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HomeMy WebLinkAbout2019-374-E Solid Waste - Waste Industries contract amendmentNORTH 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: DocuSign Envelope ID: 0EB6675A-A6D7-4838-849E-08BFF1564421 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: _____________________ DocuSign Envelope ID: 0EB6675A-A6D7-4838-849E-08BFF1564421         DocuSign Envelope ID:OEB6675A-A6D7-4838-849E-08BFF1564421 3 a [Departmental Use Only] TITLE FY NORTH CAROLINA SERVICES AGREEMENT OVER$90,000.00 RFP—NO REIMBURSABLE EXPENSES ORANGE COUNTY his Services Agreement (hereinafter "Agreement"), made and entered into this day 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"). VVffNESSETH: 'That the County and Provider,for the consideration herein named,do hereby agree as follows: 1. Services a. Scope of Wark. 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. 1 DocuSign Envelope ID:OEB6675A-A6D7-4838-849E-08BFF1564421 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. 1i) Provider shall be responsible for all errors or omissions,in the performance of the Services under thi"greement. 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 perfoxnnance 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 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 Rccyciing Collection Services" issued December 18, 3 DocuSign Envelope ID:OEB6675A-A6D7-4838-849E-08BFF1564421 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 teim 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. nla 2. 3. 4. 5. 6. 7. S. 9. 10. a 4. Duration of Services a. Team. The original term of this Agreement shall begin on the date this Agreement is executed and extend through June 30,2019 (the "Initial Tenn), 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. E b. Scheduling of Services i) nla ii} nla I iii} Provider shall begin performance of the Services under this Agreement prior to rune 30,2014 but no sooner than June 2,2014. 5. Compensation I DocuSign Envelope ID:OEB6675A-A6D7-4838-849E-08BFF1564421 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 he 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. 5. 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 finnish information. 7. Insurance a. General Requirements. Provider shall obtain, at its sole expense, Commercial General Liability Insurance, Automobile Insurance, Workers' Compensation h Insurance, and any additional insurance as may be required by Owner's Risk E 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 h :/loran ecouiityiie.goy/iurchasin coittracts.as ). Provider shall not commence work until such insurance is in effect and certification thereof has been received by the Owner's Risk Manager. S, Indemnity a. IgLomnijy. The Provider agrees to defend, indemnify and hold harmless the County from all loss,liability, claims or expense,including attorney's fees,arising r 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 I DocuSign Envelope ID:OEB6675A-A6D7-4838-849E-08BFF1564421 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 wader 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 E this Agreement or a waiver of any other required compliance with this Agreement. 11. Additional Provisions DocuSign Envelope ID:OEB6675A-A6D7-4838-849E-08BFF1564421 a. Limitation and Assign rent. 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 tunes 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. Dis i to Resolution. Any and all suits or actions to enforce, interpret or seek damages with respect to any provision of,or the petformance or non-performance of, this Agreement shall be brought in the General Court of Justice of North Carolina sitting in Grange 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. Gwnershin 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. DocuSign Envelope ID:OEB6675A-A6D7-4838-849E-08BFF1564421 1n. 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. 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: I Orange County Provider's Name&Address Attention:Recycling Programs Manager Bill Davidson, General P.Q. Box 8181 Manager-Durham Branch Hillsborough,NC 27278 148 Stone Park Court Durham,NC 27703 (SIGNATURE PAGE TO FOLLOW] I I L i Ii I DocuSign Envelope ID:OEB6675A-A6D7-4838-849E-08BFF1564421 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 INDUSTRIE8,LLC . By: �,� B y• �•� � Barry Jac s, air Orange aunty card. Commissioners Prince Narne and wl C] Attest: Donn to t Board [SEAL] 17 5 r � � This instrum'9•4tus _ �a roved as to technical content. ` W Gayle Wilson, epartment Director This instrutne t bag been pre-audited in the manner required by the Local Government Budget and Fiscal Control Act. Office of the Chief Financial Officer r ed as to faun and legal sufficiency. This'n frame as been pp av g y O ce County Attorney a ;1 i 1 SHOULD ANY OF THE ABOVE DESCRIBED POLICIES BE CANCELLED BEFORE THE EXPIRATION DATE THEREOF, NOTICE WILL BE DELIVERED IN ACCORDANCE WITH THE POLICY PROVISIONS. INSURER(S) AFFORDING COVERAGE INSURER F : INSURER E : INSURER D : INSURER C : INSURER B : INSURER A : NAIC # NAME:CONTACT (A/C, No):FAX E-MAILADDRESS: PRODUCER (A/C, No, Ext):PHONE INSURED REVISION NUMBER:CERTIFICATE NUMBER:COVERAGES IMPORTANT: If the certificate holder is an ADDITIONAL INSURED, the policy(ies) must have ADDITIONAL INSURED provisions or 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). 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. OTHER: (Per accident) (Ea accident) $ $ N / A SUBR WVD ADDL INSD 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. $ $ $ $PROPERTY DAMAGE BODILY INJURY (Per accident) BODILY INJURY (Per person) COMBINED SINGLE LIMIT AUTOS ONLY AUTOSAUTOS ONLY NON-OWNED SCHEDULEDOWNED ANY AUTO AUTOMOBILE LIABILITY Y / N WORKERS COMPENSATION AND EMPLOYERS' LIABILITY OFFICER/MEMBER EXCLUDED? (Mandatory in NH) DESCRIPTION OF OPERATIONS below If yes, describe under ANY PROPRIETOR/PARTNER/EXECUTIVE $ $ $ E.L. DISEASE - POLICY LIMIT E.L. DISEASE - EA EMPLOYEE E.L. EACH ACCIDENT EROTH-STATUTEPER LIMITS(MM/DD/YYYY)POLICY EXP(MM/DD/YYYY)POLICY EFFPOLICY NUMBERTYPE OF INSURANCELTRINSR DESCRIPTION OF OPERATIONS / LOCATIONS / VEHICLES (ACORD 101, Additional Remarks Schedule, may be attached if more space is required) EXCESS LIAB UMBRELLA LIAB $EACH OCCURRENCE $AGGREGATE $ OCCUR CLAIMS-MADE DED RETENTION $ $PRODUCTS - COMP/OP AGG $GENERAL AGGREGATE $PERSONAL & ADV INJURY $MED EXP (Any one person) $EACH OCCURRENCE DAMAGE TO RENTED $PREMISES (Ea occurrence) COMMERCIAL GENERAL LIABILITY CLAIMS-MADE OCCUR GEN'L AGGREGATE LIMIT APPLIES PER: POLICY PRO-JECT LOC CERTIFICATE OF LIABILITY INSURANCE DATE (MM/DD/YYYY) CANCELLATION AUTHORIZED REPRESENTATIVE ACORD 25 (2016/03) © 1988-2015 ACORD CORPORATION. All rights reserved. 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