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HomeMy WebLinkAboutAgenda - 09-05-2013 - 5mORANGE COUNTY BOARD OF COMMISSIONERS ACTION AGENDA ITEM ABSTRACT Meeting Date: September 5, 2013 Action Agenda Item No. 5 -m SUBJECT: Amendment to the Household Hazardous Waste Services Agreement DEPARTMENT: Solid Waste Management PUBLIC HEARING: (Y /N) No ATTACHMENT(S): HHW Agreement Amendment Existing HHW Agreement INFORMATION CONTACT: Gayle Wilson, 919 - 968 -2885 John Roberts, 919 - 245 -2318 1 PURPOSE: To approve an amendment to the existing Household Hazardous Waste (HHW) services agreement to include the provision of services at the Walnut Grove Church Road Solid Waste Convenience Center when it starts being open on Thursdays beginning on September 12, 2013. BACKGROUND: The local HHW program was established in 1994. In March 2012 the BOCC awarded the contract for these services to Clean Harbors Environmental Services, Inc. The BOCC, through the recent adoption of the FY 2013/14 Budget, authorized schedule changes for two solid waste convenience centers to be open on Thursdays beginning in September 2013. The existing HHW agreement includes the provision of HHW services at Walnut Grove. However, the HHW contract does not currently include and account financially for the additional HHW service each Thursday. The attached amendment revises the existing agreement to include the additional day per week at Walnut Grove Church Road Solid Waste Convenience Center. FINANCIAL IMPACT: The additional cost for providing HHW services on Thursdays is $150 /month. RECOMMENDATION(S): The Manager recommends that the Board: 1) approve the amendment to the Household Hazardous Waste Services Agreement with Clean Harbors Environmental Services, Inc.; 2) authorize the Chair to sign the Amendment; and 3) authorize the Manager to sign any further amendments to the Household Hazardous Waste Services Agreement for amendments with amounts up to the Manager's contract signature authority. ORANGE COUNTY SERVICES AGREEMENT AMENDMENT NORTH CAROLINA 2 THIS AMENDMENT, made and entered into this the 5th day of September, 2013, by and between the County of Orange, a body politic and corporate of the State of North Carolina, hereinafter called "County ", party of the first part, and Clean Harbors Environmental Services, Inc. hereinafter called "Provider ", party of the second part: WITNESSETH: WHEREAS, the County and Provider entered into that Services Agreement dated May 15, 2012 ( "Agreement "), for the disposal of household hazardous waste materials; and WHEREAS, the County and Provider ( "Parties ") desire to amend the Agreement while keeping in effect all terms and conditions of the Agreement not inconsistent with the terms and conditions set forth below. NOW THEREFORE, for and in consideration of the mutual covenants and agreements made herein, the Parties agree to amend the Agreement as follows: SECTION 4: BASIC SERVICES Section 4(a) is amended by adding the following sentence: The hours of operation as reflected on page 6 of Attachment A are amended to Monday, Tuesday, Thursday, Friday 7:00 am to 6:00 pm; Saturday 7:00 am to 5:00 pm; Sunday 1:00 pm to 6:00 pm. SECTION 6: COMPENSATION Section 6(a) is amended by adding the following sentence: Attachment C is amended to reflect the following cost associated with the Walnut Grove Convenience Center: Attendant Hourly Wage — Walnut Grove Hourly $1,900 per month. September 2013 Thursday service at Walnut Grove will begin on September 12, resulting in a September 2013 cost of $113 ($150 /Month/Thursday cost pro- rated) . The Agreement shall remain in full force and effect to the extent it is not inconsistent with this Amendment. In the event there is a conflict between the terms of the Agreement and the terms of this Amendment, this Amendment shall control. [SIGNATURE PAGE TO FOLLOW] 3 IN TESTIMONY WHEREOF, this Amendment has been executed by the parties hereto, as of the date first above written. SIGNATURE PAGE TO FOLLOW COUNTY BY: Barry Jacobs Chair, Board of County Commissioners ATTEST: CLERK: Donna Baker [SEAL] Approved as to form and technical content: Department Director PROVIDER Clean Harbors Environmental Services, Inc. 42 Longwater Dr Norwell, MA 02061 This instrument has been pre- audited in the manner required by the Local Government Budget and Fiscal Control Act: Office of Finance and Administrative Services Approved as to legal sufficiency: Office of the County Attorney M [Departmental Use Only] TITLE HHW collection FY 2012 NORTH CAROLINA SERVICES AGREEMENT OVER $90,000.00 RFP — NO REIMBURSABLE EXPENSES ORANGE COUNTY This Services Agreement (hereinafter "Agreement "), made and entered into this 15t" day of May, 2012, ( "Effective Date ") by and between Orange County, North Carolina a body politic and corporate of the State of North Carolina (hereinafter, the "County ") and Clean Harbors Environmental Services, Inc., a Massachusetts Corporation(hereinafter, the "Provider "). WITNESSETH: I That the County and Provider, for the consideration herein named, do hereby agree as follows: 1. Definitions. Terns used in this Agreement are defined as follows: a. Resource Conservation and Recovery Act (RCRA): An amendment to the federal Solid Waste Disposal Action of 1965, RCRA was enacted in 1976. Within this Agreement the acronym RCRA does not only refer to the statute itself, but also to corresponding regulations codified in the Code of Federal Regulations (CFR), guidance and policy. The definitions that follow are based on those established by RCRA, and are intended to reflect the meaning created by RCRA. b. Hazardous Waste: A waste with properties that make it dangerous, or capable of having a harmful effect on human health and environment, as determined by RCRA. c. Acutely Hazardous Waste: As defined by RCRA, Acutely Hazardous Waste are Listed Wastes that are accompanied by the hazard code (H) and are subject to stricter management standards than most other wastes. d. Listed Wastes: Wastes that are considered hazardous under RCRA because they meet specific listing descriptions. The Environmental Protection Agency (EPA) has applied the listing criteria to hundreds of specific industrial wastestreams. These wastestreams are grouped into four lists located at 40 CFR Part 261, Subpart D. Each listed waste is assigned a hazard code by the EPA to indicate its reason for listing a waste. e. Household Hazardous Waste (HHW): Waste generated by a household that could technically be Hazardous Waste (as defined above) but that is exempt by RCRA from the definition of hazardous waste. f. Conditionally Exempt Small Quantity Generator (CESQG): A commercial business, facility or other non - household entity that produces less than 100 legs of hazardous waste, or less than 1 kg of acutely hazardous waste, per calendar month. Revised July 2010 1 g. Universal Waste: As codified by 40 CFR Pat 273, Universal Wastes are certain widely generated hazardous wastes with special management provisions intended to ease the 2. Services a. Scope of Work. i) This Services Agreement ( "Agreement ") is for professional services to be rendered by Provider to County with respect to (insert type of project): 1. The responsible collection, processing, and disposal of Household Hazardous Waste ( "HHW ") from the Eubanks Road HHW facility and the Walnut Grove Convenience Center; 2. Provide Orange County residents daily access to a drop -off facility to properly dispose of hazardous wastes; 3. Extend services to small businesses, non-profits, and other public agencies within Orange County generating less than 100 Kg of Hazardous Waste per month (Conditionally Exempt Small Quantity Generators, "CESQGs ") for disposal of commercial hazardous waste only at the Eubanks Road HHW facility; 4. Provide residents of Chatam, Durham, and Wake Counties to the Eubanks Road HHW facility to properly dispose of household hazardous waste; 5. Keep accurate and thorough records of the cradle to grave manifests and disposal records, the weight of materials collected daily, the number of participants, the County in which they reside and the number of CESQG participants. b. Commercial Waste and Conditionally Exempt Small Quantity Generator Program i) County and Provider shall jointly establish and operate a program to accept and manage Hazardous Waste produced by Conditionally Exempt Small Quantity Generators (CESQG) located within Orange County. By operating this program jointly with Provider, County does not take possession of or become the legal generator of any commercially generated hazardous waste accepted by the CESQG Waste Program. ii) The County, Site Attendant, and Provider will work to prevent commercially generated hazardous waste from being falsely presented as household hazardous waste to the Household Hazardous Waste Program, and will also work to prevent commercially generated waste that originates from outside of Orange County to be delivered to the program. iii) The CESQG Program will operate during the same hours as the HHW collection, though the County will actively seek to schedule large loads of CESQG Waste to be delivered during those times and days when the HHW program experiences less participation, with the objective of both minimizing the need for households participants to wait while CESQG waste is being unloaded, and also to allow Provider enough notice to provide extra staff if necessary to receive and manage large loads of CESQG waste. Revised July 2010 2 iv) When receiving CESQG Wastes, Provider shall require the participant (generator) to complete and sign a Conditionally Exempt Small Quantity Generator Certification indicating that they meet the criteria of a conditionally exempt small quantity generator as defined under 40 CFR 261.5, and also certifying that the business /entity is physically located in Orange County. v) When billing County for the charges associated with managing HHW and CESQG Waste, Provider will account for any and all accepted CESQG wastes and shall provide County with a copy of the Conditionally Exempt Small Quantity Generator Certifications, an accurate count of the number of CESQG Participants each month, and as accurate estimate of the amount (in pounds) of CESQG Wastes managed each month. vi) CESQG will not be accepted at the Walnut Grove Convenience Center. c. By executing this Agreement, the Provider represents and agrees that Provider is qualified to perform and fully capable of performing and providing the services required or necessary under this Agreement in a fully competent, professional and timely manner. d. Time is of the essence with respect to this Agreement. e. The services to be performed under this Agreement consist of Basic Services, as described and designated in Section 3 hereof. Compensation to the Provider for Basic Services under this Agreement shall be as set forth herein. 3. Responsibilities of the Provider a. Services to be provided. The Provider shall provide the County with all services required in Section 3 to satisfactorily complete the Project within the time limitations set forth herein and in accordance with the highest professional standards. b. Standard of Care. i) The Provider shall exercise reasonable care and diligence in performing services under this Agreement in accordance with the highest generally accepted standards of this type of Provider practice throughout the United States and in accordance with applicable federal, state and local laws and regulations applicable to the performance of these services. Provider is solely responsible for the professional quality, accuracy and timely completion and/or submission of all work related to the Basic Services. ii) Provider shall be responsible for all errors or omissions, in the performance of the Agreement. Provider shall correct any and all errors, omissions, discrepancies, ambiguities, mistakes or conflicts at no additional cost to the County. iii) The Provider shall not, except as otherwise provided for in this Agreement, subcontract the performance of any work under this Agreement without prior Revised July 2010 3 7 written permission of the County. No permission for subcontracting shall create, between the County and the subProvider, any contract or any other relationship. iv) Provider is an independent Provider of County. Any and all employees of the Provider engaged by the Provider in the performance of any work or services required of the Provider under this Agreement, shall be considered employees or agents of the Provider only and not of the County, and any and all claims that may or might arise under any workers compensation or other law or contract on behalf of said employees while so engaged shall be the sole obligation and responsibility of the Provider. v) Provider agrees that Provider, its employees, agents and its subProviders, if any, shall be required to comply with all federal, state and local antidiscrimination laws, regulations and policies that relate to the performance of Provider's services under this Agreement. vi) zf activities related to the performance of this Agreement require specific licenses, certifications, or related credentials Provider represents that it and /or its employees, agents and subProviders engaged in such activities possess such licenses, certifications, or credentials and that such licenses certifications, or credentials are current, active, and not in a state of suspension or revocation. vii) Additionally, the Provider warrants that it understand the currently known hazard and suspected hazards that are presented to persons, property and the environment by the transportation, treatment and disposal of hazardous wastes. c. Generator of and Title to Waste. i) The Provider shall be deemed to be the "Generator" for record keeping and paperwork purposes, of all household hazardous wastes accepted by the Provider during performance of this Agreement from residents of the County's service areas. The "Generator" of the waste pursuant to applicable law shall be determined in accordance with applicable law. ii) The Provider shall also be designated as the Generator of all HHW accepted by the Provider's employees or the County and temporarily stored on Orange County property while awaiting transport, recycling and disposal by the Provider. Provider shall have the opportunity to inspect and either accept or reject non- conforming waste before Provider is designated as the Generator of such waste. iii) Title to all identified household hazardous wastes accepted by the Provider while performing the Agreement for transport, recycling and disposal by the Provider shall pass directly from program participants to the Provider at the time of Provider's acceptance of said waste, as explicitly stated herein. Title to all nonconforming waste not accepted at the site but subsequently accepted by the Provider for transport, recycling and disposal by the Provider shall be deemed to pass directly from such residents to the Provider retroactive to the date received by the Provider. Revised July 2010 4 4. Basic Services a. Description. The Provider shall perform as Basic Services the work and services described herein and as specified in the County's Request for Proposals (the "RFP ") "RFP Number 5183 for "Household Hazardous Waste Collection and Disposal Services" issued March Ib, 2012, and the Provider's proposal, which are fully incorporated and integrated herein by reference together with Attachments A and B (designate all attachments). In the event a term or condition in any document or attachment conflicts with a term or condition of this Agreement the term or condition in this Agreement shall control. Should such conflict arise the priority of documents shall be as follows: This Agreement, the County's RFP together with attachments, Provider's Proposal together with attachments. 5. Duration of Services a. Term. The term of this Agreement shall be from July 1, 2012 to June 30, 2017 with the option of two (2) two (2) year renewal periods. County shall provide written notice of extension of the contract thirty (30) days prior to the expiration of the term. b. Scheduling of Services i) The Provider shall schedule and perform his activities in a timely manner so as to meet the Milestone Dates listed in Section 3. ii) Should the County determine that the Provider is behind schedule, it may require the Provider to expedite and accelerate his efforts, including providing additional resources and working overtime, as necessary, to perform his services in accordance with the approved project schedule at no additional cost to the County. iii) The Commencement Date for the Provider's Basic Services shall be July 1, 2012. 5. Compensation a. Co m ensation for Basic Services. Compensation for Basic Services shall include all compensation due the Provider from the County for all services under this Agreement. The maximum amount payable for Basic Services is as provided in Attachment C Dollars ($as provided in Attachment Q. In the event the amount stated on an invoice is disputed by the County, the County may withhold payment of all or a portion of the amount stated on an invoice until the parties resolve the dispute. Payment for Basic Services shall become due and payable in direct proportion to satisfactory services performed and work accomplished. b. Additional Services. County shall not be responsible for costs related to any services in addition to the Basic Services performed by Provider unless County requests such additional services in writing and such additional services are evidenced by a written amendment to this Agreement. 7. Responsibilities of the County Revised July 2010 5 9 a. Cooperation and Coordination. The County has designated the (Recycling Programs Manager) to act as the County's representative with respect to the Project and shall have the authority to render decisions within guidelines established by the County Manager and/or the County Board of Commissioners and shall be available during working hours as often as may be reasonably required to render decisions and to furnish information. 8. Insurance a. General Requirements. The Provider shall purchase and maintain and shall cause each of his subProviders to purchase and maintain, during the period of performance of this Agreement at least the following insurance coverage: INSURANCE DESCRIPTION MINIMUM REQUIRED COVERAGE • Worker's Compensation Limits for Coverage A - Statutory State of N.C. Coverage B - Employers Liability $1,000,000 per occurrence • Employer's Liability $1,000,000 per occurrence • General Liability (bodily injury and $1,000,000 Each Occurrence; $2,000,000 property damage) Aggregate. • Automobile Liability • Environmental Impairment Liability for sudden accidental occurrences • Excess Liability Insurance • MCS90 Endorsement for hazardous materials transportation Combined Single Limit $1,000,000 $1,000,000 per claims made, aggregate $8,000,000 per occurrence, aggregate. Excess Liability Insurance Liability, General Liability Liability. $5,000,000 $2,000,000 annual $8,000,000 annual covers Employer's and Automobile b. Insurance Rating. The minimum insurance rating for any company insuring the Provider shall be Best's A. C. Additional Insured. All insurance policies (with the exception of Worker's Compensation and Professional Liability) required under this Agreement shall name the County as an additional insured party. Evidence of such insurance shall be furnished to the County, together with evidence that each policy provides the County with not Iess than thirty (30) days prior written notice of any cancellation, modification, non renewal or reduction of coverage. 9. Indemnity Revised July 2010 6 10 a. Indemnity. The Provider agrees to defend, indemnify and hold harmless the County from all loss, liability, claims or expense, including attorney's fees, arising out of or related to the Project and arising from bodily injury including death or property damage to any person or persons caused in whole or in part by the negligence or misconduct of the Provider except to the extent same are caused by the negligence or willful misconduct of the County. It is the intent of this provision to require the Provider to indemnify the County to the fullest extent permitted under North Carolina law. 10. Amendments to the Agreement a. Changes in Basic Services. Changes in the Basic Services and entitlement to additional compensation or a change in duration of this Agreement shall be made by a written Amendment to this Agreement executed by the County and the Provider. The Provider shall proceed to perform the Services required by the Amendment only after receiving a fully executed Amendment from the County. 11. Termination a. Termination for Convenience of the County. This Agreement may be terminated without cause by either party for its convenience upon thirty (30) days prior written notice to the other party. In the event of termination pursuant to this section, Provider shall ensure that all HHW accepted for transportation, disposal and/or recycling, or HHW located on Orange County properties and designated for transportation by Provider in accordance with Section 3(c) shall be disposed off in accordance with the terms of this Agreement. b. Compensation After Termination. i) In the event of termination, the Provider shall be paid that portion of the fees and expenses that it has earned to the date of termination, less any costs or expenses incurred or anticipated to be incurred by the County due to errors or omissions of the Provider. ii) Should this Agreement be terminated, the Provider shall deliver to the County within seven (7) days, at no additional cost, all deliverables including any electronic data or files relating to the Project. C. Waiver. The payment of any sums by the County under this Agreement or the failure of the County to require compliance by the Provider with any provisions of this Agreement or the waiver by the County of any breach of this Agreement shall not constitute a waiver of any claim for damages by the County for any breach of this Agreement or a waiver of any other required compliance with this Agreement. 12. Additional Provisions a. Limitation and Assignment. The County and the Provider each bind themselves, their successors, assigns and legal representatives to the terms of this Agreement. Neither the County nor the Provider shall assign or transfer its interest in this Agreement without the written consent of the other. Revised July 2010 7 11 b. Governing Law. This Agreement and the duties, responsibilities, obligations and rights of respective parties hereunder shall be governed by the laws of the State of North Carolina. c. Dispute Resolution. Any and all suits or actions to enforce, interpret or seek damages with respect to any provision of, or the performance or non - performance of, this Agreement shall be brought in the General Court of Justice of North Carolina sitting in Orange County, North Carolina. It is agreed by the parties that no other court shall have jurisdiction or venue with respect to such suits or actions. The Parties may agree to nonbinding mediation of any dispute prior to the bringing of such suit or action. d. Entire Agreement. This Agreement, together with the RFP and its attachments and the Proposal and its attachments, represents the entire and integrated agreement between the County and the Provider and supersedes all prior negotiations, representations or agreements, either written or oral. This Agreement may be amended only by written instrument signed by both parties. Modifications may be evidenced by facsimile signatures. e. Severability. If any provision of this Agreement is held as a matter of law to be unenforceable, the remainder of this Agreement shall be valid and binding upon the Parties. f. Ownership of Work Product. Should Provider's performance of this Agreement generate documents, items or things that are specific to this Project such documents, items or things shall become the property of the County and may be used on any other project without additional compensation to the Provider. The use.of,the documents, items or things by the County or by any person or entity for any purpose other than the Project as set forth in this Agreement shall be at the full risk of the County. g. Non - Appropriation. Provider acknowledges that County is a governmental entity, and the validity of this Agreement is based upon the availability of public funding render the authority of its statutory mandate. In the event that public funds are unavailable and not appropriated for the performance of County's obligations under this Agreement, then this Agreement shall automatically expire without penalty to County immediately upon written notice to Provider of the unavailability and non - appropriation of public funds. It is expressly agreed that County shall not activate this non - appropriation provision for its convenience or to circumvent the requirements of this Agreement, but only as an emergency fiscal measure during a substantial fiscal crisis. In the event of a change in the County's statutory authority, mandate and/or mandated functions, by state and /or federal legislative or regulatory action, which adversely affects County's authority to continue its obligations under this Agreement, then this Agreement shall automatically terminate without penalty to County upon written notice to Provider of such limitation or change in County's legal authority. h. Notices. Any notice required by this Agreement shall be in writing and delivered by Revised July 2010 12 certified or registered mail, return receipt requested to the following: Orange County Provider's Name & Address Attention: Gayle Wilson Clean Harbors Environmental Services, Inc. P.O. Box 17177 Attention: General Counsel Chapel Hill, NC 27516 92 Longwater Dr Norwell, MA 02061 IN WITNESS WHEREOF, the Parties, by and through their authorized agents, have hereunder set their hands and seal, all as of the day and year first above written. ORANGE COUNTY: By: Bernadette Pelissier, Chair Orange County Board of Commissioners Attest: [SEAL PROVIDER: Clean Harbors Environmental Services, Inc. By: Title: _T V_,c�Q 5/2-3 1 / Z_ This instrument has b ed as to technical content. oul - - A - 11� Gayle Wilson, epartment Director This instrument has been pre - audited in the manner required by the Local Government Budget and Fiscal Control Act. A� A ) Office of the Finance Director This ' str ment has been approved as to form and legal sufficiency. ffice of th Vrrty torney Revised J u ly 2010