HomeMy WebLinkAboutAgenda 06-18-19 Item 8-n - Contract Extension with Waste Industries for Urban Recycling Collection
ORANGE COUNTY
BOARD OF COMMISSIONERS
ACTION AGENDA ITEM ABSTRACT
Meeting Date: June 18, 2019
Action Agenda
Item No. 8-n
SUBJECT: Contract Extension with Waste Industries for Urban Recycling Collection
DEPARTMENT: Solid Waste Management
ATTACHMENT(S):
Contract Amendment #1
Original Contract
INFORMATION CONTACT:
Robert Williams, 919-918-4904
PURPOSE: To approve Contract Amendment #1 authorizing a five year extension of the
contract with Waste Industries, LLC to continue providing weekly curbside recycling collection
services within the urban areas of Orange County.
BACKGROUND: On February 18, 2014 following a Request for Proposals, the BOCC awarded
a service agreement to Waste Industries for the provision of weekly curbside recycling services
within the towns of Carrboro, Chapel Hill and Hillsborough to be managed by Orange County
Solid Waste, with the option to renew the contract for an additional five year period.
The initial 5-year period expires on June 30, 2019, and the proposed Contract Amendment #1
extends service for an additional five years.
FINANCIAL IMPACT: The initial cost of service is $3.93/household/month with an estimated
cost during FY 2019-20 of $912,546 to service approximately 19,350 households. The estimates
have been adjusted for a 1% growth within the urban collection service area annually. To
further manage costs, any CPI adjustment will be capped at 4% annually. The cost over five
years, accounting for growth and CPI adjustments, is estimated at $5,000,000.
SOCIAL JUSTICE IMPACT: The following Orange County Social Justice Goal is applicable to
this item:
• GOAL: ESTABLISH SUSTAINABLE AND EQUITABLE LAND-USE AND
ENVIRONMENTAL POLICIES
The fair treatment and meaningful involvement of people of all races, cultures, incomes
and educational levels with respect to the development and enforcement of
environmental laws, regulations, policies, and decisions. Fair treatment means that no
group of people should bear a disproportionate share of the negative environmental
consequences resulting from industrial, governmental and commercial operations or
policies.
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Orange County seeks to create, preserve, and protect a natural environment that includes clean
water, clean air, wildlife, important natural lands, and sustainable energy for present and future
generations.
RECOMMENDATION(S): The Manager recommends that the Board approve and authorize the
Chair to sign Contract Amendment #1 authorizing a five year extension of the contract with
Waste Industries, LLC to continue providing weekly curbside recycling collection services within
the urban areas of Orange County.
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NORTH CAROLINA
ORANGE COUNTY CONTRACT AMENDMENT #1
THIS CONTRACT AMENDMENT ("Amendment") is made and
entered into this 1st day of July, 2019 by and between ORANGE
COUNTY (hereinafter referred to as "County") and WASTE INDUSTRIES,
LLC (hereinafter referred to as "Provider").
WITNESSETH:
THAT WHEREAS, the County and Provider entered into a contract dated
February 18, 2014 for weekly urban curbside
recycling collection services within three
municipalities in Orange County (hereinafter the "Original
Agreement"); and
WHEREAS, the County and Provider desire to amend the Original
Agreement while keeping in effect all terms and conditions of the
Original Agreement, as amended, not inconsistent with the terms and
conditions set forth below.
NOW THEREFORE, for and in consideration for the mutual covenants and
agreements made in the Original Agreement, as amended, and herein, the
parties agree to amend the Original Agreement, as amended, as follows:
1. The Term of the Original Agreement is hereby extended until June 30, 2024.
2. In Paragraph 5(a), Compensation for Services, the maximum amount payable for
Services is hereby increased to Five Million Dollars ($5,000,000.00). This amount
shall not be exceeded without written amendment duly executed by authorized
representatives of both parties. Effective July 1, 2019, County shall hereby
compensate Provider for collection services at a rate of $3.93 per unit per month, ,
which rates may be subject to an annual adjustment on July 1 of each year beginning
July 1, 2020 in an amount not to exceed four percent (4%). Provider shall invoice the
County on a monthly basis based on the number of carts, which at the time of
execution of this amendment is estimated to be 18,968.
3. Paragraph 11(c), Compliance with Laws, is replaced with the following:
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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 state and federal anti-discrimination laws, policies, rules, and
regulations and the Orange County Non-Discrimination Policy and Orange County
Living Wage Policy (each policy is incorporated herein by reference and may be
viewed at
http://www.orangecountync.gov/departments/purchasing_division/contracts.php.).
Any violation of this requirement is a breach of this Agreement and County may
immediately terminate this Agreement without further obligation on the part of the
County. This paragraph is not intended to limit and does not limit the definition of
breach to discrimination. By executing this Agreement Provider certifies that
Provider has not been identified, and has not utilized the services of any agent or
subcontractor identified, on the list created by the State Treasurer pursuant to G.S.
147-86.58. By executing this Agreement Provider certifies that Provider has not
been identified, and has not utilized the services of any agent or subcontractor
identified, on the list created by the State Treasurer pursuant to G.S. 147-86.81. By
executing this Agreement Provider affirms Provider is and shall remain in
compliance with Article 2 of Chapter 64 of the North Carolina General Statutes.
4. The following language is added to the end of Paragraph 11(e), Entire Agreement:
This Agreement together with any amendments or modifications may be executed
electronically. All electronic signatures affixed hereto evidence the consent of the
Parties to utilize electronic signatures and the intent of the parties to comply with
Article 11A and Article 40 of North Carolina General Statute Chapter 66.
5. Except for the changes made herein, the Original Agreement, as amended, shall
remain in full force and effect to the extent it is not inconsistent with this
Amendment.
IN TESTIMONY WHEREOF, this Amendment has been executed by the
parties hereto, as of the date first above written.
ORANGE COUNTY: PROVIDER:
__________________________ _________________________
Penny Rich, Chair By: ______________________
Orange County Board of Commissioners Title: _____________________
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[Departmental Use Only]
TITLE
FY
NORTH CAROLINA I
SERVICES AGREEMENT OVER$90,000.00
RFP—NO REIMBURSABLE EXPENSES
ORANGE COUNTY
:
his Services Agreement (hereinafter "Agreement"), made and entered into this
�da of February, 2014, ("Effective Date") by and between Orange County,North
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Carolina a body politic and corporate of the State of North Carolina (hereinafter, the
"County")and Waste Industries,LLC, (hereinafter,the "Provider").
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WITNESSETH: E
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, fi
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.
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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.
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iv) The services to be performed under this Agreement consist of Basic
Services, as described and designated in Section 3 hereof. The services : a
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
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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.
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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 andd 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
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other relationship.
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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
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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,
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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 i
shall control. Should such conflict arise the priority of documents shall be a
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)
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Task Milestone Date
1. n/a
2.
3.
4,
5.
6.
7.
8.
9.
10.
iii) 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
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commencing as set forth below. The term may be extended for an additional five
(5) years by mutual agreement of the parties (an "Extension Tenn" 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.
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b. Scheduling of Services
i) n/a k
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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
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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.
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b. Additional Services. Count shall not be responsible for costs related to any
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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.
6. 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.
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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:Horan ecountync.troy/purchasing,contracts.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. Ind emni 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 Pe
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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
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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
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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, 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
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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.
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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. Sevexability. 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.
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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.
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h. Non-Appropriation. 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.
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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 r
P.O.Box 8181 Manager-Durham Branch
Hillsborough,NC 27278 148 Stone Park Court
Durham,NC 27703
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[SIGNATURE PAGE TO FOLLOW]
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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
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By yy By. 1 }
BarCy Jac s, air _
Orange ounty oard Commissioners Print Name and atle
Attest: C
Donn ors o to t Board `
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This instrurn 'gas `a��iproved as to technical content.
Gayle Wilson, epartment Director
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This instrume t has been pre-audited in the manner required by the Local Government
Budget and Fiscal Control Act.
Office of the Chief Financial Officer
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This in trume as been pproved as to form and legal sufficiency.
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County Attorney
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