Recyclable Materials to the Facility, or through any other agreement with a third party. Any subcontract or agreement with another party shall include a requirement that the subcontractor or other party (including any party which may purchase the City’s equipment) deliver Recyclable Materials to the Facility for the remainder of the Term hereof or any extension.
The City shall use MRF for processing all Single Stream Materials. In no event shall any Single Stream Recyclable Materials intentionally be diverted to any location other than the Facility during the term of this Agreement and any extension thereof. However, the City will be permitted to conduct certain event-based recycling programs which have been previously arranged by the City (i.e. Limited document shredding events and electronic recycling events). Any event-based recycling programs which have not been previously conducted by the City at the time of this Agreement must be mutually agreed to by the City and the Contractor, if any Single Stream Recyclable Materials from such events are to be diverted to any location other than the Facility.
The Contractor shall accept Recyclable Materials delivered as a Single-Stream meeting the specifications as set forth on Schedule 2 and any other terms of this Agreement. The processing capacity of the MRF shall be sufficient to provide recycling services as set forth in this Agreement.
If at any time during the term of this Agreement the City or Contractor desire to add or remove Recyclable Materials, the City and Contractor shall in good faith negotiate the proposed addition or removal of Recyclable Materials and any increase or decrease of Processing Fees. At such time as the parties mutually agree to add or remove additional materials, Contractor and the City will be given up to one hundred (180) days from the time of the agreement to adjust collection and processing accordingly.
6. Unloading of Recyclable Materials at the MRF
The City will be required to unload or mechanically dump Recyclable Materials at the MRF. Contractor shall use its best efforts to ensure that City deliveries receive preference over other vehicles delivering materials to the MRF.
7. Storage and Processing of Recyclable Materials
The Contractor shall store and Process Recyclable Materials in accordance with its permits and as required by law.
8. Processing Equipment
The MRF shall contain Processing equipment necessary to prepare Single-Stream Recyclable Materials for Market.
9. Operation of the MRF
A. Contractor shall be solely responsible for all aspects of managing and operating the MRF. Management activities shall include: Accepting Recyclable Materials in an efficient manner; Processing Recyclable Materials; storing Processed material; scheduling MRF activities, staffing, and training; record keeping and report preparation; arranging Marketing and transportation of Recyclable Materials; arranging Process Residue and other refuse removal; maintenance of the MRF; obtaining and complying with all necessary permits, approvals, and licenses from governmental agencies; MRF inspections, tours and visits; and all other activities required to assure the performance of services required under and in accordance with this Agreement.
B. The Contractor shall maintain trained staff at the MRF in sufficient size to efficiently operate the MRF. Management at the MRF shall have full authority to make operating decisions during normal working hours. Contractor shall arrange to have key maintenance and operating personnel on call at all times.
C. The Contractor shall provide and maintain all sanitary and safety accommodations for the use and protection of its employees or visitors as may be necessary to provide for their health and welfare and to comply with all applicable federal, state and local codes and regulations.
D. The Contractor shall designate a Facility manager to provide single-point contact with the City's designated representative regarding Facility-related issues. The Contractor shall ensure that qualified personnel are assigned to operate and maintain the Facility at all times. The Contractor shall pay in a timely manner all persons doing work or furnishing skill, tools, machines, materials, insurance premiums, equipment or supplies in and about the performance of this Agreement and shall hold the City harmless from, and indemnify the City for any claims relating to the payment of such items.
E. The Contractor shall be responsible for maintaining the MRF at the sole expense of the Contractor. The Contractor shall maintain the MRF in good working order and shall develop and maintain a program of preventive maintenance to ensure minimum down time.
F. The Contractor shall be responsible for any and all expenses incurred to construct, operate and maintain the MRF. The MRF shall be open for business and capable of receiving Recyclable Materials Tuesday through Friday plus any necessary Saturdays following these holidays: New Year’s Day, Thanksgiving, and Christmas. In order to accommodate the City’s collection schedule, the days in which the MRF is open for business shall be subject to change upon mutual agreement. The MRF shall be closed on the holidays designated in the Holiday Schedule set forth in Schedule 1. Hours for receiving shall minimally be from 1:00 p.m. to 4:00 p.m. Additional hours may be proposed and mutually agreed upon by the City and the Contractor. The MRF and City single stream service shall commence on or about October 15, 2014.
G. The Contractor will inspect all inbound materials to help ensure that the load does not contain any hazardous materials or other materials that are not accepted at the MRF. The City shall use reasonable efforts in its collection practices, including but not limited to residential container inspections, to cause only Recyclable Materials to be delivered to the MRF and to minimize the quantities of Unacceptable Materials or Excluded Materials
H. Truck loads delivered to the MRF which contain Unacceptable Materials may be rejected by the Contractor if the entire truck load contains greater than twenty percent (20%) by weight of Unacceptable Materials or alternatively, any Excluded Materials. Upon the rejection of any whole or partials loads containing greater than twenty percent (20%) by weight of Unacceptable Materials or alternatively, any Excluded Materials, the Contractor shall immediately notify the City of such Rejected Material. Such notice shall occur on the same day as load was delivered, or if the rejection occurs after normal business hours, the morning following the delivery of the rejected load. The City reserves the right to have a representative inspect the load for contamination and if the City is unable to send a representative, photographs shall be provided to the City showing load contaminants and truck number within one (1) business day of the occurrence. Rejected whole or partial truckloads shall be set aside inside the Contractor's facility for not more than two working days and shall promptly be removed by the City. Loads which are not removed by the City within two days shall be disposed of by the Contractor at the expense of the City, in accordance with the rates set in Schedule 3. The Contractor shall provide notice to the City when Contractor disposes of a rejected load. Upon a mutual agreement between the parties, the Contractor may process Rejected Material for an additional fee to be agreed upon by the parties.
I. All Process Residue, Rejected Materials, and Unacceptable Materials shall be disposed of at Hamm Sanitary Landfill. The City shall be responsible for tipping fees and related transportation costs for Rejected Materials as indicated on Schedule 3.
J. The Contractor shall provide one (1) certified truck scale and a minimum of one (1) safe, accessible unloading area. The Acceptable Recyclable Materials shall be weighed as a whole on the truck to the nearest twenty-pound (20lb) increment and then unloaded on a tipping floor. City shall be provided scale tickets which indicate the date, time, truck number, gross weight, tare weight and net weight of each truckload of materials delivered. Manually entered data shall be kept to a minimum and marked "MANUAL" when such a scale ticket is generated. The City shall be provided with a monthly report of all deliveries and total weights.
K. The Contractor shall be responsible for receiving Recyclable Materials from the City during any planned or unanticipated shutdowns, maintenance, or renovations at the MRF. The Contractor shall provide reasonable notice to the City of any alternative procedures for receiving Recyclable Materials during such planned events. The Contractor shall be responsible for providing acceptable contingency planning for receiving Recyclable Materials during unanticipated events.
L. The Contractor shall be responsible for all storage and processing of Acceptable Materials and all costs associated with storage and processing of Acceptable Materials received from the City.
M. The Contractor shall provide, install, and operate all receiving, sorting, processing, conveyance, and storage equipment necessary for handling Single-Stream Recyclable Materials received at the MRF. Such equipment must be installed and operated according to applicable regulatory requirements and the equipment must have a demonstrated ability to perform reliably in materials processing applications for Single-Stream Recyclable Materials.
N. The City shall have the right to have a representative enter upon Contractor's premises to monitor the operation of the Facility. Unless otherwise mutually agreed to by the parties on a case by case basis, the City’s representative shall provide 24 hours notice to the Contractor, shall only be allowed on the Contractor's premises during normal business hours, and shall follow all the Contractor’s safety procedures.
O. Title to and liability for any excluded materials and any loads rejected by the Contractor remain with the City at all times. Title to Recyclable Materials provided by City to Contractor is transferred to Contractor upon Contractor's receipt or collection unless otherwise provided in this Agreement.
P. The City and the Contractor acknowledge the possibility that severe weather may from time to time disrupt collections and the operation of the MRF. The Contractor shall use best efforts to maintain and clear access areas and loading areas at the MRF during severe weather events. In the case of severe weather conditions, the City and the Contractor may mutually agree to certain changes in the collection of recyclable materials and additional hours of operation at the MRF as set out in this Agreement.
Q. Ownership and risk of loss to Recyclable Materials shall pass to Contractor upon Contractor’s receipt or collection of Recyclable Materials at the MRF. Ownership and risk of loss to Recyclable Materials shall remain with Contractor until the Recyclable Materials ownership and risk of loss is transferred by the Contractor. After the ownership and risk of loss passes to Contractor, Contractor shall be liable to City for any and all Recyclable Materials lost, damaged, or scavenged for the sum of funds that would have been paid to City in accordance with the provisions of this Agreement.
10. Materials Marketing and Revenue Sharing
The Contractor shall process the Single-Stream Recyclable Materials to meet the market specifications generally accepted in the market. The Contractor shall pay the City a share of the revenue as set out in Schedule 3 and Schedule 4.
The Contractor shall provide the City with access upon request to copies of current marketing agreements and contracts for all materials, for primary and secondary markets for each commodity within 30 days of the execution of the Contract. As such agreements change, expire and are renegotiated, access to current and revised copies of all agreements shall be provided to the City.
The Contractor is responsible for Marketing all recyclable materials. Upon request by the City, the Contractor is expected to identify the companies that buy material. Recyclable Materials shall not be transported to a landfill for disposal, except as may otherwise be agreed to in this Agreement.
11. Records, Reports, and Periodic Meetings
A. Records shall be created and maintained with sufficient detail to fully substantiate the basis for payments and to meet the reporting and other requirements of this Agreement. All records shall be in a form acceptable to the City. A general ledger accounting system shall be maintained by the Contractor in such detail necessary to fully substantiate the calculation of payments to the City. The general ledger accounting system shall conform in all respects to Generally Accepted Accounting Principles (GAAP). Records of all incoming loads of Recyclable Materials to the facility shall be maintained. For each incoming load from the City, the Contractor shall record the date, time, weight, carrier name and vehicle number, and whether the load was accepted or rejected. For all rejected loads, whether rejected in part or in full, the Contractor shall record the reason for rejection and adjustments made to the tonnage. The Contractor shall retain copies of all weigh tickets. The Contractor shall provide the City with access to all weight tickets upon request.
B. In October and March of each year, the Contractor, at its own expense, shall perform an audit to determine the actual composition of Recyclable Materials delivered by the City by commodity types. The City shall be permitted to be on-site during the audit and upon request shall receive copies of all information and documents used in the audit. In performing the audit, Recyclable Materials will be processed by individual commodity from City vehicles in a quantity sufficient to provide a representative sample of the Recyclable Material delivered to the MRF. After the load is sorted, the Contractor will weigh each commodity including residuals, and record the weights using facility scale. These weights will be the basis for the composition of the Materials used in the Schedules. This composition information shall be the basis for ongoing Recyclable Materials by type until modified by additional composition testing. Unless the parties mutually agree otherwise, additional audits requested by the City will be conducted at the expense of the City, in the manner prescribed in this Section. Unless the parties mutually agree otherwise, additional audits performed by the Contractor will be conducted at the expense of the Contractor, in the manner prescribed in this Section. If the audit composition yields more than fifteen percent (15%) Process Residue from the total volume of Recycled Materials, the City shall take necessary steps to reduce Process Residue below fifteen percent (15%). Further, the City shall pay Contractor for actual disposal costs of Process Residue above fifteen percent (15%) of total volume of Recycled Materials. Such disposal costs shall be determined in the same manner as the costs for the disposal of Rejected Materials disposed of by the Contractor described in Section 9 of this Agreement.
C. The results of the audit shall include: (1) percent by weight of each recyclable commodity by grade as collected from the City; (2) relative change compared to the previous year’s composition; and (3) a description of the methodology used to calculate the composition, including number of samples, dates weighed, and route(s) used for sampling. Each year the Contractor shall provide a copy of the materials composition analysis within the annual report due to the City by January 31st, as described in Section 12.
D. Prior to performing any audits as discussed in Section 11B, the Contractor shall provide the City a written description of the methodology or processes for determining the composition of Recyclable Materials at the MRF. The methodology or processes for the audits shall follow generally accepted industry practices for an automated Single Stream processing system. The written description shall be submitted to the City and shall be updated by the Contractor immediately after any changes to the methodology or processing methodologies used by the Contractor.
E. The Contractor shall maintain weight-based records of estimated Processed Recyclable Materials production by material type, Processed Recyclable Materials inventory by material type, and Process Residue production, (For record keeping purposes only, Unacceptable Materials and Process Residue shall be reported together as residue.) The Contractor shall maintain records of all outgoing loads of Recyclable Materials (whether Processed or not) from the Facility. For each outgoing load the Contractor shall record the date, time, category of material, carrier name and vehicle number, tare weight, and destination. The Contractor shall retain weight receipts where Process Residue and Unacceptable Materials are disposed.
12. Contractor Submission of Monthly and Annual Reports
to the City
Contractor shall submit a monthly statement to the City. The monthly statement shall include:
· The quantity of each Recyclable Commodity marketed;
· Any payments owed to or by the City; and
· The quantity of residue land-filled during the period.
· Date, truck number, scale ticket number, and net weight for all incoming loads per day;
· Monthly total tonnage by type of recycling commodity received for processing;
· Monthly totals of tons of residuals (by weight) processed;
· Any rebates or revenue share due to the City;
· Information regarding rejected loads, including the date, time, and disposition of the Materials after rejection
Contractor shall submit an annual report to the City, by January 31st of each year of the contract, providing information to the City regarding the following information from the previous year.
· A copy of any and all materials composition analysis or audits for the previous year
· Record of rejected loads;
· Equipment added or removed to the system;
· Complaints, accidents, incidents, or downtime that occurred; and
· A summary of marketed materials and identifies of major purchasers;
13. Public Education
Public education of the residential Single-Stream recycling program at the MRF shall be the responsibility of the City. Contractor and City shall cooperate and coordinate public education activities to increase recycling rates in Lawrence and the quality of the recovered material. Contractor shall provide financial assistance to the City for development of content and distribution of educational materials for the residential Single-Stream recycling program at the MRF as follows: $20,000 in initial contract year, $10,000 in year two, and either i)$5,000 or ii) $1.00 per ton of Recyclable Materials processed at the MRF with Process Residue excluded, whichever is less, in each subsequent contract year. Contractor and City shall mutually agree on educational materials prior to production and delivery.
Contractor shall be responsible for providing a reasonable number of Facility tours for educational purposes. The Contractor's responsibility for tours is anticipated to include:
· Tours for Elected Officials and City Staff as necessary
· Tours for schools;
· Tours upon request from the media;
· Others upon reasonable request.
14. Compliance with Applicable Laws and Requirements
The Contractor shall comply with all applicable laws and requirements pertinent to the processing of Recyclable Materials.
15. Insurance Requirements
Contractor shall secure and maintain, throughout the duration of this contract, insurance (on an occurrence basis unless otherwise agreed to) of such types and in at least such amounts as required herein. Contractor shall provide certificates of insurance and renewals thereof on forms approved by the City. Should any of the below described policies be cancelled before the expiration date thereof, notice will be delivered in accordance with policy provisions.
The Contractor shall, at all times, keep fully insured, at its own expense, all persons employed by it in connection with the performance of its obligations hereunder in full accordance with the laws of the State of Kansas relating to Workers' Compensation Insurance and shall hold the City free and harmless and shall indemnify the City from all liability from any claim that may arise by reason of injuries to any employee of the Contractor or its agents who may be injured while performing work or labor necessary to carry out the provisions of this Agreement.
The Contractor shall at all times during the term of this Agreement, keep in force and effect insurance policies, at its own cost and expense. The Contractor shall, at all times, keep fully insured, at its own expense, all persons employed by it in connection with the performance of its obligations hereunder in full accordance with the laws of the State of Kansas relating to Workers' Compensation Insurance and shall hold the City free and harmless and shall indemnify the City from all liability from any claim that may arise by reason of injuries to any employee of the Contractor or its agents who may be injured while performing work or labor necessary to carry out the provisions of this Agreement.
All responsibility for maintaining insurance on any premises or structures owned or operated by the Contractor remains solely with the Contractor.
Contractor, upon receipt of notice of any claim in connection with the contract, shall promptly notify the City, providing full details thereof, including an estimate of the amount of loss or liability.
Contractor shall monitor and promptly notify the City of any reduction in limits of protection afforded under any policy listed in the Certificate (or otherwise required by the contract) if the Contractor’s limits of protection shall have been impaired or reduced to such extent that the limits fall below the minimum amounts required herein. Contractor shall promptly reinstate the original limits of liability required hereunder and shall furnish evidence thereof to the City.
General Liability:
General Aggregate: $500,000
Personal & Advertising Injury: $500,000
Each Occurrence: $500,000
Policy must include the following:
I) Broad Form Contractual/Contractually Assumed Liability
II) Independent Contractors
III) Name City of Lawrence, Kansas as “Additional Insured”.
Automobile Liability:
1) Policy shall protect the Contractor against claims for bodily injury and/or property damage arising from the ownership or use of all owned, hired and/or non-owned vehicles and must include protection for either:
i) Any Auto
OR
ii) All Owned Autos (if any); Hired Autos; and Non-Owned Autos.
2) Limits
i) Each Accident, Combined Single Limits
ii) Bodily Injury and Property Damage: $500,000.00
3) Name City of Lawrence, Kansas as “Additional Insured”.
Workers' Compensation and Employer's Liability :
1) This insurance shall protect the Contractor against all claims under applicable state workers' compensation laws. The Contractor shall also be protected against claims for injury, disease or death of employees which, for any reason may not fall within the provisions of a workers' compensation law. The policy limits shall not be less than the following:
2) Workers' Compensation: Statutory Employer's Liability:
i) Bodily Injury by Accident $155,000 each accident
ii) Bodily Injury by Disease $500,000 policy limit
iii) Bodily Injury by Disease $155,000 each employee
iv) If Contractor has no employees, a waiver form provided by the City must be executed.
Industry Ratings:
The City will only accept coverage from an insurance carrier who offers proof that it:
1) Is licensed to do business in the State of Kansas;
2) Carries a Best's policyholder rating of A- or better;
AND
3) Carries at least a Class VIII financial rating.
OR
Is a company mutually agreed upon by the City and Contractor.
Certification of insurance coverage shall be on the City's standard Certificate of Insurance form or on forms acceptable to the City.
16. City Responsibilities
The City shall have responsibility for the following activities or roles:
- Collect and deliver or contract for the collection and delivery of Single-Stream Recyclable Materials to the Facility for the Term of this Agreement commencing on or about October 15, 2014 and continuing through the term of this Agreement and any extensions.
- Provide recycling collection services for all residents living in single-family dwellings and all residents living in multi-family dwellings;
· Use reasonable efforts to minimize Unacceptable Materials collected and delivered to the Facility;
· Receive and dispose of materials collected by the City but rejected by the Contractor, unless otherwise agreed to by the Parties as permitted in this Agreement;
· Provide public education efforts;
· Review records as appropriate;
· Promote the MRF as the primary outlet for any local recycling programs or haulers of recyclable materials;
· Use best efforts to implement best in class waste collection practices to minimize residuals and reduce the amount of residual material landfilled; and
· Coordinate and cooperate with Contractor on quality of Single-Stream Recyclable Materials delivered to the MRF.
17. Loss of Markets for Recyclable Products
18. Correction of Deficiencies in Agreement Performance
In the event the Contractor shall fail to conform with the provisions of this Agreement, including but not limited to, all obligations and guarantees of the Contractor, the City shall give written notice to the Contractor describing the deficiencies or non-conformity. Upon receipt of said notice, the Contractor shall have ten (10) business days to provide the City with written assurance of its intent to correct such deficiencies or non-conformances, including a work plan describing the manner in which the same will be corrected and a reasonable schedule for making such corrections.
Except as specifically provided for herein, in no event shall Contractor be responsible for any special, indirect, consequential, punitive or exemplary damages of any type in contract, tort (including negligence, joint or several, or strict liability) or otherwise, arising under this Agreement.
19. Nondiscrimination
Contractor agrees that:
A. Contractor shall observe the provisions of the Kansas Act Against Discrimination and shall not discriminate against any person in the performance of work under the present Agreement because of race, sex, religion, color, disability, national origin ancestry, age, sexual orientation, or gender identity;
B. In all solicitations or advertisements for employees, Contractor shall include the phrase, "equal opportunity employer," or a similar phrase to be approved by the Kansas Human Rights Commission (Commission);
C. If Contractor fails to comply with the manner in which Contractor reports to the Commission in accordance with the provision of K.S.A. 44-1031 and amendments thereto, Contractor shall be deemed to have breached the present Agreement and it may be canceled, terminated or suspended, in whole or in part, by the City;
D. If Contractor is found guilty of a violation of the Kansas Act Against Discrimination under a decision or order of the commission which has become final, Contractor shall be deemed to have breached the present Agreement and it may be canceled, terminated or suspended, in whole or in part, by the City;
E. Contractor shall include the provisions of paragraphs (1) through (4) above in every sub-contract so that such provisions will be binding upon such sub-contractors; and
F. Contractor shall abide by the Kansas Age Discrimination in Employment Act (K.S.A. 44-1111 et seq.) and the applicable provision in the Americans With Disabilities Act (42 U.S.C. 12101 et seq.) as well as all federal, state, and local laws, ordinances and regulations applicable to this project and to furnish any certification required by any federal, state or local governmental agency in connection therewith.
20. Compliance with Laws
The Contractor shall conduct its operations under the Contract in compliance with all applicable Federal, state and local laws and regulations.
Prior to commencement of performance of services hereunder, the Contractor and City shall make itself familiar with all statutes, ordinances, rules and regulations having application to the services it provides hereunder and, during the term of this Agreement, the Contractor and City shall at all times comply with all such statutes, ordinances, rules and regulations in the carrying out of its obligations hereunder. The Contractor shall be solely responsible for any fines, penalties or forfeitures occasioned by its failure to adhere to, or its violation of, any such statutes, ordinances, rules or regulations with regard to Contractor services.
The Contract must comply with the applicable provisions of the Kansas Cash Basis Law, K.S.A. 10-1101 et seq. The City is obligated only to make payments under the Contract as may be lawfully made from funds budgeted and appropriated for the purposes as set forth in the Contract during the City’s current budget year. In the event the City does not so budget and appropriate the funds, the parties acknowledge and agree that they shall be relieved from all obligations, without penalty, under the Contract. To the extent that the City does so budget and appropriate funds for the purposes set forth in the Contract, the obligations of the parties shall remain as provided herein.
21. Governing Law
This Agreement shall be interpreted, construed and enforced in accordance with the laws of the State of Kansas.
22. Notice
Except as otherwise herein provided, all notices required or permitted to be served by either party on the other shall be in writing and shall be deemed given when hand delivered or when mailed by certified mail to the principal office of the party to which notice is given, as follows:
If to Contractor: If to City:
Charlie Sedlock City Counselor
N.R. Hamm Quarry, LLC City Hall
609 Perry Place 6 East 6th Street, PO Box 708
Perry, KS 66073 Lawrence, KS 66044
23. Assignment
Neither party shall assign this Agreement or any part of it to any other party without written consent, which consent shall not be unreasonably withheld or delayed.
24. Termination
In addition to and not in substitution or limitation of any other right of the City hereunder to terminate this Agreement, the City shall have the option to terminate this Agreement at any time for cause. Cause includes any breach by Contractor of any provision or provisions of this Agreement or the insolvency of the Contractor. The City shall exercise its option to terminate this Agreement under this provision as follows: (1) the City shall give written notice to the Contractor of its intent to terminate the Agreement and shall set forth therein the reason or reasons for such termination; (2) the Contractor shall have thirty (30) days following the receipt of such notification to remedy the cause for termination set forth in such notice; and (3) if the Contractor shall fail, within such thirty (30) days, to remedy such cause, the City shall have the sole right to terminate the Agreement.
In addition to and not in substitution or limitation of any other right of the Contractor hereunder to terminate this Agreement, Contractor shall have the option to terminate this Agreement at any time for cause. Cause includes any breach by City of any provision or provisions of this Agreement or the insolvency of the City. Contractor shall exercise its option to terminate this Agreement for cause as follows: (1) Contractor shall give written notice to the City of its intent to terminate the Agreement and shall set forth therein the reason or reasons for such termination; (2) the City shall have thirty (30) days following the receipt of such notification to remedy the cause for termination set forth in such notice; and (3) if the City shall fail, within such thirty (30) days, to remedy such cause, the Contractor shall have the sole right to terminate the Agreement.
The City and Contractor shall not have the authority to terminate this Contract for convenience until October 15, 2021. After that date, the City and Contractor shall each have the authority to terminate the Contract for convenience, or at will. Either party shall exercise its option to terminate this Agreement for convenience, or at will, after that date by providing the other party with one hundred and eighty (180) days written notice.
Upon the termination of this Agreement, under the provisions of this section or otherwise, the parties shall have no further obligations to the other, provided, however, that termination shall not abrogate, impair, release or extinguish any debt, obligation or liability of one party to the other hereunder which may have accrued prior to such termination, including, but not limited to, any such debt, obligation or liability which was the cause of termination or arose out of such cause and a party shall have the right to withhold any amounts then due or to become due the other hereunder for application against any such debt, obligation, or liability.
No right or remedy conferred upon a party under the terms of this Agreement shall be exclusive of any other right conferred upon a party under the terms of this Agreement or by law or equity. All rights and remedies conferred upon a party under the terms of this Agreement or by law or equity are cumulative and no single exercise of any such right or remedy shall preclude the exercise of any other such right or remedy with respect to the same or any other breach by the other.
25. Agreement Documents.
This Agreement, along with all exhibits or schedules attached hereto or referenced to herein contain the entire agreement of the parties and no amendment or modification of this Agreement shall be effective unless in writing and signed by the parties hereto. If there is a conflict between the provisions of this Agreement and the above-referenced documents incorporated herein by reference, the provisions of this Agreement shall control.
26. Indemnification. by Contractor
The Contractor shall hold the City, its agents, officials, and employees free and harmless and shall indemnify the City from loss from each and every suit, liability, expense, damage or claim, or demand of whatever nature, made on behalf of or by any person or persons, for any negligence, misconduct, or omission on the part of the Contractor, its employees, agents, and officials.
27. Indemnification by City
The City shall hold the Contractor, its agents, officials, and employees free and harmless, and shall indemnify Contractor from loss from each and every suit, liability, expense, damage or claim, or demand of whatever nature, made on behalf of or by any person or persons, for any negligence, misconduct, or omission on the part of the City, its employees, agents, and officials. Neither party shall be liable to the other for indirect, incidental, consequential or special damages, including loss of use or profits.
28. Uncontrolled Circumstances
If either party is rendered unable, in whole or in part, by Force Majeure, to carry out its obligations under this Agreement, it is agreed that upon such party's giving notice and reasonably full particulars of such Force Majeure in writing to the other party as soon as possible after the occurrence of the cause relied on, then the obligations of the party giving such notice, shall, so far as they are affected by Force Majeure, be suspended during the continuance of any inability so caused, but for no longer period, and such cause shall, as far as possible, be remedied with all possible dispatch.
Should any statute of the United States of America, the State of Kansas, or any rule, regulation or executive order of any governmental entity having jurisdiction, enacted or imposed after the date of this Agreement materially affect the cost or ability of the Contractor to perform the services required to be rendered under the terms of this Agreement, the Contractor may submit to the City a written request to meet and negotiate changes in the terms and conditions of this Agreement, Said written notice must specify the statute, ordinance, rule, regulation or order which has materially affected the Contractor and shall also be accompanied by supporting documentation of the materiality of the effect of the same upon the Contractor. Not less than thirty (30) days from receipt of said request, the parties shall meet and commence negotiations in good faith to determine the necessity or desirability of modifying this Agreement.
29. Illegal Provisions
If any provisions of this Agreement shall be declared illegal, void or unenforceable, the other provisions shall not be affected but shall remain in full force and effect.
30. Relationship of Parties
Nothing contained herein shall be construed as creating an employer-employee relationship, a partnership, or a joint venture between the City and the Contractor.
The
Contractor is, and shall remain during the term of this Agreement, an
independent contractor with respect to the performance of its obligations
hereunder and in its relationship to the City.
Nothing in this
Agreement is intended, nor should it be interpreted or construed, as in any way
establishing a partnership between the parties hereto or as constituting the
Contractor as the agent, representative or employee of the City.
31. No Guarantee
Nothing in this Agreement is intended and shall not in any event be interpreted or construed as any promise, guaranty, warranty or representation of delivery to the Contractor of any particular quantity of Recyclable Materials provided however all Recyclable Materials collected by the City and other haulers in City shall be delivered to the Facility for the Term of this Agreement.
Contractor’s agreement to invest significant amount of capital is contingent upon representations and the City’s willingness to work in good faith with Contractor in administering the Agreement.
32. Performance Bond
The Contractor shall provide a Performance Bond in an amount equal to 25% of the annual Contract amount within 14 calendar days after notification of award. The Performance Bond serves as security for the faithful performance of all of the Contractor’s obligations under the Contract. The Performance Bond shall be issued by a solvent company authorized to do business in the State of Kansas, and shall meet any other requirements established by law or by the City pursuant to applicable law.
The Performance Bond shall remain in effect throughout the term of the Contract and shall be renewed for each respective extension.
33. Conflict of Interest
Contractor shall immediately inform the City, if any conflict of interest or potential conflict of interest should arise in the future.
34. Tipping Fee Increment
The City agrees to pay Contractor $1.00 per ton tipping fee increase for all materials disposed at the Contractor’s landfill for each 5,000 ton decrease in volume from the City’s 2012 landfill volume. Conversely, the City shall be due an amount equal to $1.00 per ton tipping fee decrease for all materials disposed at the Contractor’s landfill for each 5,000 ton increase in volume from the City’s 2012 landfill volume.
IN WITNESS WHEREOF, the parties have executed this Agreement the day of March, 2013
APPROVED this day of March , 2013
CITY OF LAWRENCE, KS COMMISSIONERS CONTRACTOR
LAWRENCE, KANSAS N.R. HAMM QUARRY, LLC.
Robert J. Schumm, Mayor Gary Hamm, Chief Operations Officer
Date:
ATTEST:
Jonathan M. Douglass, Lawrence City Clerk