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HomeMy WebLinkAboutBFI Waste Services, LLC - Recycling Processing Agmnt - 9/9/2019RECYCLING PROCESSING SERVICES AGREEMENT This Recycling Processing Services Agreement (the "Agreement") is made and entered into this 9� day of �pif�hel, , 2019, by and between City of Waterloo ("Supplier"), and BFI Waste Services, LLC, dba Republic Services of Cedar Falls, a Delaware corporation qualified to do and actually doing business in the State of Iowa ("Company"). (Supplier and Company may be referred to as a "Party" or collectively as the "Parties.") RECITALS WHEREAS, Supplier desires that Company provide Services as defined herein at its recycling center(s) located at 1415 E. Dunkerton Road, Cedar Falls, IA and 901 Ingleside Drive SW, Cedar Rapids, IA ("Facility") as set forth in this Agreement and Company desires to do so, all in accordance with the terms of this Agreement. NOW, THEREFORE, in consideration of the promises and the mutual covenants contained in this Agreement, the Parties agree as follows: TERMS AND CONDITIONS 1. Exhibits. All Exhibits attached to the body of this Agreement are an integral part of the Agreement and are incorporated herein. Exhibit A Scope of Processing Services Exhibit B Pricing Exhibit C Facility Rules 2. Term. Company shall begin to provide Services on December 1, 2019 (the "Effective Date") and, subject to early termination pursuant to other provisions of this Agreement, the term of this Agreement shall expire at close of business on December 31, 2024 (the "Initial Term"). This Agreement shall automatically renew for up to three (3) successive periods of two (2) years each (each a "Renewal Term") unless either Party provides written notice of non -renewal to the other Party at least ninety (90) days prior to the expiration of the Initial Term or the then -current Renewal Term, as the case may be, or unless the Agreement is otherwise terminated in accordance with the terms hereof. The Initial Term and the Renewal Terms are collectively referred to herein as the "Term." 3. Termination for Breach. If either Party breaches any material provision of this Agreement and such breach is not substantially cured within thirty (30) days after receipt of written notice from the non -breaching Party specifying such breach in reasonable detail, the non -breaching Party may terminate this Agreement by giving sixty (60) days' written notice of termination to the breaching Party. However, if the breach cannot be substantially cured within thirty (30) days, the Agreement may not be terminated if a cure is commenced within the cure period and for as long thereafter as a cure is diligently pursued. Upon termination, Company shall complete (and Supplier shall pay for) the Services with respect to only those materials received on or before the termination effective date, and Company shall have no further obligation to perform any Services under this Agreement but may be liable to Supplier for any losses incurred by Supplier as a result of termination caused by the material breach of Company. In lieu of teiinination, Supplier may require a performance bond from Company, provided, however, that such actions shall not be deemed a waiver of Supplier's right to terminate this Agreement at any later date. Supplier may also terminate this Agreement upon written notice to Company if Company becomes the subject of any petition for relief under federal bankruptcy law or state insolvency laws. 4. Acceptable Material; Unacceptable Material; Services. Supplier and/or its contractors shall deliver to the Facility, in compliance with Exhibits A and C, all of the Acceptable Material Supplier and/or its contractors receives or collects from each of its residential, commercial, industrial and institutional recycling customers within the City of Waterloo. "Acceptable Material" means the materials listed under the heading "Acceptable Material" in Exhibit A. Supplier will make reasonable efforts to eliminate the scavenging of Acceptable Material prior to delivery of such material to the Facility. "Unacceptable Material" means the materials listed under the heading "Unacceptable Material" in Exhibit A. Company will receive, process, and market all Acceptable Material delivered to the Facility by Supplier ("Services"). If market conditions develop that limit or inhibit Company from selling some or all of the Acceptable material, Company may notify Supplier of such changed conditions, and the Parties will negotiate in good faith to (a) redefine Acceptable and Unacceptable Materials, (b) suspend or discontinue any or all Services, or (c) dispose of the Acceptable Material (as currently defined) in a landfill and update the pricing to Supplier accordingly. Any such actions, if taken, may be reversed or further changed as market conditions dictate, upon agreement of the Parties. 5. Title. Supplier represents and warrants to Company that it has the legal right to deliver all materials it delivers to Company and for Company to take title thereto. Title to Acceptable Material delivered by Supplier shall pass to Company upon acceptance at the Facility. Title to and liability for Unacceptable Material shall never pass to Company. 6. Expected Tonnage. Supplier shall deliver all of the Acceptable Material it collects to the Facility, which the Parties expect will be approximately 250 tons per month (the "Expected Monthly Tonnage"). After May 1, 2020 at any time by request of either Party, or in the event that Supplier's volume exceeds the Expected Monthly Tonnage by more than 20% during any rolling three-month period, the Parties shall confer in good faith about whether the Expected Monthly Tonnage should be adjusted or if the Agreement should be modified to address excess material volume in a manner consistent with the purposes and intents of this Agreement. 7. Right to Inspect; Unacceptable Load or Materials. Company shall have the right to inspect all inbound loads from Supplier after such loads are dumped on the tip floor at the Facility to ensure each load is free of significant trash, wet waste, hazardous waste, medical waste or other Unacceptable Material. An "Unacceptable Load" means any delivery from Supplier that contains or appears to contain (a) by volume or weight more than 25% Unacceptable Material; (b) any amount of hazardous, toxic, radioactive or similarly dangerous Unacceptable Material; or (c) any large or unsafe Unacceptable Materials. Company will provide notice to Supplier of its receipt of an Unacceptable Load pursuant to the Unacceptable Load Protocol set forth in Exhibit A. The Unacceptable Load Protocol also sets forth Company's options for managing Unacceptable Loads and/or Unacceptable Materials and the applicable fees. 8. Pricing; Reporting; Payment. (a) Processing Fee. Supplier shall pay a processing fee to Company in the amount(s) set forth in Exhibit B for each ton of inbound material that it delivers to Company. The processing fee(s) shall be assessed to Supplier monthly and in arrears. (b) Commodity Revenue. Company shall pay commodity revenue to Supplier each month equal to 100% of Supplier's Average Commodity Revenue up to the amount of Supplier's processing fees due for that month. "Average Commodity Revenue" (or "ACR") means, based on Supplier's Average Commodity Mix (as set forth in Exhibit B), the sum of the current month market values (set by the applicable Pricing Indicators for each commodity as identified in Exhibit B) including any negative commodity market values and Company's charges for hauling and disposing of contaminated, unmarketable and/or Unacceptable Material ("Residue"). ACR will be calculated in arrears for the total tonnage of material received from Supplier each month. Any ACR that exceeds the processing fee(s) for that month shall be shared by the Parties according to the percentages set forth in Exhibit B ("ACR Share"). (c) Reporting; Payment or Invoicing. Company will provide Supplier with a monthly report of the total tons received for the previous calendar month and the corresponding ACR calculation. For ease of billing, Company will net the processing fees and the ACR each month. If the ACR exceeds the processing fee(s), Company will remit payment to Supplier pursuant to the ACR Share set forth in Exhibit B. If the ACR is less than the processing fee(s), Company will issue an invoice to Supplier for the balance due on the processing fee(s). (d) Payment. All processing fee payments shall be due and payable within thirty (30) days from the date of Supplier's invoice. Interest shall accrue on all invoices not paid within fourteen (14) days of the due date, at the rate of one-half percent (0.5%) per month from the date due until the date paid. If Supplier disputes any part of an invoice, it shall remit payment on that part of the invoice which it does not dispute in good faith. The Parties shall cooperate with diligence to resolve any disputes, and Supplier will not be charged a late fee for any payment made on a disputed charge after the due date. 9. Rate Adjustments. (a) Annual Adjustments. Company shall increase the processing fee(s) and Residue hauling and disposal charges on each anniversary of the Effective Date of this Agreement in an amount equal to four percent (4%). (b) Change in Law Adjustments. Company may increase the processing fee(s) and Residue hauling and disposal charges from time to time as a result of increases in costs incurred by Company due to (i) changes in local, state, federal or international rules, ordinances or regulations; or (ii) changes in taxes, fees or other governmental charges (other than income or real property taxes). Supplier shall negotiate with Company in good faith concerning any rate increase proposed by Company and related terms, including the possibility of a future rate reduction if costs incurred by Company arising from any such factors are later reduced. Company shall provide proof and documentation to support and address the amount of rate change. (c) Changes in Market Conditions. See paragraph 4 above. 10. Indemnification for Unacceptable Material. If Company suffers any damage, loss or expense resulting from the inclusion of any Unacceptable Material in any load delivered by Supplier to the Facility, then subject to reasonable proof from Company, Supplier shall reimburse Company for such damages, losses and expenses, and federal, state or local fines and penalties, regardless of any allegation that Company should have discovered the inclusion of such Unacceptable Material prior to accepting delivery of such load. Notwithstanding the foregoing, Company shall use commercially reasonable means to identify the presence of Unacceptable Material before accepting a load for delivery. 11. Risk Allocation. Except as otherwise specifically set forth herein, each Party shall be responsible for any and all claims for personal injuries or death, or the loss of or damage to property, only to the extent caused by that Party's negligence or acts of willful misconduct or those of its employees, contractors, subcontractors, or agents. 12. Compliance with Laws. Company warrants that the Services will be performed in a good, safe and workmanlike manner, and in compliance with all applicable international, federal, state, provincial and local laws, rules, regulations, and permit conditions relating to the Services, including any applicable requirements relating to protection of human health, safety, or the environment (collectively, "Applicable Law"). The Parties acknowledge that Supplier intends to update its current ordinance on solid waste collection and in doing so will not intentionally create any conflict between such ordinance and this Agreement. In the event any provision of this Agreement conflicts with an ordinance of Supplier, the Parties will promptly confer in good faith to discuss an appropriate resolution. Upon prior written notice to Supplier, Company reserves the right to decline to perform Services which, in its judgment, it cannot perform in a lawful manner or without risk of harm to human health, safety or the environment. 13. Insurance. At all times during the term of this Agreement, Supplier shall maintain, and shall require its subcontractors to maintain, the following insurance coverages: Workers Compensation: Coverage A Statutory Coverage B — Employer's Liability $1,000,000 each Bodily Injury by Accident $1,000,000 policy limit Bodily Injury by Disease $1,000,000 each occurrence Bodily Injury by Disease Automobile Liability: Bodily Injury/Property Damage Combined — Single Limit Commercial General Liability: Bodily Injury/Property Damage Combined — Single Limit $3,000,000 Coverage applies to all owned, non -owned, hired and leased Vehicles (including trailers) and must include MCS -90 Endorsement for pollution liability coverage $2,000,000 each occurrence $3,000,000 general aggregate (including products/completed Operations) All policies required herein shall be written by insurance carriers with a rating of A.M. Best of at least "A-" and a financial size category of at least VII. Supplier shall deliver a Certificate of Insurance evidencing the foregoing policies to Company before Supplier delivers any materials to the Facility. The certificate and the insurance policies required herein shall contain a provision that the coverage will not be cancelled or allowed to expire until at least thirty (30) days prior written notice has been provided to Supplier. Company shall be identified as an additional insured under all of the policies required above, except the Workers Compensation policy. Such policies shall be primary and the insurance providers shall agree to waive their rights of subrogation against Company. 14. Force Majeure. "Force Majeure" means any act, event or condition materially and adversely affecting the ability of a Party to perform a Party's fundamental purpose for entering into the Agreement or comply with any material obligation, duty or agreement required under this Agreement, if such act, event, or condition is beyond the reasonable control of the nonperforming Party or its agents relying thereon, is not the result of the willful or negligent action, inaction or fault of the Party relying thereon, and the nonperforming Party has been unable to avoid or overcome the act, event or condition by the exercise of due diligence, including, without limitation: (a) an act of God, epidemic, landslide, lightning, earthquake, fire, explosion, storm, flood or similar occurrence; (b) an act of public enemy, war, blockage, insurrection, riot, general unrest or restraint of government and people, civil disturbance or disobedience, sabotage, act of terrorism or similar occurrence; (c) a strike, work slowdown, or similar industrial or labor action; (d) an order or judgment or other act of any federal, state, county or local court, administrative agency or governmental office or body; or (e) adoption or change (including a change in interpretation, enforcement or permit requirement) of any international, federal, state or local law or regulation after the Effective Date of this Agreement. Neither Party shall be liable to the other for damages if such Party's performance is delayed or prevented due to a Force Majeure event. The affected Party shall notify the other Party of an event of Force Majeure as soon as commercially practicable, describe its nature as specifically as possible, provide an estimate of the duration of the event and/or its effects, and provide an update about status of the event and/or its effects at least weekly. In the event of increased volume due to a Force Majeure event, Company and Supplier shall negotiate the additional payment to be made to Company. If Company declares a Force Majeure event because the its Facility is shut down for maintenance repair or otherwise for an indefinite period or any period expected to exceed five (5) days, Company shall provide to Supplier a viable option to process recycling. 15. Miscellaneous. (a) This Agreement represents the entire agreement between the Parties and, as of the Effective Date, supersedes all prior agreements, whether written or verbal, that may exist for the same Services. Such other agreement(s) shall terminate as of the Effective Date. (b) Company shall have no confidentiality obligation with respect to the handling of any recyclable materials that come into its possession. (c) Neither Party shall assign this Agreement or delegate any responsibilities under this Agreement without the other Party's prior written consent, which consent shall not be unreasonably withheld. Notwithstanding the foregoing, Company may assign this Agreement without Supplier's consent to its parent company or any of its subsidiaries. This Agreement shall be binding upon and inure solely to the benefit of the Parties and their permitted successors and assigns. (d) Company may provide any of the Services covered by this Agreement through any of its affiliates or subcontractors, provided that Company shall remain responsible for the performance of all such services and obligations in accordance with this Agreement and provided that Company has first provided to Supplier a list of such affiliates or subcontractors and Supplier has not, within fourteen (14) days, made objection to any such affiliate or subcontractor. (e) No intellectual property rights in any of Company's IP are granted to Supplier under this Agreement. (f) All provisions of the Agreement shall be strictly complied with and conformed to by the Parties, and this Agreement shall not be modified or amended except by written agreement duly executed by the Parties. (g) If any provision of this Agreement is declared invalid or unenforceable, it shall be modified so as to be valid and enforceable but so as most nearly to retain the intent of the Parties. if such modification is not possible, such provision shall be severed from this Agreement. In either case, the validity and enforceability of the remaining provisions of this Agreement shall not in any way be affected thereby. (h) Failure or delay by either Party to enforce any provision of this Agreement will not be deemed a waiver of future enforcement of that or any other provision. (i) if any litigation is commenced under this Agreement, the successful Party shall be entitled to recover, in addition to such other relief as the court may award, its reasonable attorneys' fees, expert witness fees, litigation related expenses, and court or other costs incurred in such litigation or proceeding. (j) This Agreement shall be interpreted and governed by the laws of the State where the Services are performed. (k) Supplier and Company agree that electronic signatures are valid and effective, and that an electronically stored copy of this Agreement constitutes proof of the signature and contents of this Agreement, as though it were an original. (1) Terms capitalized in this Agreement but not defined in the Agreement shall have the meaning ascribed to them in Exhibit A or Exhibit B. IN WITNESS HEREOF, the Parties have entered into this Agreement as of the date first written above. City of Waterloo, Iowa BFI Waste Services, LLC, dba Republic Services of Cedar Falls By: \,-rk �i� �`(; �, Wee By: Quentin Hart, Mayor Attest: Kelley Felc City Clerk Name: 7 srye 4e�r Title: Qi ne ro•f� /�a n ��a EXHIBIT A SCOPE OF PROCESSING SERVICES 1. Material Stream(s). Supplier shall deliver or cause to be delivered to Company the following materials: 2. Definitions. (a) "Clean OCC" means clean (95% and greater) cardboard (loose or baled) which is Source Separated from all other materials and/or Residue. (b) "Commercial Single Stream" means loads collected from commercial, industrial and/or institutional customers comprised primarily of OCC (or as otherwise agreed in Exhibit B) and the remainder being other Acceptable Materials. (c) "Residential Single Stream" means loads collected from residential households comprised of commingled Acceptable Materials that are collected in a single collection container. (d) "Residential Dual Stream" means an inbound stream in which all recyclable paper and cardboard are collected and delivered to the Facility separate from all other Acceptable Materials from each residential household for whom Supplier collects Residential Dual Stream Recyclables. (e) "Source Separated" means a single type of Acceptable Material that is collected and delivered to the Facility and not mixed with any other type of Acceptable Material. 3. Unacceptable Load Protocol. The below "Unacceptable Load Protocol" details the processes the Parties must follow when a load of Unacceptable Material is received by the Facility from Supplier or from Supplier's hauler: (a) If Company determines that a load of material is unacceptable, Company will make a commercially reasonable effort to evidence the Unacceptable Material by taking photographs of the Unacceptable Load. Company shall notify Supplier that a load has been found unacceptable, and Supplier will have the option to arrange for pickup of Unacceptable Material in such load. (b) If Supplier does not pick up Unacceptable Material; Company has sole discretion to determine whether it will continue to process the load at the regular Processing Fee rate and charge Supplier a contamination fee of $75.00 per ton of delivered material, or dispose of the load or reject the load and charge Supplier for all costs incurred and/or fees assessed against Company resulting from Supplier's delivery of the Unacceptable Load and/or Unacceptable Materials (including without limitation storage, reloading, clean-up, transportation, alternate disposal, NOVs, etc.). Clean OCC Commercial Single Stream _X_ Residential Single Stream Residential Dual Stream Source Separated 2. Definitions. (a) "Clean OCC" means clean (95% and greater) cardboard (loose or baled) which is Source Separated from all other materials and/or Residue. (b) "Commercial Single Stream" means loads collected from commercial, industrial and/or institutional customers comprised primarily of OCC (or as otherwise agreed in Exhibit B) and the remainder being other Acceptable Materials. (c) "Residential Single Stream" means loads collected from residential households comprised of commingled Acceptable Materials that are collected in a single collection container. (d) "Residential Dual Stream" means an inbound stream in which all recyclable paper and cardboard are collected and delivered to the Facility separate from all other Acceptable Materials from each residential household for whom Supplier collects Residential Dual Stream Recyclables. (e) "Source Separated" means a single type of Acceptable Material that is collected and delivered to the Facility and not mixed with any other type of Acceptable Material. 3. Unacceptable Load Protocol. The below "Unacceptable Load Protocol" details the processes the Parties must follow when a load of Unacceptable Material is received by the Facility from Supplier or from Supplier's hauler: (a) If Company determines that a load of material is unacceptable, Company will make a commercially reasonable effort to evidence the Unacceptable Material by taking photographs of the Unacceptable Load. Company shall notify Supplier that a load has been found unacceptable, and Supplier will have the option to arrange for pickup of Unacceptable Material in such load. (b) If Supplier does not pick up Unacceptable Material; Company has sole discretion to determine whether it will continue to process the load at the regular Processing Fee rate and charge Supplier a contamination fee of $75.00 per ton of delivered material, or dispose of the load or reject the load and charge Supplier for all costs incurred and/or fees assessed against Company resulting from Supplier's delivery of the Unacceptable Load and/or Unacceptable Materials (including without limitation storage, reloading, clean-up, transportation, alternate disposal, NOVs, etc.). (c) Company will make a commercially reasonable effort to conduct its visual inspection of each load while Supplier's driver is still on site. If a load is deteiruined to be unacceptable, the driver will be notified immediately and will be advised whether the Unacceptable Load will be processed and assessed a contamination fee or rejected and must be removed from the Facility. If the driver is no longer at the Facility when such a determination is made, Company will provide telephonic or email notice to Supplier's contact on file. (d) Upon request of Company, Supplier will provide copies of the photographs taken of each Unacceptable Load. 4. Acceptable Material. All material must be substantially empty, clean and dry. • Old newspaper (ONP) • Chipboard • Residential mixed paper (junk mail, office/computer paper, file folders, telephone books, etc.) • Old corrugated containers (OCC) • Magazines and catalogs • Plastic containers labeled (#1, #2, #3, #4, #5, #6, #7) (excluding Styrofoam and plastic bags) • Aluminum beverage containers • Pie tins and aluminum foil • Steel beverage and food containers 5. Unacceptable Material. • Yard waste • Styrofoam • Pizza boxes, unless free of any food or grease residue • Food • Any liquids • Diapers • Clothing/textiles • Plastic bags or bagged material (newsprint may be placed in a Kraft bag) • Mirrors, window or auto glass, light bulbs, ceramics • Oil or antifreeze containers • Coat hangers • Paint cans • Medical waste/sharps 1. Processing Fees. Commercial Single Stream: Residential Single Stream: Residential Dual Stream: Clean OCC: Source Separated: 2. Transportation Fee. EXHIBIT B PRICING $n/a per ton of material delivered to $_114.40_ per ton of material delivered $n/a per ton of material delivered to $n/a per ton of material delivered to $ n/a per ton of material delivered to Rate: $_67.60 per ton the Facility to the Facility the Facility the Facility the Facility 3. Annual Adjustments. The processing fee(s) and the rate for hauling and disposal of residue are subject to annual adjustment as set forth in Section 9(a) of the Agreement. 4. Supplier's Average Commodity Mix. Supplier's Average Commodity Mix is the average percentage of each commodity in each load of material delivered by Supplier. A material composition audit will be conducted within the first thirty (30) days of the Agreement to establish Supplier's Average Commodity Mix. Subsequent material composition audits will be conducted annually or more frequently at Company's discretion, at Company's expense. 5. Pricing Indicators. The Pricing Indicators are the agreed-upon indices, references, market values, actual Facility costs, or charges assigned to each commodity or Residue each month. The most currently -available Pricing Indicators will be used each month to value Supplier's commodities, except that Supplier's rate for the hauling and disposal of Residue will adjust only pursuant to Section 9 of the Agreement. 6. ACR Share. Concurrently with each invoice that Company delivers to Supplier, Company shall pay commodity revenue to Supplier each month equal to 60% of Supplier's ACR in the immediately prior month. 7. ACR Pricing Model. The below ACR Pricing Model(a) shall be used to document Supplier's Average Commodity Mix and the agreed upon Pricing Indicators for each Material Stream (as identified in Section 1 of Exhibit A) that will be received from Supplier. The Model shall also be used each month to report total tons received, current values associated with the Pricing Indicators and calculation of the ACR and ACR Share. ACR PRICING MODEL Monthly Recycling Only Tons (no residu Composite Tons Pricing Indicator Material Comp. V. 0 0 0- 0 0 M h 0 00 Oh V 7 O 0 69 69 69 69 69 69 60 69 69 69 69 0 vi O\ c-- 64.30 tons 192.55 tons 0 - '.O 0 - .- 22.40 tons O ^. 0 0 0 0 0 o vi rn 69 66699 69 664 U U p O Z O 0W, o O 0 0 kr; o o 69 0 6s o a CTS o a kr) 00 60 h No 00 o h N W M M 01 ms: ry U U 0 O 69 69 69 69 Total Tons (with residual) O — 69 O 6699 Net Value ($/ton) 00 i Z Net Rebate ($/ton): W F -41" Facility Hours of Operation: Monday through Friday: Holiday Closings: EXHIBIT C FACILITY RULES 7 a.m. until 3 p.m. New Year's Day, Memorial Day, July 4, Labor Day, Thanksgiving Day, Christmas Day If Supplier has a need to make deliveries to the Facility at times other than during the above -listed times, the Parties may agree to alternative delivery times and pricing. Scale House Rules: 1. All drivers shall approach the scale slowly. 2. All drivers shall report to the scale house operator and identify the origin of their load and the material type (Residential Single Stream, Residential Dual Stream, Commercial Single Stream, Source Separated, or Clean OCC). 3. All trucks and/or trailers must be weighed inbound and outbound and all drivers must pick up a scale ticket. Tip Floor/Yard Rules: 1. All drivers shall maintain safe speeds while traveling within the yard. 2. All drivers shall follow all posted signs indicating traffic pattern directions. 3. All drivers shall follow directions issued by the Facility's tip floor attendant or loader operator. 4. All drivers shall queue their vehicles only where directed by the floor attendant or scale operator. 5. Drivers shall not allow litter to be discharged from the body or cab of their trucks. 6. All drivers shall wait for operator's 'OK' to enter the tip floor before dumping. 7. If it is necessary to exit the vehicle only one person, the driver or the helper, is allowed out of the vehicle at a time. 8. The following personal protective equipment must be worn whenever a driver or helper is outside of their vehicle: (a) ANSI Class II high visibility vest (b) Hard hat (c) Safety glasses 9. When observing the off-loading of material, all drivers and/or helpers must stay within six (6) feet of their vehicle at all times.