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HomeMy WebLinkAbout2014-144 Solid Waste - Waste Industries LLC for Urban Curbside Recycling Service $3,900,000 [Departmental Use Only] TITLE G h NORTH CAROLINA FY SERVICES AGREEMENT OVER$90,000.00 ORANGE COUNTY RFP— NO REIMBURSABLE EXPENSES This Services Agreement (hereinafter "Agreement"), made and entered into this /PoAday of February, 2014, ("Effective Date") by and between Orange County, North Carolina a body politic and corporate of the State of North Carolina (hereinafter, the "County") and Waste Industries, LLC, (hereinafter,the "Provider"). WITNESSETH: That the County and Provider,for the consideration herein named,do hereby agree as follows: 1. Services a. Scope of Work. i) This Services Agreement ("Agreement") is for services to be rendered by Provider to County with respect to: Weekly Urban Curbside Recyclables Collection Services within the three municipalities in Orange County, North Carolina(Carrboro, Chapel Hill and Hillsborough). Service will be weekly collection in 95 gallon roll carts for approximately 18,750 units. Carts will be provided by the County. ii) 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. iii) Time is of the essence with respect to this Agreement. iv) The services to be performed under this Agreement consist of Basic Services, as described and designated in Section 3 hereof. The services provided by Provider under this Agreement may sometimes be referred to as the"Services". Compensation to the Provider for the Services under this Agreement shall be as set forth herein. 2. Responsibilities of the Provider a. Services to be provided. The Provider shall provide the County with all services required in Section 3 for the Term as defined in Section 4(a)in accordance with the highest industry standards as further described in Section 2(b)below. 2013, and the Provider's proposal, which are attached hereto and fully incorporated and integrated herein by reference together with Attachments (RFP and associated addenda). The Basic Services presume that Provider will be permitted to off-load all collected materials at the Orange County materials processing facility located at 1514 Eubanks Road, Chapel Hill, NC and that such facility will be capable of accepting such materials. 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, and Providers Proposal together with attachments. ii) The Basic Services will be performed by the Provider in accordance with the following schedule: (Insert task list and milestone dates) Task Milestone Date 1. n/a 2. 3. 4. S. 6. 7. 8. 9. 10. n/a 4. Duration of Services a. Term. The original term of this Agreement shall begin on the date this Agreement is executed and extend through June 30, 2019 (the "Initial Term"), with Services commencing as set forth below. The term may be extended for an additional five (5) years by mutual agreement of the parties (an "Extension Term" and together with the Initial Term,the"Term"). Such an extension shall be made in writing no later than January 10, 2019. All other terms and conditions, including those of termination, shall continue to apply during an extended term. b. Scheduling of Services i) n/a ii) n/a iii) Provider shall begin performance of the Services under this Agreement prior to June 30,2014 but no sooner than June 2, 2014. 5. Compensation b. Standard of Care. i) The Provider shall exercise reasonable care and diligence in performing the 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 quality, accuracy and timely completion and/or submission of all work related to the Services. ii) Provider shall be responsible for all errors or omissions,in the performance of the Services under this=Agreement. Provider shall correct any and all errors, omissions, discrepancies, ambiguities, mistakes or conflicts caused by Provider,its employees, agents and subcontractors 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 written permission of the County. No permission for subcontracting shall create,between the County and the subcontractor, any contract or any other relationship. iv) Provider is an independent contractor 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 subcontractors, 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) If 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 subcontractors 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. 3. Basic Services a. Basic Services. i) The Provider shall perform the Services as described herein and as specified in the County's Request for Proposals (the "RFP") "RFP Number 5199 for "Urban Curbside Recyciing Collection Services" issued December 18, a. Compensation for Services. Compensation for the Services shall include all compensation due the Provider from the County for all services under this Agreement. The maximum amount payable for the Services is Three Million and Nine Hundred Thousand Dollars ($3,900,000). Provider will invoice the County on a monthly basis based on the number of carts at the rates reflected in Provider's Proposal, which rates may be subject to an annual adjustment on July 1 of each year beginning July 1, 2015 in the same amount as the percentage change in the Bureau of Labor Statistics Consumer Price Index for All Urban Consumers: US City Average, Expenditure category Garbage and Trash, measured for the most recently available 12 month period average preceding the adjustment date. Payment will be due from the County to Provider within 30 days following issuance of the invoice that includes the required monthly data report. In the event the amount stated on an invoice is disputed by the County, the County may withhold payment of the disputed portion of the amount stated on an invoice until the parties resolve the dispute. 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. b. Responsibilities of the County a. Cooperation and Coordination. The County has designated the (Recycling Programs Manager) to act as the County's representative with respect to the Services 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. 7. Insurance a. General Requirements. Provider shall obtain, at its sole expense, Commercial General Liability Insurance, Automobile Insurance, Workers' Compensation Insurance, and any additional insurance as may be required by Owner's Risk Manager as such insurance requirements are described in the Orange County Risk Transfer Policy and Orange County Minimum Insurance Coverage Requirements (each document is incorporated herein by reference and may be viewed at http•//orangecountync.gov/purchasing/eontracts.asp). Provider shall not commence work until such insurance is in effect and certification thereof has been received by the Owner's Risk Manager. 8. Indemnity 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(i)Provider's negligence or willful misconduct in performance of the Services required hereunder, (ii) Provider's breach of this Agreement, and (iii) 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 in each case,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. 9. Amendments to the Agreement a. Changes in Basic Services. Changes in the 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. 10. Termination a. Termination. Except as otherwise provided herein, if either party breaches this Agreement or defaults in the performance of any of the covenants or conditions contained herein and does not cure said breach or default within fifteen(15) days after the non-breaching party has given the breaching or defaulting party written notice of such breach or default, the non-breaching party may: (a) terminate this Agreement as of any date which the said non-breaching party may select provided said date is at least thirty (30) days after the fifteen(15)days in which to cure or commence curing;or(b)cure the breach or default at the expense of the breaching or defaulting party; or (c) have recourse to any other right or remedy to which it may be entitled by law, including, but not limited to, the right to all damages or losses suffered as a result of such breach, default, or termination. In the event either party waives default by the other party,such waiver shall not be construed or determined to be a continuing waiver of the same or any subsequent breach or default. 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 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 Services. 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. 11. Additional Provisions a. Limitation and Assi ng_men_t. 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, which will not be unreasonably withheld. 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. Compliance with Laws. Provider shall at all times remain in compliance with all applicable local, state, and federal laws, rules, and regulations including but not limited to all anti-discrimination laws. Pursuant to the terms of North Carolina General Statute 153A-449(b)no county may enter into a contract with a contractor unless the contractor and the contractor's subcontractors comply with the requirements of Article 2 of Chapter 64 of the North Carolina General Statutes. Where applicable,failure to maintain compliance with the requirements of Article 2 of Chapter 64 of the General Statutes constitutes Provider's breach of this Agreement. By executing this Agreement Provider affirms Provider is in compliance with Article 2 of Chapter 64 of the North Carolina General Statutes. d. 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. e. 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. f. 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. g. Ownership of Work Product. Should Provider's performance of this Agreement generate documents,items or things that are specific to the Services and that do not include confidential information or trade secrets of Provider, 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 Services as set forth in this Agreement shall be at the full risk of the County. h. Non-Approriation. Provider acknowledges that County is a governmental entity, and the validity of this Agreement is based upon the availability of public funding under 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. i. Notices. Any notice required by this Agreement shall be in writing and delivered by certified or registered mail,return receipt requested to the following: Orange County Provider's Name&Address Attention: Recycling Programs Manager Bill Davidson, General P.O. Box 8181 Manager-Durham Branch Hillsborough,NC 27278 148 Stone Park Court Durham,NC 27703 [SIGNATURE PAGE TO FOLLOW] 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: PROVIDER: WASTE INDUSTRIES,LLC By: By: f V/1 Barry acobs, Orange Co of C ssioners Printed Name and Title Attest: `i 0 Donna'Baker,Ckrk to the B r [SEAL] 17 sa °nth lac°� This instrument has been approved as to technical content. Gayle Wilson, partment Director This instrument has been pre-audited in the manner required by the Local Government Budget and Fiscal Control Act. a"X" !I• /X— Office of the Chief Financial Officer This ins ent has been approved as to form and legal sufficiency. i ce of the County Attorney 190081 A DATE(MM YY) CERTIFICATE OF LIABILITY INSURANCE 2718!2014 2014 THIS CERTIFICATE IS ISSUED AS A MATTER OF INFORMATION ONLY AND CONFERS NO RIGHTS UPON THE CERTIFICATE HOLDER. THIS CERTIFICATE DOES NOT AFFIRMATIVELY OR NEGATIVELY AMEND, EXTEND OR ALTER THE COVERAGE AFFORDED BY THE POLICIES BELOW. THIS CERTIFICATE OF INSURANCE DOES NOT CONSTITUTE A CONTRACT BETWEEN THE ISSUING INSURER(S), AUTHORIZED REPRESENTATIVE OR PRODUCER,AND THE CERTIFICATE HOLDER. IMPORTANT: If the certificate holder is an ADDITIONAL INSURED,the policy(ies)must be endorsed. If SUBROGATION IS WAIVED,subject to the terms and conditions of the policy,certain policies may require an endorsement. A statement on this certificate does not confer rights to the certificate holder in lieu of such endorsement(s). PRODUCER oNT CT NAME: Lucretia Mills Commercial Lines-(919)676-8834 PHONE 800-868-8834 nIC No;866-332-3051 Wells Fargo Insurance Services USA,Inc. ADDRESS: lucretia.mills @wellsfargo.com 8540 Colonnade Center Drive,Suite 111 INSURER(S) AFFORDING COVERAGE NAIC# Raleigh,NC 27615 INSuRERA: Chartis Specialty Insurance Company 26883 INSURED INSURER B: National Union Fire Ins.Co.of Pittsburgh,PA 19445 Waste Industries LLC INSURER C: Commerce&Industry Insurance Company 19410 3301 Benson Drive,Suite 601 INSURER D: New Hampshire Insurance Co. 23841 INSURER E: Raleigh NC 27609 INSURER F: COVERAGES CERTIFICATE NUMBER: 7293523 REVISION NUMBER: See below THIS IS TO CERTIFY THAT THE POLICIES OF INSURANCE LISTED BELOW HAVE BEEN ISSUED TO THE INSURED NAMED ABOVE FOR THE POLICY PERIOD INDICATED. NOTWITHSTANDING ANY REQUIREMENT, TERM OR CONDITION OF ANY CONTRACT OR OTHER DOCUMENT WITH RESPECT TO WHICH THIS CERTIFICATE MAY BE ISSUED OR MAY PERTAIN, THE INSURANCE AFFORDED BY THE POLICIES DESCRIBED HEREIN IS SUBJECT TO ALL THE TERMS, EXCLUSIONS AND CONDITIONS OF SUCH POLICIES.LIMITS SHOWN MAY HAVE BEEN REDUCED BY PAID CLAIMS. INSR I TYPE OF INSURANCE ADDL SUBR POLICY NUMBER MM/DDY MM DCD/YYYY LIMITS ' LTR A X COMMERCIAL GENERAL LIABILITY X EG13112875 7/1/2013 7/1/2014 EACHOCCURRENCE $ 1,000,000 CLAIMS-MADE OCCUR PREMISES Ea occu D nca $ 1,000,000 MED EXP(Any one person) $ 25,000 PERSONAL&ADV INJURY $ 1,000,000 GEN'L AGGREGATE LIMIT APPLIES PER: GENERAL AGGREGATE $ 2,000,000 POLICY PRO- �LOC PRODUCTS-COMP/OPAGG $ 1,000,000 OTHER: B AUTOMOBILE LIABILITY CA 4954059 7/112013 7/1/2014 E�aen SINGLE LIMIT $ 1,000,000 X ANY AUTO Liability coverage BODILY INJURY(Per person) $ ALL OWNED SCHEDULED Only BODILY INJURY(Per accident) $ AUTOS AUTOS X NON-OWNED PROPERTY DAMAGE $ HIRED AUTOS X AUTOS Par.ccident $ C UMBRELLA LIAR rl OCCUR BE081085714 7/1/2013 7/1/2014 EACH OCCURRENCE $ 10,000.000 X EXCESSLIAB CLAIMS-MADE AGGREGATE $ 10,000,000 DIED FxTRIETENTION$ 10,000 $ D WORKERS COMPENSATION WC62790604 7/1/2013 7/1/2014 X STATUTE ERH AND EMPLOYERS'LIABILITY y/N 1,000,000 ANY PROPRIETOR/PARTNER/EXECUTIVE NIA A E.L.EACH ACCIDENT $ OFFICER/ME MNH)BER EXCLUDED? E.L.DISEASE-EA EMPLOYE $ 1,000,000 (Mandatory In if yes,describe under E.L.DISEASE-POLICY LIMIT $ 1,000,000 DESCRIPTION OF OPERATIONS below DESCRIPTION OF OPERATIONS I LOCATIONS/VEHICLES (ACORD 101,Additional Remarks Schedule,may be attached if more space is required) County of Orange is included as additional insured with respect to General Liability. CERTIFICATE HOLDER CANCELLATION County of Orange SHOULD ANY OF THE ABOVE DESCRIBED POLICIES BE CANCELLED BEFORE THE EXPIRATION DATE THEREOF, NOTICE WILL BE DELIVERED IN Department of Financial Services ACCORDANCE WITH THE POLICY PROVISIONS. PO Box 181/200 S.Cameron St. Hillsborough,NC 27278 AUTHORIZED REPRESENTATIVE The ACORD name and logo are registered marks of ACORD 1988-2014 ACORD CORPORATION. All rights reserved. ACORD 25(2014/01) (This c tjft.te replaces cerik t.#6225614 issued m 612012013)