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HomeMy WebLinkAboutAgenda - 03-17-2009 - 4g ORANGE COUNTY BOARD OF COMMISSIONERS ACTION AGENDA ITEM ABSTRACT Meeting Date: March 17, 2009 Action Agenda Item No. 4- - SUBJECT: Renewal.of Urban Curbside Recycling Services Contract DEPARTMENT: Solid Waste Management PUBLIC HEARING: (YIN) No ATTACHMENT(S): INFORMATION CONTACT: Proposed Urban Curbside Recyclable Pam Jones, 245-2652 Materials Collection Services Contract Gayle Wilson, 968-2885 Addendum Urban Curbside Recyclable Materials Collection Services Contract effective October 1, 2005 PURPOSE: To continue the contract for the provision of Urban Curbside Recycling Collection Services effective October 1, 2005. BACKGROUND: The Urban (or In-Town) Curbside Recycling Program provides weekly collection services to single-family homes within the Towns of Carrboro, Chapel Hill, and Hillsborough. The Department of Solid Waste Management has provided contracted curbside recycling services since 1988. The contracts for rural and urban curbside have been awarded by competitive bidding process renewed as needed, provided the service was acceptable and funds were appropriated. In June 2001 the Rural and Urban Curbside Contracts were merged into a single Curbside Recycling Contract, and the contract was reissued to Waste Industries for two years with a two-year extension (through June 2005). On June 1, 2005 the County de-privatized Rural Curbside Recycling Collection services and began the provision of Rural Curbside Recycling Collection as a County-operated program. In October of 2005, after a competitive bidding process, the County awarded a contract to Waste Industries, LLC of Durham for the provision of urban curbside recycling services. This contract authorized a 42-month initial term with a two year extension. This proposed addendum engages Waste Industries for the two-year extension through March 2011 as allowed for in the contract approved three and a half years ago. FINANCIAL IMPACT: The total projected cost for the Urban Curbside Recycling Program contract for FY 2009/10 is $890,100. These funds will be included in the Manager's Recommended FY 2009-10 operating budget in the Solid Waste Management enterprise fund. RECOMMENDATION(S): The Manager recommends the Board approve the contract addendum with Waste Industries to continue the provision of Urban Curbside Recyclable Materials Collection Services and authorize the Chair to sign the agreement, subject to final review by Staff and the County Attorney. 2 STATE OF NORTH CAROLINA ADDENDUM TO AGREEMENT FOR THE COUNTY OF ORANGE URBAN CURBSIDE RECYCLABLE MATERIALS COLLECTION SERVICES Addendum to that certain Agreement effective October 1, 2005 between The County of Orange, on behalf of its Department of Solid Waste Management, (hereinafter "County"), and Waste Industries, LLC of Durham, North Carolina (hereinafter "Contractor") for the provision of residential curbside recycling collection services to single family residents, and adjacent small businesses, schools, churches, and pedestrian recycling stations within residential areas, located within the Town limits of Carrboro, Chapel Hill and Hillsborough,NC. In consideration of the mutual promises and conditions set forth herein, the County and Contractor agree to amend the Agreement as follows: Definitions: Definitions of specific terms referred to throughout this Agreement shall be amended as follows: Fiber: the subset of Recyclable Materials including newspapers and their inserts,glossy magazines, and phonebooks, Old Corrugated Cardboard(OCC),and Mixed Paper(OMP). Recyclable Materials: (also to be known as"recyclables")All newspapers and their inserts,glossy magazines,phonebooks, corrugated cardboard,mixed paper,glass bottles and jars, aluminum beverage cans,steel food cans,aluminum foil,aluminum trays,plastic bottles#1,#2,#3,#4,#5,#6, and#7, empty aerosol cans,and other agreed on materials that are the subject of this Contract. Term of Agreement: Section 2 of the Agreement is amended as follows: The renewal term of the Agreement will be for two (2) years unless otherwise agreed by the parties: the period from April 1, 2009, through March 31, 2011 (hereafter referred to as initial term) assuming that funds are appropriated annually and the performance of Contractor is satisfactory. The level of performance expected is defined in this Addendum and the associated Agreement. This Contract may be extended and/or expanded following the initial term for a period of two (2) additional years assuming that the Urban Curbside Recycling Program is successful, that County approves continuing the program, and that funding is approved annually through the approval of the overall Department of Solid Waste Management budget. Terms of this Contract may change if the change is agreed to by Contractor and County. Contractor has no rights and will acquire no rights to notice or in the County Urban Recycling Program or in recyclables (as defined in this Contract) beyond those contained in this Contract. Termination of this Contract resulting from default by Contractor or non renewal at the expiration of its term or any extension terminates all rights of Contractor with respect to the collection of 3 recyclables, notwithstanding any law purporting to create a right in Contractor to "displacement compensation"named as such or identified by any other name. Costs of Services Section 4 of the Agreement is amended as follows: a) Urban Curbside Program The cost of service for Urban Curbside Recycling for April 1, 2009 through June 30, 2009 shall be$3.77 per Residence per month. The cost of service for Urban Curbside Recycling for Fiscal Year 2009-2010, July 1, 2009 through June 30, 2010, shall be $3.97 per Residence per month. Residence count shall be the number of units eligible for service in Carrboro, Chapel Hill, and Hillsborough plus any serviceable Non-Residences as described in Section 4, subsection b of this Contract. b) Recycling Service to Non-Residences The cost of providing curbside recycling service to small businesses, churches, and other institutions that are adjacent to a curbside recycling route will be determined as follows: the cost will be equal to the cost of providing service to a Residence multiplied by the number of sets of Recycling Bins assigned to the small business, church, or institution (each two bin set shall be considered the equivalent of one(1)Residence). Example 1: During Fiscal Year 2009-2010, to service a preschool which is assigned four(4) curbside recycling bins and is located in a residential area within one of the Towns, the County will be billed at the rate of 2 x$3.97 per month or$7.94 per month. The cost of providing curbside recycling service to pedestrian recycling stations that are nearby or adjacent to a curbside recycling route will be determined as follows: the cost will be equal to five(5)times the cost of providing service to a Residence. Example 3: During Fiscal Year 2009-2010 to service a pedestrian recycling station located at Carrboro Town Hall, County will be billed at the rate of 5 x $3.97 per month or $19.85 per month. c) Cost of Services for Future Fiscal Years The monthly cost of collection per Residence in FY 2010-2011 shall not exceed $3.97 per Residence multiplied by a factor determined by comparing the Annual measurement of the Bureau of Labor Statistics Consumer Price Index for Garbage and Trash Collection for 2009 to the Annual value of the same index for 2008. The index used shall be the US city average and shall not be seasonally adjusted. If the Bureau of Labor Statistics makes the Consumer Price Index for Garbage and Trash Collection available for the South Urban Region,then this region- specific measurement of the index will replace the US city average for the purpose of determining future costs. If County and Contractor mutually agree to extend this Contract beyond the initial term, actual costs for future years will be provided in the contract extension agreement. The formula for negotiating future costs is to be as follows: 2 4 The cost per Residence for any year shall not exceed the cost per Residence for the previous year multiplied by a factor determined by comparing the Annual measurement of the Bureau of Labor Statistics Consumer Price Index for Garbage and Trash Collection for the year ending that December and comparing it to the annual value of the same index for the year prior to that. The index used shall be the US city average and shall not be seasonally adjusted. For example: the cost per Residence for FY 2011-2012 shall be allowed to increase above the FY 2010-2011 price by a factor determined by the change in the Annual value of the Bureau of Labor Statistics Consumer Price Index for Garbage and Trash Collection as measured for 2010 and compared to the Annual value for 2009. d) Expansion or Reduction in Number of Residences Serviced The Contract may be expanded or reduced at the option of County to include additional or fewer residential Residences and adjacent small businesses, schools, institutions, churches, and pedestrian recycling stations. If legislation or ordinances are passed which significantly impact the program participation, the cost of service may be renegotiated between the Contractor and County. e) Fuel Cost Adjustment No fuel cost adjustment, fuel surcharge, or other energy recovery fee shall be assessed or included when determining the cost of service provided under this Agreement. In the event of an extraordinary change in the cost of fuel, be that an increase or a decrease, the cost of service may be renegotiated if the County and Contractor can mutually agree to terms and conditions. Contractor's Representative Section 7 of the Agreement is amended as follows: Waste Industries' representative for the purposes of this Agreement shall be: Richard Johnson Branch Manager 148 Stone Park Court Durham,NC 27703 Ph. (919) 596-1363 Contractor shall provide notice to County, as provided for in this Contract, of a change of its Representative. Frequency and Time of Collection Section 8 subsection a and subsection b shall remain unchanged. Section 8 subsection c of the Agreement is created as follows: c) Rerouting of Scheduled Services County and Contractor agree that if it is determined to be mutually beneficial the service schedule of individual streets may be changed to accommodate more efficient collection of 3 5 Recyclable Materials. Any such reroute shall not change the collection frequency, and each Residence serviced by the Urban Curbside program will maintain weekly collection frequency. County shall not unreasonably withhold agreement to conduct reroutes, however County intends to limit the occurrence of any significant reroute (one that impacts more than 5% of serviced Residents) to no more than once every two years. County and Contractor agree to plan a major reroute of service schedule during the summer of 2009. County and Contractor must agree on the reroute and service schedule before this reroute can begin. Contractor will at its own cost bear the full expense of an extensive public outreach campaign to notify impacted Residents of new service schedule. This public outreach campaign will include the posting of signs at key intersections in the impacted areas, the direct mailing of a notice of schedule change to each impacted household, and the purchase of print advertisement in local news outlets informing the public of the new schedules. County will have the opportunity to approve and sign off on the final text for each of the above listed features of the public outreach campaign. Processing Center Section 14 of the Agreement is amended as follows: Contractor may maintain a Processing Center at its facilities located in the City of Durham,the City of Raleigh or at other locations. This Processing Center may be a Contractor owned and operated facility, or may be that of a third party. All Recyclable Materials collected under this Agreement may be processed at the Processing Center. Title to Recyclable Materials brought to the Processing Center shall be with Contractor, and Contractor shall have the responsibility for the sale of such Recyclable Materials. Storage of Recyclable Materials at the Processing Center shall be limited to that which can be properly contained pursuant to permits issued by the responsible jurisdiction. Contractor shall notify County,in writing,not less than thirty(30)days prior to any relocation of the Processing or Drop-Off Center. If County elects to operate its own recycling processing center, or if County elects to have the recyclables collected under this Contract diverted to any other existing facility, the recyclables collected in this program must be directed by Contractor to that processing center whereupon they become property of County. Any adjustment in the cost of service deemed necessary by Contractor because of a contended reduction in net revenue of Contractor as a result of this change in destination and ownership of Recyclable Materials, or as a result of the need for the Contractor to make equipment modifications as the result of the redirection of recyclables, shall be negotiated, in good faith, between the Contractor and County. Notices Section 26 of the Agreement is amended as follows: All notices required or contemplated by this Contract shall be personally served or mailed,postage prepaid and return receipt requested to the parties as follows: To: Orange County Department of Solid Waste Management Attn: Mr. Robert Taylor PO Box 17177 Chapel Hill,NC 27516-7177 4 6 To: Waste Industries Attn: Mr. Richard Johnson 148 Stone Park Court Durham,NC 27703 Full Force and Effect Except as amended by this Addendum, the Agreement shall remain in full force and effect. 5 7 IN TESTIMONY WHEREOF, the parties have hereunto set their hands and seals the day and year first above written. COUNTY: ATTEST: BY: Valerie Foushee, Chair Donna S. Baker, Clerk to the Board CONTRACTOR: WITNESS: Signature Signature Printed Name and Title Printed Name and Title This instrument has been pre-audited in the manner required by the Local Government Budget and Fiscal Control Act. Finance Director 6 8 STATE OF NORTH CAROLINA ORANGE COUNTY I, , a Notary Public for said County and State, do hereby certify that Donna S. Baker personally appeared before me this date and acknowledged that she is the Clerk to the Board of Commissioners of Orange County, and that by authority duly given and as the act of Orange County,the foregoing instrument was signed in its name by Valerie Foushee,Chair, sealed with its official seal, and attested by herself as its Clerk. WITNESS my hand and official seal,this the day of 2009. Notary Public My Commission expires: STATE OF COUNTY OF I, , a Notary Public, do hereby certify that personally appeared before me this day and acknowledged the due execution of the foregoing Agreement. WITNESS my hand and official seal,this the day of 2009. Notary Public My Commission expires: 7 9 North Carolina Agreement for Orange County Urban Curbside Recyclable Materials Collection Services CURBSIDE RECYCLING AGREEMENT between The County of Orange and Waste Industries,LLC. • This agreement, entered into this the 1st day of October 2005, by and between the County of Orange, North Carolina, on behalf of its Department of Solid Waste Management, (hereinafter "County"), and Waste Industries,LLC. of Durham,North Carolina(Contractor) for the provision of residential curbside recycling collection services to single family residents, and adjacent small businesses, schools, churches, and pedestrian recycling stations within residential areas, located within the Town limits of Carrboro,Chapel Hill and Hillsborough,NC; WHEREAS,Waste Industries desires to provide Recycling Collection Services as defined herein; NOW,THEREFORE,The County of Orange and Waste Industries do hereby agree as follows: SECTION 1 Definitions For purposes of this Contract,the following terms shall apply: Containers: the subset of Recyclable Materials including glass bottles and jars, aluminum beverage cans, steel food cans,plastic bottles#1,#2,#3,#4,#5,#6,and#7,and empty aerosol cans. County: "County"means Orange County,NC,the administrator of this recycling program managed • by its Department of Solid Waste Management. Fiber: the subset of Recyclable Materials including newspapers and their inserts, glossy magazines, and phonebooks. Fiber may also include Old Corrugated Cardboard (OCC) and Mixed Paper (OMP), but at present OCC and OMP are not currently accepted by the Urban Curbside Recycling Program. Fiscal Year(FY): shall refer to the time period beginning July 1st of any year and ending June 30th of the following year. County budget cycle and curbside recycling planning shall be based on this time period. Handicap/Disabled: shall refer to citizens of the Towns who, for the purposes of this Contract,will receive recycling service at their back door or some place other than curbside. County staff will make the determination as to which citizens are eligible for Handicap collection. Said determination will be based upon citizen need, as judged by County staff, and shall generally be based upon the citizen being eligible to receive an handicap parking permit from the NC Division of 10 Motor Vehicles. Additionally, Handicap / Disabled services shall generally not be granted to Residences with able-bodied adults in the household. Orange County: "Orange County" shall refer to the area within the geographic boundaries of Orange County,NC. Recycling Bin: (also known as Recycling Container) Recycling bins made of rigid plastic construction to be used by residents to set out their Recyclable Materials and provided by County or future landfill administrative government/organi72tion. County presently provides Residences with a fourteen (14) gallon Recycling Bin, though County reserves the right to switch to using sixteen (16), or eighteen (18) gallon Recycling Bins. Contractor shall also accept Recyclable Materials from any rigid container similar in shape and size to the Recycling Bin provided by County. All Recycling Bins issued to Residents are provided by and are the property of County. Contractor will not be expected to deliver bins to Residents or replace damaged bins. Recycling Collection Services: Those services to be performed by Contractor as follows, except where otherwise noted in this agreement: (a)the collection of Recyclable Materials from residential areas specifically designated by the parties; (b) processing of Recyclable Materials which include the sorting and preparation of Recyclable Materials for marketing at the Processing Center; (c) marketing of the Recyclable Materials; and (d) keeping accurate and thorough l records of the amount of materials and number of Residences collected weekly. Recyclable Materials: (also to be known as "recyclables") All newspapers and their inserts, glossy magazines, phonebooks, glass bottles and jars, aluminum beverage cans, steel food cans, plastic bottles#1,#2,#3, #4,#5,#6,and#7, empty aerosol cans, and other agreed on materials that are the subject of this Contract. Residence: A single-family home, duplex,triplex, or otherwise adjoined townhome, or an approved church, school, small business, institution, or small apartment complex within residential sectors of the Towns or Orange County. The occupant of a Residence shall be referred to as a Resident. Segregated Materials:Recyclable Materials placed in or adjacent to Recycling Bin. Set Out:A Set Out shall be defined as having occurred when a Resident places one or more Recycling Bins for the Resident's Residence at the curb for collection. When counting Set-Outs for measuring participation and productivity, Contractor shall count one Set-Out for each Residence participating in the program. This count will be based on the number of households or Residences participating, not on the number of Recycling Bins collected. For example, one (1) Residence placing two(2)Recycling Bins at the curb shall be considered one(1) Set-Out. Successor: In the case of a transfer of landfill administration,the future government or organization that administers the Orange County Landfill. Towns: Unless otherwise stated, "Towns" shall mean the Towns of Carrboro, Chapel Hill, and Hillsborough, which are incorporated municipalities within Orange County, NC and includes as much of the Town of Chapel Hill that is located outside of Orange County. Urban Curbside Recycling Program (also to be known as In-Town Curbside): that part of this curbside recycling program intended to provide weekly collection service to Residences located within the municipal boundaries of the Towns. 2 11 SECTION 2 Term of Agreement The term of the Contract will be for forty-two (42) months unless otherwise agreed by the parties; the period from October 1, 2005, through March 31, 2009 (hereafter referred to as initial term) assuming that funds are appropriated annually and the performance of the contractor is satisfactory. The level of performance expected is defined in this contract. This Contract may be extended and/or expanded following the initial term for a period of two (2) additional years assuming that the Urban Curbside Recycling Program is successful, that County approves continuing the program,and that funding is approved annually through the approval of the overall Department of Solid Waste Management budget. Terms of this Contract may change if the change is agreed to by Contractor and County. Contractor has no rights and will acquire no rights to notice or in the County Urban Recycling Program or in recyclables (as defined in this Contract) beyond those contained in this Contract. Termination of this Contract resulting from default by Contractor or non renewal at the expiration of its term or any extension terminates all rights of Contractor with respect to the collection of recyclables, notwithstanding any law purporting to create a right in Contractor to "displacement compensation"named as such or identified by any other name. SECTION 3 Performance Bond Contractor shall provide County with a Performance Bond in the amount of One Hundred percent (100%) of the first full year's projected contract price, or $609,444. This Performance Bond shall be in effect for the duration of the Contract period. The form and substance of the Performance Bond must be approved by County before the effective date of execution of this Contract. All Performance Bond revisions and renewals must also be approved by County prior to their effective date. SECTION 4 Costs of Service a) Urban Curbside Program The cost of service for Urban Curbside Recycling for July 1,2005 through March 31,2006 shall be $3.98 per Residence per month. The cost of service for Urban Curbside Recycling for April 1, 2006 through June 30, 2006 shall be $2.97 per Residence per month. Residence count shall be the number of units eligible for service in Carrboro, Chapel Hill, and Hillsborough plus any serviceable Non-Residences as described in Section 4, subsection c of this Contract. b) Expanding Collection to Include Additional Materials County may, with Contractor's approval, expand the list of Recyclable Materials to include Mixed Paper (OMP) and Corrugated Cardboard (OCC). The monthly cost per Residence of adding the additional materials will be as follows: $0.20/Residence to expand collection to 3 12 include OCC, $0.15/Residence to expand collection to include OMP; and $0.33/Residence if and when both materials are added. c) Recycling Service to Non-Residences The cost of providing curbside recycling service to small businesses, churches, and other institutions that are adjacent to a curbside recycling route will be determined as follows:the cost will be equal to the cost of providing service to a Residence multiplied by the number of bins assigned to the small business,church,or institution. Example 1: During Fiscal Year 2005-2006,to service a preschool which is assigned three(3) curbside recycling bins and located in a residential area within one of the Towns,County will be billed at the rate of 3 x$2.97 per month or$8.91 per month. Example 2: During Fiscal Year 2005-2006, to service a church and located in a residential area within one of the Towns that is assigned two (2) curbside recycling bins, County will be billed at the rate of 2 x$2.97 per month or$5.94 per month. The cost of providing curbside recycling service to pedestrian recycling stations that are nearby or adjacent to a curbside recycling route will be determined as follows: the cost will be equal to five(5)times the cost of providing service to a Residence. Example 3: During Fiscal Year 2005-2006 to service a pedestrian recycling station located at Carrboro Town Hall, County will be billed at the rate of 5 x $2.97 per month or $14.85 per month. d) Cost of Services for Future Fiscal Years The monthly cost of collection per Residence in FY 2006-2007 shall not exceed $2.97 per Residence multiplied by a factor determined by comparing the Annual measurement of the Bureau of Labor Statistics Consumer Price Index for Garbage and Trash Collection for 2005 to the Annual value of the same index for 2004. The index used shall be the US city average and shall not be seasonally adjusted. If the Bureau of Labor Statistics makes the Consumer Price Index for Garbage and Trash Collection available for the South Urban Region, then this region- specific measurement of the index will replace the US city average for the purpose of determining future costs. If County and Contractor mutually agree to extend this Contract beyond the initial term, actual costs for future years will be provided in the contract extension agreement. The formula for negotiating future costs is to be as follows: The cost per Residence for any year shall not exceed the cost per Residence for the previous year multiplied by a factor determined by comparing the Annual measurement of the Bureau of Labor Statistics Consumer Price Index for Garbage and Trash Collection for the year ending that December and comparing it to the annual value of the same index for the year prior to that. The index used shall be the US city average and shall not be seasonally adjusted. For example: the cost per Residence for FY 2007-2008 shall be allowed to increase above the FY 2006-2007 price by a factor determined by the change in the Annual value of the Bureau of Labor Statistics Consumer Price Index for Garbage and Trash Collection as measured for 2006 and compared to the Annual value for 2005. 4 13 e) Expansion or Reduction in Number of Residences Serviced The Contract may be expanded or reduced at the option of County to include additional or fewer residential Residences and adjacent small businesses, schools, institutions, churches, and pedestrian recycling stations. If legislation or ordinances are passed which significantly impact the program participation, the cost of service may be renegotiated between the Contractor and County. f) Fuel Cost Adjustment County encourages Contractor to utilize a renewable clean burning alternative fuel such as biodiesel or a biodiesel blend such as B-20 while providing service to County under this Contract. The Fuel Cost Adjustment will become effective on April 1, 2006. No Fuel Cost Adjustment will be made prior to this time. County and Contractor agree that fuel cost represents a significant portion of the costs to Contractor in providing the services outlined in this Contract. In order to help adjust for the financial impact of the changes in the cost of fuel, a Fuel Cost Adjustment shall be in place as follows: Base Line Fuel Usage shall be measured and determined annually, and shall be defined as the number of gallons, consumed each month by the Urban Curbside Recycling Collection Vehicle Fleet as operated by Contractor in providing services to County under this Contract. Base Line Fuel usage for Year 1 is 1,800 gallons of diesel fuel per month. Base Line Fuel Usage shall be reset annually on July 1, and shall be determined by a verifiable audit of the actual usage of fuel by the fleet of trucks dedicated to servicing the work under this Contract. Contractor shall produce Fuel Usage Documentation of the actual fuel usage for the months of April, May, and June, and the Average Monthly Fuel Usage of the fleet shall be calculated from this information. Fuel Usage Documentation shall be provided for each vehicle, and shall include for each vehicle the type of vehicle (including year, make/model, and engine type), the typical function of that vehicle, the number of miles driven, the number of hours operated, and the amount of fuel consumed during the time in question. If the fuel usage of any vehicle as determined from the above information (typically miles per gallon) exceeds commonly accepted industry standard for that vehicle type, then County and Contractor will negotiate a fuel usage value to be substituted for the exceptional value when calculating the Base Line Fuel Usage, and this substituted fuel usage value will be set to industry standard unless otherwise agreed to by both County and Contractor. The Average Monthly Fuel Usage, determined as stipulated above, shall become the Base Line Fuel Usage used to determine the Fuel Cost Adjustment for the next four quarters ending September 30, December 31, March 31, and June 30. Base Line Fuel Cost shall be determined annually. Base Line Fuel Cost for Year 1 is $2.30 per gallon of diesel fuel. Base Line Fuel Cost for future years shall be reset annually on July 1,and will be based on the average per-gallon cost of diesel fuel as paid by Contractor during the months of April, May and June, and verified by submittal of copies of actual fuel invoices. 5 14 For each quarter ending March 31, June 30, September 30, and December 31, Contractor shall submit verifiable copies of fuel invoices. The Actual Per Gallon Fuel Cost of diesel fuel as paid by Contractor shall be determined by computing a straight line average from the invoices for the quarter in question(total cost of diesel fuel/total gallons of fuel purchased), and as calculated must be agreed upon by County and Contractor. If and only if the Actual Per Gallon Fuel Cost for any quarter is either more than one hundred ten percent (110%) or less than ninety percent (90%) of the Base Line Fuel Cost for that year, then a Fuel Cost Adjustment shall be made. If the Actual Per Gallon Fuel Cost is neither less than 90% nor more than 110%of the Base Line Fuel Cost,then no Fuel Cost Adjustment shall be made for that quarter. Fuel Cost Adjustments shall be made as follows: If the Actual Per Gallon Fuel Cost is less than 90%of the Base Line Fuel Cost,the difference between the Base Line Fuel Cost and the Actual Per Gallon Fuel Cost shall be multiplied by the Base Line Fuel Usage and then multiplied by three (3) months. The resultant dollar amount shall be considered the Fuel Cost Adjustment and shown as an itemized credit on the invoice for service and shall be deducted by County when it pays the invoice. If the Actual Per Gallon Fuel Cost is more than 110% of the Base Line Fuel Cost, the difference between the Base Line Fuel Cost and the Actual Per Gallon Fuel Cost shall be multiplied by the Base Line Fuel Usage and then multiplied by three (3) months. The resultant dollar amount shall be considered the Fuel Cost Adjustment and shown as an itemized additional charge on the invoice for service, and shall be paid by County as stipulated in Section 16, Compensation for Services. SECTION 5 Scope of Services County's Request for Statements of Qualification (RFQ), and Request For Proposal (RFP) number 5112, and any associated Addendum, as well as Contractor's Statement of Qualification and Proposal dated April 14, 2005, are incorporated herein by reference. Any conflict between the terms of this Contract and the terms of any of the RFQ, the RFP or the April 14, 2005 Proposal will be governed by the terms of this Contract . Contractor shall perform Recycling Collection Services as follows: Contractor shall collect and remove for marketing or reuse all properly prepared Recyclable Materials which are placed in or adjacent to approved Recycling Bins at the curb, roadside (in the case when there is no curb), or other agreed upon location in the case of Handicap / Disabled collection (for further details about proper preparation of Recyclable Materials, see Section 13 of this Contract). Contractor may use whatever collection style deemed beneficial when collecting Recyclable Materials to the extent that newspaper, magazines, and telephone books must be sorted from the Containers at the curb, and must be transported to the processor in a separate compartment of the collection vehicle. Contractor may not utilize"Single-Stream"style collection. 6 15 County may, with Contractor's approval, add additional materials to the recycling stream,including Mixed Paper(OMP) and Corrugated Cardboard(OCC). If these materials are added to the stream of collected Recyclable Materials, the monthly cost per Residence may be adjusted by the amounts stipulated in Section 4. Upon servicing Recycling Bins, Contractor will place emptied Bins in such a manner as to ensure that emptied Bins do not interfere with the flow of vehicle or pedestrian traffic. Additionally, Contractor will ensure that emptied Recycling Bins do not block access to mail boxes or driveways. Bins shall not be thrown or tossed, and Contractor shall take care not to damage Bins or personal property of serviced Residences. Collection routes will be run on a once per week collection schedule. The Recycling Collection Services performed may be expanded or contracted as the budget and other constraints permit. Contractor shall assist in collection effectiveness by ensuring that any materials spilled in the process of recycling collections, or any overflowing Recyclable Materials, are collected and placed in the truck. Collectors shall carry a broom and dustpan to sweep up any broken glass or litter that occurs in the process of recycling. Collection personnel shall also pick up any recyclables under or immediately next to the Recycling Containers, when the rest of that Residence's recyclables have been properly contained. When and if County receives a report of spilled recyclables, and County determines that said spillage of materials occurred due to action or inaction of Contractor, County may require Contractor to clean said spilled recyclables on the same business day that the report was received by County. Failure to clean up verifiably spilled recyclables on the day of report of said spillage may result in penalty fines being levied by County. County may assess a $25.00 penalty per day for each verifiable occurrence of spilled recyclables not cleaned up by Contractor by 5:00 pm of the day of notification. A single verifiable occurrence of spilled recyclables shall be defined as any one pile of materials (i.e. a single mound of broken glass) or any one isolated area where paper or plastic bottles may have been blown from a truck. For example, if there are two(2) piles of broken glass on any one street, separated by a distance of ten (10) or more feet, this shall count as two (2) occurrences of spilled recyclables. One time each fiscal year the Contractor may request that the County clean up the spilled recyclables,and in this case County may deduct the cost of providing this service from the invoice for Recycling Collection Services performed by Contractor. The cost to the Contractor for having County provide clean-up services will be $50.00 per hour,with a minimum charge of one hour. Contractor's collection vehicles must also carry a spill kit to manage any spills or leaks of vehicular fluids, such as oil, hydraulic fluid, transmission fluid, fuel etc. Contractor will manage both small and large spills. Any spills or leaks will be the responsibility of the Contractor, including the management of subsequent cleanup and abatement and compensation for damages if necessary. Where there are improperly prepared recyclables, unacceptable materials placed in the bins, or Recyclable Materials placed in an unapproved container, Contractor shall leave form notices for the Resident explaining the problem. Said notice forms shall be referred to as "Oops Tags." Contractor shall be responsible for providing the Oops Tags, including costs associated with design, printing, and distribution. The form and content of the Oops Tags must be approved by County. The Oops Tag notice must contain instructions describing how to properly prepare Recyclable Materials for recycling and how to contact County for further information about recycling programs. 7 16 SECTION 6 County's Representative The County's Representative,for purposes of this Agreement,shall be: Robert Taylor Orange County Department of Solid Waste Management PO Box 17177 Chapel Hill,NC 27516-7177 Ph. (919)968-2788 County shall provide notice to Contractor, as provided for in this Contract, of a change in its Representative. SECTION 7 Contractor's Representative Waste Industries' representative for purposes of this Agreement shall be: Lee Bodenhamer,III Branch Manager 148 Stone Park Court Durham,NC 27703 Ph. (919)933-9388 Contractor shall provide notice to County, as provided for in this Contract, of a change in its Representative. SECTION 8 Frequency and Time of Collection a) Curbside Collection Contractor shall pass each Residence or service point once each week and collect materials set at the curb (or at other agreed upon location in the case of a Handicap / Disabled citizen). Collection shall take place no earlier than 7:00 AM and no later than 7:00 PM. b) Holiday Schedule i. Holiday Schedule for Fiscal Year 2005-2006: Contractor will not provide recycling service on Thanksgiving Day, Thursday November 24, 2005. Those recycling services regularly provided on Thursday will be provided on Saturday November 26t. Friday November 25th will receive collection services as usual. 8 17 Contractor will provide all recycling service as regularly scheduled for the week of Monday December 19, 2005 through Friday December 23, 2005 and the week of December 26,2005 through December 30,2005. This (above) is the holiday schedule for the entire 2005-2006 Fiscal Year, other holidays not listed will not be observed. ii. Holiday Schedule for Future Fiscal Years(beyond FY 2005-2006) Holiday schedules for future years will be negotiated annually and determined by County and Contractor. Holidays with no collection may be Independence Day, Labor Day, Thanksgiving Day, Christmas Day, New Year's Day, Martin Luther King Jr. Holiday, Good Friday,and Memorial Day. In case of cancellation,Holiday week schedules may be shifted to have collections a day late following the holiday(i.e., if holiday falls on Thursday, Thursday's collection will be on Friday,Friday's collection will be on Saturday). No changes will occur if a holiday falls on a weekend. iii. Complaint Calls During a Holiday On days when County offices are closed (due to Orange County Government holiday) and Contractor is providing recycling service, County may place the Contractor's office phone number (933-9388 or 596-1363) on its automated telephone system. This will be done in order to allow the citizens of Orange County to contact Contractor directly about issues concerning recycling collection and service. When and if Contractor receives complaint calls, these calls will be logged and handled under the normal complaint procedure (see Section 12). SECTION 9 Recycling Bins and Contents The title to the Recycling Bins is with the County. Bins may be 14, 16, or 18 gallons in volume at the County's choice. Title to all of the Recyclable Materials within the Recycling Bins shall be with the Contractor once the Bin is placed on the curb. The County may choose to distribute a second Recycling Bin to each Residence to facilitate Dual-Stream collection. Alternatively, the Contractor may, with County's approval and at no cost to the County, provide an additional Recycling Bin to each Residence to facilitate Dual- Stream collection. Any Recycling Bins distributed by Contractor with this purpose in mind shall meet the specifications of the County-provided Recycling Bins, and shall become property of the County once distributed. Contractor may prosecute any person or persons found stealing or contaminating the contents of Recycling Containers. This prosecution will have full cooperation of County. 9 18 SECTION 10 Transportation and Temporary Storage of Recyclable Materials Contractor shall transport the collected Recyclable Materials to its Processing Site(s). Contractor shall take title to the Recyclable Materials upon placement in the Recycling Container by Residents and shall be responsible for the sale of such recyclable materials and all of the proceeds of the sales. The newspaper, glossy magazine and telephone book portion of the Fiber stream shall not be commingled with Containers without express permission of County. County shall not grant permission for the commingling of these two portions of the recycling stream except in the case of emergency or otherwise dire circumstances. No uncontaminated Recyclable Materials collected by Contractor shall be landfilled. Landfilling or incinerating recyclables shall result in Contractor paying County a $500 penalty per incident of uncontaminated Recyclable Materials to a landfill or incinerator. SECTION 11 Labor and Costs Contractor shall, at its sole cost and expense, except as otherwise provided herein, furnish all labor and equipment required to perform curbside collection of Recyclable Materials pursuant to this Contract. SECTION 12 Procedures and Penalties for Missed Pick-Ups/Failure to Collect All calls relating to missed pick-ups or other collection problems shall be logged by County's Department of Solid Waste Management and will be available for review by Contractor. a) Individually Reported Missed Collections In case of a missed pick-up reported by County or a Resident (late set-outs excluded), Contractor shall collect the Recyclable Materials from such point by 5:00 pm of the working day following written or faxed notification of said missed pick up if point was accessible and not blocked. If Contractor contends that the pick-up was missed because of a late set-out, the Contractor has the burden of proving to County the late set-out to avoid penalties. If containers which were recorded by County as not collected by Contractor are not collected by 5:00 pm of the working day(including Monday through Friday, but not Saturdays, Sundays, or designated holidays) following written or faxed notification of Contractor by County, County may asses a penalty equal to $25 per Residence per day not collected. To avoid the penalty, Contractor must provide legitimate explanation for non-collection before 5:00 pm of the day following the non-collection report if the container was unable to be collected for a certain reason. b) Instances of Five(5)or more Missed Collections in Any One Area If County receives a report of five (5) or more missed collections in one area on a working day that is followed by a non-working day, Contractor will provide collection by 5:00 pm the 10 19 following day, excluding holidays. For example if County receives notification of five or more missed collections on one street, or in one neighborhood at 4:30 pm on a Friday and notifies Contractor of the reported misses by close of business on that Friday, Contractor will provide collection by 5:00 pm on Saturday (assuming that Saturday is not a recognized holiday). Penalties for missed collections described in this section may be assessed as in the previous subsection. SECTION 13 Refusal to Pick Up • a) Improperly Prepared Recyclable Materials In order to be considered properly prepared,Recyclable Materials must be free of contamination from food,trash, or other non-recyclable items, and placed in an approved Recycling Container (or in the case of newspaper,glossy magazines,or telephone books,placed in a paper bag beside the Recycling Container). When and if Recyclable Materials are not collected due to improper preparation, an Oops Tag must be left at the Residence by Contractor. This Oops Tag must accurately describe why the bin contents or Recyclable Materials were not collected. Failure on the part of Contractor to leave a proper Oops Tag when refusing to collect improperly prepared recyclables may result in County assessing a$25.00 penalty for each verifiable occurrence. All types of household aerosol cans will be accepted. In order to be accepted,aerosol cans must • contain no discernible liquid. Contractor will make determination on a case-by-case basis as to the emptiness of any particular aerosol can. Contractor may refuse to collect any aerosol can that it determines is not empty. When and if an aerosol can is rejected, Contractor will leave an appropriate Oops Tag as to the reason for rejection. If recyclables are intermixed with non-recyclable materials in the recycling container, Contractor may refuse to collect. If Recyclable Materials are placed in an unapproved recycling container (i.e. a plastic bag, a trashcan, an over-sized tub, or a cardboard box) Contractor may refuse to collect. In any such instance, Contractor is required to leave an appropriate Oops Tag as to the refusal to collect. b) Inaccessible Recyclable Materials In a situation where a street is inaccessible to the Contractor's collection vehicle due to a parked vehicle,utility work, construction work, or any other obstruction rendering a roadway completely or partially blocked, Contractor may attempt to service said street later that same day, either by sending the collection vehicle back, or by sending someone with a smaller vehicle to collect the materials. If Contractor cannot provide service on the scheduled day, Contractor will report non- collection to County on the day that service is scheduled to be provided. County prefers to be notified within 30 minutes of the discovery of an inaccessible area. Knowledge of inaccessibility is important to County and is useful when communicating with the residents of these areas as they call to report missed collections. If Contractor cannot notify County at the time that inaccessibility is discovered, Contractor must notify County (either by 11 20 telephone, fax, or in person)before 4:30 pm of that day. If Contractor fails to notify County of areas that are not able to be collected due to inaccessibility by 4:30 pm of the day the area is scheduled to be serviced, County may assess penalties equal to $25 per household not collected. When County receives a report of a missed collection from a Resident of an area that was not serviced due to inaccessibility, County will instruct the Resident to leave their Recyclable Materials at the curbside / roadside and to expect collection either later during their scheduled service day or no later than 5:00 pm of the next working day (assuming that the roadway is no longer inaccessible). Contractor will provide collection of an area not serviced due to inaccessibility by 5:00 pm of the next working day. In the case of ongoing construction or blockage,recycling collection may be temporarily suspended. In this case Residents will be notified by County that curbside recycling must be suspended until construction is complete or the cause of the inaccessibility is removed. Decisions to cancel curbside recycling service will be made by County with input from Contractor. County may request and receive reduction in fees charged by Contractor for services when cancellation affects an area with 25 or more Residences for more than one consecutive service date. If an area is inaccessible to the standard collection vehicle, but said area is not blocked due to construction or some other obstacle, County may require Contractor to provide service from a smaller collection vehicle, i.e. a pick-up truck. County may only require this of Contractor when there are no other reasonable options for provision of Recycling Collection Service. An example where County may require Contractor to provide service from a pick-up truck might be the case of a public street in Chapel Hill that is too narrow to accommodate safe passage of the standard recycling collection vehicle. Use of a pick-up truck by Contractor for the collection of Recyclable Materials shall be negotiated on a case-by-case basis. Contractor will not be required to provide recycling collection services in private alleys not built to Town standards such as the private alleys in Southern Village. SECTION 14 Processing Center Contractor may maintain a Processing Center at its facilities located in the City of Durham,the City of Raleigh or at other locations. All Recyclable Materials collected from Residents may be processed at the Processing Center. Title to Recyclable Materials brought to the Processing Center shall be with Contractor,and Contractor shall have the responsibility for the sale of such Recyclable Materials. Storage of Recyclable Materials at the Processing Center shall be limited to that which can be properly contained pursuant to permits issued by the responsible jurisdiction. Contractor shall notify County, in writing, not less than thirty (30) days prior to any relocation of the Processing or Drop-Off Center. County shall not seek to claim ownership of Recyclable Materials during the Initial Term of this Contract. If, after the initial term of this Contract, County elects to operate its own recycling processing center, or elects to have the recyclables collected under this Contract diverted to any 12 21 other existing facility, the recyclables collected in this program must be directed by Contractor to that processing center whereupon they become property of County. Any adjustment in the cost of service deemed necessary by Contractor because of a contended reduction in net revenue of Contractor as a result of this change in destination and ownership of Recyclable Materials, or as a result of the need for the Contractor to make equipment modifications as the result of the redirection of recyclables, shall be negotiated, in good faith, between the Contractor and County. SECTION 15 Public Awareness Program County shall develop and implement a Curbside Recycling Public Awareness Program. Contractor agrees to materially assist County with publicity efforts by ensuring that Contractor's employees involved in this program are fully informed about the materials collected in the program, and how said materials are to be prepared. Drivers and collectors are to understand, at least in a generic manner,how recyclables are processed. Contractor's collection crews shall maintain a supply of recycling brochures furnished by the County for Residents. Contractor may distribute County provided brochures as needed by individual Residents. At no time shall Contractor distribute,to any Residence or member of the public in Orange County, any public education material related to the services provided under this agreement that are not authorized by County. Any written materials that Contractor desires to distribute to Residents of Orange County shall first be submitted to County for review and approval, and such approval may not be unreasonably withheld by County. Contractor representatives may distribute material unrelated to this program to participants in the program at times other than during operation of the program; however, County must be informed in advance of such distribution and its contents. County shall conduct public awareness programs and residential education programs to assure proper preparation of Recyclable Materials and to encourage the public to remove lids from all containers and flatten plastic bottles and aluminum and steel cans before depositing these items in their Recycling Containers. SECTION 16 Compensation for Services County agrees to make monthly payments to Contractor within thirty(30)days of receipt by County of an accurate invoice and corresponding collection data. Charges must be billed at the rates agreed on in/established by Section 4 of this Agreement. Any penalties assessed by County during the invoice period will be itemized and deducted by County when it pays the invoice. If there are questions regarding the invoice or collection data payment shall be guaranteed within thirty(30)days of satisfactory resolution of the questions on the invoice or collection data. 13 22 If Contractor should fail to provide requested and necessary corollary services required as part of this Contract, payment on up to two months' invoices may be withheld until such services are provided. Corollary services include repairs or replacement of County and or Towns' property, or private property due to damage caused by Contractor as part of the recycling operation. Any repairs or replacement must be complete within thirty(30)days of damage. In the event of severe weather or other event that necessitates the temporary cancellation of recycling services, County may negotiate with Contractor and receive a reduction in cost of services for services that were not rendered. In general, if services are temporarily canceled at County's request, County will pay in full for services which are not performed (except as otherwise noted within this Contract), and in such case County may request that Contractor provide said services on a make-up day at no further cost to County. If Contractor is unable to provide service due to severe weather or other event, County may negotiate with Contractor and receive reduction in the cost of services,to be deducted from the invoice for the period during which services were not provided,or from an invoice for any service period following that service period. Any reduction in the costs of services shall be based upon the pro-rata share of services not rendered minus Contractor's verifiable overhead expenses plus any verifiable increased expenses (i.e. overtime costs incurred by Contractor due to excessive amounts of recyclable materials having been held over during period of cancellation). SECTION 17 Protection of Recyclable Materials County agrees to take such steps as may be reasonably necessary to protect Contractor's ownership of all Recyclable Materials placed in the recycling containers for collection by Contractor under the terms of this Contract and may consider adopting anti-scavenging ordinances, if necessary, to provide such protection. SECTION 18 Permits and Licenses Contractor, at its sole cost and expense, shall maintain throughout the term of this Contract all permits, licenses and approvals necessary or required for Contractor to perform the work and services described herein, including but not limited to the collection of Recyclable Materials and operation of the Processing Center. SECTION 19 Independent Contractor Contractor shall perform all work and services described herein as an independent contractor and not as an officer, agent, servant or employee of County. 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 constructed as creating a partnership or joint venture between County and Contractor. No person employed by Contractor, either as its employee or its independent contractor,performing any of the work or services described hereunder shall be considered an officer, agent, servant or employee of County, and no such person shall be entitled to any benefits available or granted to employees of County. 14 23 SECTION 20 Non-Assignment Neither Contractor nor County shall assign,transfer, convey,or otherwise hypothecate this Contract or their rights, duties or obligations hereunder or any part thereof without the prior written consent of the other. SECTION 21 Compliance with Laws and Regulations, Contractor agrees that, in the operation of the Processing Center and the performance of work and services under this Contract, Contractor will qualify under and comply with any and all Federal, State and local laws and regulations now in effect, or hereafter enacted during the term of this Contract, which are applicable to Contractor, its employees, agents or subcontractors, if any, with respect to safety or the work and services described herein. SECTION 22 Safety, Contractor certifies that it has appropriate safety policies in effect, and that Contractor takes all reasonable and necessary measures to protect Contractor's employees and the citizens of Orange County. Additionally, Contractor certifies that its employees are fully informed of said safety policies. SECTION 23 Insurance Contractor shall obtain and maintain throughout the term of this Contract,at Contractor's sole cost and expense,insurance with coverages equal to or greater than the coverages set forth below: a) Workers'Compensation Coverage A - Statutory Coverage B - $500,000 b) Comprehensive Automobile Liability Bodily Injury - $1,000,000 each person $1,000,000 each accident Property Damage - $1,000,000 each accident to include coverage for all owned,non-owned,leased and hired automobiles. 15 24 c) Comprehensive General Liability Bodily Injury - $1,000,000 each occurrence - $1,000,000 aggregate Property Damage - $1,000,000 each occurrence - $1,000,000 aggregate The County of Orange is to be named as additional insured on the Comprehensive General Liability policy. Current valid insurance policies meeting the requirements herein identified shall be maintained for the duration of this Contract, including any extensions of it. There shall also be a 30-day advance notification to County in event of cancellation of coverage or modification of any stipulated insurance coverage. Certificates of Insurance evidencing compliance with the above requirements shall be forwarded to the County prior to commencing of Contract performance and with each insurance contract renewal thereafter. It shall be the responsibility of the Contractor to insure that all subcontractors comply with the same insurance requirements as Contractor. If the Contractor cannot meet these insurance requirements, alternate insurance coverage satisfactory to County may be considered by County. Provided, however, failure by Contractor to meet these insurance requirements is a material covenant default in the performance of this Contract. • SECTION 24 Indemnity Contractor agrees to indemnify and hold harmless County from all loss, liability, claims or expense (including reasonable attorneys' fees) arising from bodily injury, including death or property damage,to any person or persons caused in whole or in part by the negligence or willful misconduct of Contractor except to the extent same are caused by the negligence or misconduct by County. County agrees, to the extent allowed by law and to the extent of insurance policies owned by County, to indemnify and hold harmless Contractor from all loss, liability, claims or expense, including death or property damage, to any person or persons caused in whole or in part by the negligence or willful misconduct of the County except to the extent same are caused by the negligence or misconduct by Contractor. SECTION 25 Termination a) In the event 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 Contract, County shall notify Contractor in writing of the nature of such default. Within fifteen (15) days following such notice: i. Contractor shall correct the default; or ii. In the event of a default not capable of being corrected within fifteen(15) days, Contractor shall commence correcting the default within fifteen (15) days of County's notification thereof,and thereafter correct the default with due diligence. 16 25 b) If Contractor fails to correct the default as provided above, County, without further notice, shall have all of the following rights and remedies which County may exercise singly or in combination: i. The right to declare that this Contract together with all rights granted Contractor hereunder are terminated,effective upon such date as County shall designate; ii. The right to license others to perform the services otherwise to be performed by Contractor, or to perform such services itself; and iii. In the event of a default not capable of being corrected because of damage to the Processing Center, due to force majeure, County may.,but is not obligated to, provide Contractor with a suitable temporary location for conducting processing and drop-off services. c) The following is a non-inclusive list of events or occurrences of defaults by Contractor in the performance of material covenants of this Contract: i. The death or injury requiring hospitalization of an individual, other than employees of the Contractor, proximately caused by the negligence or intentional act of Contractor in carrying out this Contract. ii. More than one incidence of greater than $20,000 property damage to property by the Contractor while performing the recycling contract where the Contractor's negligence or intentional act is the proximate cause of the property damage. iii. Continued high level of unsatisfactorily resolved substantive customer complaints about recyclables collection. As determined by County, a high level of unsatisfactorily resolved complaints shall be greater than twelve (12) unsatisfactorily resolved complaints in one calendar month for three consecutive calendar months. Unsatisfactorily resolved complaints shall not include complaints about missed pickups where County or Contractor can demonstrate that:the recycling bin was set-out late,the site was inaccessible at the time of scheduled collection, or that the problem was resolved by 5 pm of the working day following receipt of the complaint. The principle of ejusdem generis shall not pertain in determining defaults in the material covenants of this Contract. All agreements to be kept or observed by Contractor are material. SECTION 26 All notices required or contemplated by this Contract shall be personally served or mailed,postage prepaid and return receipt requested to the parties as follows: To: Orange County Department of Solid Waste Management Attn: Mr.Robert Taylor PO Box 17177 Chapel Hill,NC 27516-7177 To: Waste Industries Attn: Mr.Lee Bodenhamer III 148 Stone Park Court Durham,NC 27703 17 26 SECTION 27 Records and Reports Contractor shall maintain its books and records related to the performance of this Contract in accordance with the following minimum requirements: a) 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 County for a minimum period of three (3) years, or for any longer period required by law, from the date of final payment to Contractor pursuant to this Contract. b) Contractor shall maintain all documents and records which demonstrate performance under this Contract for a minimum period of three(3)years,or for any longer period required by law,from the date of termination or completion of this Agreement. c) Any records or documents required to be maintained pursuant to this Contract shall be made available for inspection or audit,at any time, during regular business hours,upon written request by a County Representative at Contractor's address indicated for receipt of notices in this Agreement. d) Contractor shall provide monthly project reports to County during the contract period,to be due on or by the 14th day of the month following the month for which the report is being made. Invoices will not be paid without submittal of accurate and complete reports. At a minimum, the reports shall include: i. Program summary of the tonnages of all recyclables recovered by material type. ii. Residence participation rates. This will be provided in terms of weekly household Set-Out counts. The Set-Out counts shall be kept separately for each of the three Towns. iii. Summaries of the total truck hours required to for the In-Town Curbside collection vehicles to collect,transport,and unload the Recyclable Materials; iv. Monthly productivity calculation shown in units of Residences and other collection points collected per truck hour;and v. Description of program progress, including any collection complaints or other problems encountered and how they were resolved. e) Contractor shall provide an annual costs and revenues report. At a minimum the report shall include: i. A summary of operation and maintenance costs for the collection of Recyclable Materials as governed by this Contract; ii. Processing costs by material; iii. Summarized revenue information from monthly reports; 18 27 iv. A discussion of any public awareness activities and their impact on participation and recovered volumes; and v. A discussion of highlights and problems and measures taken to resolve problems and increase efficiency and household participation. • f) Contractor shall,upon signature of this Contract,provide a copy of its incentive plan to increase collector productivity so there is proof of the Contractor's intent to improve collection efficiency to lower collection costs. SECTION 28 Force Maieure Contractor's performance hereunder may be suspended and its obligations hereunder excused in the event and during the period that such performance is prevented by a cause or causes beyond the reasonable control of Contractor unless such cause or causes are the sole result of action or nonaction by Contractor. Such causes shall include, but not be limited to, acts of God, acts of war, riot, fire, explosion, accident, flood or sabotage; lack of adequate fuel, power or raw materials, judicial administrative or governmental laws, regulations, requirements, rules, orders or actions; injunctions or restraining orders; the failure of any governmental body to issue or grant, or the suspension or revocation or modification of any license,permit or other authorization necessary for the construction and/or operation envisioned by this Contract; national defense requirements; labor strikes,lockout or injunction. SECTION 29 Waiver A waiver of any breach of any provision of this Contract shall not constitute or operate as a waiver of any 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 30 Law to Govern County is a political subdivision of the State of North Carolina. Contractor is a North Carolina Limited Liability Company. This Contract is entered into and is to be performed entirely within the State of North Carolina. County and Contractor agree that the law of the State of North Carolina shall govern the rights, obligations, duties and liabilities of the parties to this Contract and shall govern the interpretation of this Contract. SECTION 31 Titles of Sections Section headings inserted herein are for convenience only,and are not intended to be used as aids to interpretation and are not binding on the parties. 19 28 SECTION 32 Amendment This Contract may be modified or amended only by a written agreement duly executed by the parties hereto or their representatives. All amendments will become part of this Contract after its or their effective date. SECTION 33 Cooperation Among the Parties Whenever consent, action or inaction is required, such consent, action or inaction will not be unreasonably withheld by either party. SECTION 34 Severability The invalidity of one or more of the phrases, sentences, clauses or Sections contained in this Contract shall not affect the validity of the remaining portion of the Contract so long as the material purposes of this Contract can be determined and effectuated. SECTION 35 Successors and Assigns This Contract shall be binding upon the parties hereto,their successors and assigns 20 29 IN TESTIMONY WHEREOF,the parties have hereunto set their hands and seals the day and year first above written. COUNTY: ATTEST: BY: Barry Jacobs,Chair Donna S. Baker, Clerk to the Board CONTRACTOR: WITNESS: Signature Signature Printed Name and Title Printed Name and Title This instrument has been pre-audited in the manner required by the Local Government Budget and Fiscal Control Act. Finance Director 21 30 STATE OF NORTH CAROLINA ORANGE COUNTY I, , a Notary Public for said County and State, do hereby certify that Donna S. Baker personally appeared before me this date and acknowledged that she is the Clerk to the Board of Commissioners of Orange County, and that by authority duly given and as the act of Orange County,the foregoing instrument was signed in its name by Barry Jacobs, Chair, sealed with its official seal, and attested by herself as its Clerk. WITNESS my hand and official seal,this the day of 2006. Notary Public My Commission expires: STATE OF COUNTY OF I, , a Notary Public, do hereby certify that personally appeared before me this day and acknowledged the due execution of the foregoing Agreement. WITNESS my hand and official seal,this the day of 2006. Notary Public My Commission expires: 22 /09/C 3 -I 7-.2e°9 • 1/t, STATE OF NORTH CAROLINA ADDENDUM TO AGREEMENT FOR THE COUNTY OF ORANGE URBAN CURBSIDE RECYCLABLE MATERIALS COLLECTION SERVICES Addendum to that certain Agreement effective October 1, 2005 between The County of Orange, on behalf of its Department of Solid Waste Management, (hereinafter "County"), and Waste Industries, LLC of Durham, North Carolina (hereinafter "Contractor") for the provision of residential curbside recycling collection services to single family residents, and adjacent small businesses, schools, churches, and pedestrian recycling stations within residential areas, located within the Town limits of Carrboro,Chapel Hill and Hillsborough,NC. In consideration of the mutual promises and conditions set forth herein, the County and Contractor agree to amend the Agreement as follows: Definitions: Definitions of specific terms referred to throughout this Agreement shall be amended as follows: Fiber: the subset of Recyclable Materials including newspapers and their inserts,glossy magazines, and phonebooks, Old Corrugated Cardboard(OCC),and Mixed Paper(OMP). Recyclable Materials: (also to be known as"recyclables")All newspapers and their inserts,glossy magazines,phonebooks,corrugated cardboard,mixed paper, glass bottles and jars, aluminum beverage cans, steel food cans,aluminum foil,aluminum trays,plastic bottles#1,#2,#3,#4,#5,#6, and#7,empty aerosol cans, and other agreed on materials that are the subject of this Contract. Term of Agreement: Section 2 of the Agreement is amended as follows: The renewal term of the Agreement will be for two (2) years unless otherwise agreed by the parties: the period from April 1, 2009, through March 31, 2011 (hereafter referred to as initial term) assuming that funds are appropriated annually and the performance of Contractor is satisfactory. The level of performance expected is defined in this Addendum and the associated Agreement. This Contract may be extended and/or expanded following the initial term for a period of two (2) additional years assuming that the Urban Curbside Recycling Program is successful, that County approves continuing the program, and that funding is approved annually through the approval of the overall Department of Solid Waste Management budget. Terms of this Contract may change if the change is agreed to by Contractor and County. Contractor has no rights and will acquire no rights to notice or in the County Urban Recycling Program or in recyclables (as defined in this Contract) beyond those contained in this Contract. Termination of this Contract resulting from default by Contractor or non renewal at the expiration of its term or any extension terminates all rights of Contractor with respect to the collection of recyclables, notwithstanding any law purporting to create a right in Contractor to "displacement compensation"named as such or identified by any other name. Costs of Services Section 4 of the Agreement is amended as follows: a) Urban Curbside Program The cost of service for Urban Curbside Recycling for April 1, 2009 through June 30, 2009 shall be $3.77 per Residence per month. The cost of service for Urban Curbside Recycling for Fiscal Year 2009-2010, July 1, 2009 through June 30, 2010, shall be $3.97 per Residence per month. Residence count shall be the number of units eligible for service in Carrboro, Chapel Hill, and Hillsborough plus any serviceable Non-Residences as described in Section 4, subsection b of this Contract. b) Recycling Service to Non-Residences The cost of providing curbside recycling service to small businesses, churches, and other institutions that are adjacent to a curbside recycling route will be determined as follows: the cost will be equal to the cost of providing service to a Residence multiplied by the number of sets of Recycling Bins assigned to the small business, church, or institution (each two bin set shall be considered the equivalent of one(1)Residence). Example 1: During Fiscal Year 2009-2010, to service a preschool which is assigned four (4) curbside recycling bins and is located in a residential area within one of the Towns, the County will be billed at the rate of 2 x$3.97 per month or$7.94 per month. The cost of providing curbside recycling service to pedestrian recycling stations that are nearby or adjacent to a curbside recycling route will be determined as follows: the cost will be equal to five(5)times the cost of providing service to a Residence. Example 3: During Fiscal Year 2009-2010 to service a pedestrian recycling station located at Carrboro Town Hall, County will be billed at the rate of 5 x $3.97 per month or $19.85 per month. c) Cost of Services for Future Fiscal Years The monthly cost of collection per Residence in FY 2010-2011 shall not exceed $3.97 per Residence multiplied by a factor determined by comparing the Annual measurement of the Bureau of Labor Statistics Consumer Price Index for Garbage and Trash Collection for 2009 to the Annual value of the same index for 2008. The index used shall be the US city average and shall not be seasonally adjusted. If the Bureau of Labor Statistics makes the Consumer Price Index for Garbage and Trash Collection available for the South Urban Region, then this region- specific measurement of the index will replace the US city average for the purpose of determining future costs. If County and Contractor mutually agree to extend this Contract beyond the initial term, actual costs for future years will be provided in the contract extension agreement. The formula for negotiating future costs is to be as follows: 2 I The cost per Residence for any year shall not exceed the cost per Residence for the previous year multiplied by a factor determined by comparing the Annual measurement of the Bureau of Labor Statistics Consumer Price Index for Garbage and Trash Collection for the year ending that December and comparing it to the annual value of the same index for the year prior to that. The index used shall be the US city average and shall not be seasonally adjusted. For example: the cost per Residence for FY 2011-2012 shall be allowed to increase above the FY 2010-2011 price by a factor determined by the change in the Annual value of the Bureau of Labor Statistics Consumer Price Index for Garbage and Trash Collection as measured for 2010 and compared to the Annual value for 2009. d) Expansion or Reduction in Number of Residences Serviced The Contract may be expanded or reduced at the option of County to include additional or fewer residential Residences and adjacent small businesses, schools, institutions, churches, and pedestrian recycling stations. If legislation or ordinances are passed which significantly impact the program participation, the cost of service may be renegotiated between the Contractor and County. e) Fuel Cost Adjustment No fuel cost adjustment, fuel surcharge, or other energy recovery fee shall be assessed or included when determining the cost of service provided under this Agreement. In the event of an extraordinary change in the cost of fuel, be that an increase or a decrease, the cost of service may be renegotiated if the County and Contractor can mutually agree to terms and conditions. Contractor's Representative Section 7 of the Agreement is amended as follows: Waste Industries' representative for the purposes of this Agreement shall be: Richard Johnson Branch Manager 148 Stone Park Court Durham,NC 27703 Ph. (919) 596-1363 Contractor shall provide notice to County, as provided for in this Contract,of a change of its Representative. Frequency and Time of Collection Section 8 subsection a and subsection b shall remain unchanged. Section 8 subsection c of the Agreement is created as follows: c) Rerouting of Scheduled Services County and Contractor agree that if it is determined to be mutually beneficial the service schedule of individual streets may be changed to accommodate more efficient collection of 3 Recyclable Materials. Any such reroute shall not change the collection frequency, and each Residence serviced by the Urban Curbside program will maintain weekly collection frequency. County shall not unreasonably withhold agreement to conduct reroutes, however County intends to limit the occurrence of any significant reroute (one that impacts more than 5% of serviced Residents) to no more than once every two years. County and Contractor agree to plan a major reroute of service schedule during the summer of 2009. County and Contractor must agree on the reroute and service schedule before this reroute can begin. Contractor will at its own cost bear the full expense of an extensive public outreach campaign to notify impacted Residents of new service schedule. This public outreach campaign will include the posting of signs at key intersections in the impacted areas, the direct mailing of a notice of schedule change to each impacted household, and the purchase of print advertisement in local news outlets informing the public of the new schedules. County will perform the physical posting and removal of reroute signs. The cost to Contractor for production of the reroute signs is not to exceed $1,500. County will have the opportunity to approve and sign off on the final text for each of the above listed features of the public outreach campaign. Processing Center Section 14 of the Agreement is amended as follows: Contractor may maintain a Processing Center at its facilities located in the City of Durham,the City of Raleigh or at other locations. This Processing Center may be a Contractor owned and operated facility, or may be that of a third party. All Recyclable Materials collected under this Agreement may be processed at the Processing Center. Title to Recyclable Materials brought to the Processing Center shall be with Contractor, and Contractor shall have the responsibility for the sale of such Recyclable Materials. Storage of Recyclable Materials at the Processing Center shall be limited to that which can be properly contained pursuant to permits issued by the responsible jurisdiction. Contractor shall notify County, in writing,not less than thirty(30)days prior to any relocation of the Processing or Drop-Off Center. If County elects to operate its own recycling processing center, or if County elects to have the recyclables collected under this Contract diverted to any other existing facility, the recyclables collected in this program must be directed by Contractor to that processing center whereupon they become property of County. Any adjustment in the cost of service deemed necessary by Contractor because of a contended reduction in net revenue of Contractor as a result of this change in destination and ownership of Recyclable Materials, or as a result of the need for the Contractor to make equipment modifications as the result of the redirection of recyclables, shall be negotiated, in good faith, between the Contractor and County. Notices Section 26 of the Agreement is amended as follows: All notices required or contemplated by this Contract shall be personally served or mailed,postage prepaid and return receipt requested to the parties as follows: To: Orange County Department of Solid Waste Management Attn: Mr. Robert Taylor PO Box 17177 Chapel Hill,NC 27516-7177 4 To: Waste Industries Attn: Mr. Richard Johnson 148 Stone Park Court Durham,NC 27703 Full Force and Effect Except as amended by this Addendum,the Agreement shall remain in full force and effect. 5 IN TESTIMONY WHEREOF, the parties have hereunto set their hands and seals the day and year first above written. COUNTY: / ATTEST: BY: �-�.�_�� _ �/ /) Valerie Foushee, 7 it tow X10% 0o a S. Baker, Clerk to the Board a iz 4,t, ni. CO otz. CTOR:b .� ittL.v ESS: rib Sii.n.. ure n 1 l Si nature cUt-Nt- LotUck /9- V?. D• v;J p. bake_ 6.4 v.e t N w+at Le,ire MeA 1 Printed Name and Title Printed Name and Title This instrument has been pre-audited in the manner required by the Local Government Budget and Fiscal Control Act. Finance erector 6 7 , o . . • STATE OF NORTH CAROLINA ORANGE COUNTY I, Q AmieSon-19ock 1T, a Notary Public for said County and State, do hereby ce Ty hat Donna S. Baker personally appeared before me this date and acknowledged that she is the Clerk to the Board of Commissioners of Orange County, and that by authority duly given and as the act of Orange County,the foregoing instrument was signed in its name by Valerie Foushee, Chair, sealed with its official seal, and attested by herself as its Clerk. WITNESS my hand and official seal,this the d9:34 day of ?401-e, 62009. L , ° iQ4 � No . 'ublic // My Commission expires: /�V✓020/3 MONA ors./.,/4t Mit STATE OF IV � � .� i COUNTY OF (.0),(4_, I a `(, w , a Notary Public, do hereby certify that k personally appeared before me this day and acknowledged d/ acknowledged the due execution of the foregoing Agreement. WITNESS my hand and official seal,this the Cp day of i'Yl n,,t, 2009. :LrK ' // i j k // N tary Public My Commission expires: 4 l/ — I (.4.°'P i- Soti,"* ( j01ARY• t. z. P U B�-`G G, • . t "1"Nerlition"""4