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2024-10-10 Work SessionKodiak Island Borough Assembly Work Session Assembly Chambers Thursday, October 10, 2024, 6:30 p.m. Work Sessions are informal meetings of the Assembly where members review forthcoming programs of the borough, receive progress reports on current program or projects or receive other similar information from the manager. All discussions and conclusions are informal and there are no official actions taken. The Assembly also review the upcoming regular meeting agenda packet and request and/or receive information from staff. This work session is open to the public and will be broadcast on the Borough's YouTube Channel. Meeting packets are available online. Page 1. CITIZENS' COMMENTS 1-907-486-3231 or Toll Free 1-855-492-9202 2. AGENDA ITEMS a. Discussion Of Contract No. FY2019-25B, Amendment #2, 4-205 Residential And Commercial Solid Waste Collection And Recycling Services Agenda Item Report - Pdf b. Review of Ordinance No. FY2025-03, Amending Title 8 Health 206-226 And Safety Chapter 8.25 Solid Waste Collection And Disposal To Clarify Language And Requirements For Solid Waste Services Agenda Item Report - Pdf C. Discuss Ordinance Amending Various Sections Of The Kodiak 227-272 Island Borough Code Title 17 Zoning To Include Defined Intent And Development Standards For Accessory Dwelling Units Aaenda Item Reoort - Pdf d. Discuss The KIB Joint Use Agreement With The Kodiak Island 273-293 Borough School District And The City of Kodiak Agenda Item Report - Pdf 3. PACKET REVIEW The DRAFT regular meeting packet is available online at Kodiak Island Borouah - Meetina TVDe List (civicweb.net). a. UNFINISHED BUSINESS • Contract No. FY2019-25B, Amendment #2, With Waste Connections of Alaska, Inc. DBA Alaska Waste For Residential And Commercial Solid Waste Collection And Recycling Services Page 1 of 329 • Ordinance No. FY2025-03, An Ordinance Of The Assembly Of The Kodiak Island Borough Amending Title 8 Health And Safety Chapter 8.25 Solid Waste Collection And Disposal To Clarify Language And Requirements For Solid Waste Services CONTRACTS • Contract No. FY2019-22B, Amendment No. 2 to Contract No. FY2019-22 for Professional Legal Services with Keene & Currall, P.P.C. RESOLUTIONS • Resolution No. FY2025-09, Ratifying And Certifying The Results Of The October 1, 2024, Regular Municipal Election ORDINANCES FOR INTRODUCTION • Ordinance No. FY2025-08, An Ordinance Of The Kodiak Island Borough Accepting And Appropriating Grant Funds For The 2020/2021 Statewide Salmon Disaster OTHER ITEMS • Administration Of Oath Of Office To Newly Elected Officials • Presentations To Outgoing Assembly Members 4. MANAGER'S COMMENTS a 2024-10-10 Borough Manager's Report 294-300 5. CLERK'S COMMENTS a 2024-10-10 Borough Clerk's Report 301 -305 6. ASSEMBLY MEMBERS' COMMENTS 7. MAYOR'S COMMENTS 8. INFORMATIONAL MATERIALS a Meeting Materials 306-329 Page 2 of 329 This meeting is open to the public and will be broadcast on the Borough's YouTube Channel. Meeting packets are available online. Please subscribe to get meeting notifications when meeting packets are published. For public comments, please call (907) 486-3231 or (855) 492-9202. Page 3 of 329 AGENDA ITEM #2.a. KODIAK ISLAND BOROUGH STAFF REPORT OCTOBER 10, 2024 4 ' x ASSEMBLY WORK SESSION SUBJECT: Discussion Of Contract No. FY2019-25B, Amendment #2, Residential And Commercial Solid Waste Collection And Recycling Services ORIGINATOR: Aimee Williams, Borough Manager RECOMMENDATION: This item was postponed from the October 3, 2024, regular meeting in order to allow more discussion at this work session. DISCUSSION: The Kodiak Island Borough Assembly established the Solid Waste Contract Committee (SWCC) with Resolution No. FY2024-12 to evaluate, develop, and clarify inconsistencies and ambiguities present in the current solid waste contract. SWCC began meeting January 2024 and held eight meetings to discuss clarifications and updates needed to rectify the inconsistencies and ambiguities in the contract. At their most recent meeting on August 28, 2024, the Committee reviewed the edits provided by the Borough Attorney. Attached please find said draft which includes five sections: General Formatting Changes, Definition Modifications, Establishment of New Fees, Reporting Period, and Billing Units & Services Required Table and Flow Chart. Staff believes that the changes made will produce a better aligned contract with the Borough code and provide clearer language for all parties. ALTERNATIVES: FISCAL IMPACT: OTHER INFORMATION: Kodiak Island Borough Discussion Of Contract No. FY2019-25B, Amendment #2, Residential And Com... Page 4 of 329 AGENDA ITEM #2.a. 8/30/2024 Version DRAFT SECOND AMENDMENT FOR CONTRACT NO. FY2019-25 RESIDENTIAL AND COMMERCIAL SOLID WASTE COLLECTION AND RECYCLING SERVICES BETWEEN KODIAK ISLAND BOROUGH AND WASTE CONNECTIONS OF ALASKA, INC. dba ALASKA WASTE MAY 2019 [NIIG IT R] Amended March 2021 Second Amendment August 2024 Residential and Commercial Solid Waste Collection Contract FY2019-25 Page 1 of 99 Page 5 of 329 Discussion Of Contract No. FY2019-25B, Amendment #2, Residential And Com... AGENDA ITEM #2.a. 8/30/2024 Version DRAFT This Second Amendment to Contract No. FY2019-25 ("Amendment') is made and entered into effective as of the day of , 2024 ("Amendment Effective Date"), by and between WASTE CONNECTIONS OF ALASKA, INC. ("Contractor"), and KODIAK ISLAND BOROUGH (the `Borough"). Contractor and the Borough are each individually referred to herein as a "Party" and collectively as the "Parties". Capitalized terms not otherwise defined herein shall have the respective meanings ascribed to them in the Agreement (as defined below). BACKGROUND A. WHEREAS, Contractor and the Borough entered into Contract No. FY2019- 25 (the "Agreement') dated July 19, 2019; and B. WHEREAS, the Parties previously agreed to certain amendments by an Amendment effective March 18, 2021; and C. WHEREAS, the Parties desire to further amend the contract to clarify definitions of terms and the responsibilities of the owner or account holder of each unit on a premises served, both for ease of understanding and consistency with changes to the Kodiak Island Borough Code; and D. WHEREAS, for ease of integration of the amendment the Parties agree to reflect the changes made by Amendment Number Two by reproducing the text of the Agreement as amended, incorporating changes adopted by Amendment Number One and those approved in this Amendment Number Two. AGREEMENT NOW, THEREFORE, in consideration of the premises and obligations as set forth in this Amendment, the receipt and adequacy of which is hereby agreed to and acknowledged, the Parties agree as follows: 1. Amendment. Contract No. FY2019-25 by and between WASTE CONNECTIONS OF ALASKA, INC. ("Contractor"), and KODIAK ISLAND BOROUGH (the "Borough") is hereby amended by substitution with the Second Amended Contract as set forth on Appendix 1 to this agreement replacing the May 2019 Contract as Amended by Amendment number one on March 18, 2021, with the terms set forth in Appendix 1. 2. Counterparts. This Amendment may be executed in one or more facsimile or original counterparts, each of which shall be deemed an original and both of which together shall constitute one and the same instrument. 3. Ratification. All terms and provisions of the Agreement not amended hereby, either expressly or by necessary implication, shall remain in full force and effect. 4. Conflicting Provisions. In the event of any conflict between the terms of the Agreement and this Amendment, the terms of this Amendment shall prevail. 5. Authorization. Each Party executing this Amendment represents and warrants that it is duly authorized to cause this Amendment to be executed and delivered. [Signature Page Followsl Residential and Commercial Solid Waste Collection Contract FY2019-25 Page 2 of 99 Page 6 of 329 Discussion Of Contract No. FY2019-25B, Amendment #2, Residential And Com... AGENDA ITEM #2.a. 8/30/2024 Version DRAFT IN WITNESS WHEREOF, the Parties execute this Amendment as of the date first written above. Contractor: WASTE CONNECTIONS OF ALASKA, INC. By: Name: Title: Date: ATTEST: By: Name: Title: The Borough: KODIAK ISLAND BOROUGH By: Name: Title: Date: ATTEST By: Name: Title: Date: APPROVED AS TO FORM: By: Title: Residential and Commercial Solid Waste Collection Contract FY2019-25 Pane 3 of 99 Page 7 of 329 Discussion Of Contract No. FY2019-2513, Amendment #2, Residential And Com... AGENDA ITEM #2.a. 8/30/2024 Version DRAFT APPENDIX 1 TABLE OF CONTENTS RECITALS........................................................................................................................... 7 SECTION 1: EXCLUSIVE CONTRACT...............................................................................7 SECTION 2: REPRESENTATIONS AND WARRANTIES....................................................7 2.01 Gmntrgntm, -;epFese...� .S2f -Warranties f3 SECTION 3: TERM OF CONTRACT...................................................................................9 3.01 Initial Tern 7 3.02 Speel'o o"^ovS'Ang tG SUP-90VATerm li '] rontrnntorsQt.�tiGRG Up9R Evniratien or Terminetinn 9 SECTION 4: TRANSITION PLANNING.............................................................................11 SECTION 5: GENERAL SCOPE OF CONTRACTOR DUTIES ......................................... 5.01 ronnntion n.d Trnn.,;fpr of Refuse 12 1-0 5.02Qa-;tmrnar cervine 19 5.03 Cee Qellentinn and Cinannial o Rg r`olleotio n.d TranSf8r of Reo..nl..LJe r..r.dho..r.d M.+ierial SECTION 6: SPECIFIC COLLECTION DUTIES............................................................... 6.01 "", Servise 6 02 SeAeetiea�frem Refdse Earls 1-A 40 13 'I1 41 z CmIk-n jnn from Du mpsterTRell na rentainws, eF GerApaeteFs 6.04 Bulky items 6.05 €reeFgeRGY SPP:;seS 12 14 14 6.06 OR Call Tem n, D mpster and Roll Off rounntion Spp.dnp SECTION 7: DISPOSAL OF COLLECTED REFUSE........................................................ 7.01 TFaRspertatie of Gelleoted Refused to KIR 1-ardfll 15 22 1-6 SECTION 8: FUTURE RECYCLING SERVICES PROGRAM...........................................23 8.01 GeReFal 16 8o:9n2 P��r�e�s�p�edG�:e�� 16 :sec 8.04 EquippAeRt and Pwsnnnol 8.05. Final rli�.l Dicno?itiGR of o�r.l.�.h�� le Materiahs; 9.06 Da ...e"nYtafiG 17 17 17 8.07 Records Reperling FA O and 9.09 DeGyo SPr�oeo rl MaFkot'n SECTION 9: GENERAL OBLIGATIONS AND PERFORMANCE STANDARDS................24 1-� Residential and Commercial Solid Waste Collection Contract FY2019-25 Page 4 of 99 Page 8 of 329 Discussion Of Contract No. FY2019-25B, Amendment #2, Residential And Com... AGENDA ITEM #2.a. 8/30/2024 Version DRAFT C Qther Ceeviel r-�� . CPn.iGeS 21 ,. 9.06 Cnntrgrt ce 7ie Assets 24 9.07 spwo .eerg-�,..a...as 2� 9_08BilliRg and n� GGGLIRt,r Rg PFaGt•,.eS Zan SECTION 10: RECORDKEEPING AND REPORTING......................................................34 10.01 ALe e...ledge„ent 26 10.04 Cir..;nnF;;l Re,.Grdsind Repeats SECTION 11: CONTRACTOR SERVICE FEE AND SPECIAL SURCHARGES................36 11.01 r`endreeder Cer.; ve Cee Cehed le 27 228 Gentranter'sGosts erect h.. Cer.; ve Cee 1 I .W- Ge. 11.03 A4ustrnent eF !vr-vvr4rmu••..G4E)r Ser„iee Fee SECTION 12: MISCELLANEOUS PERFORMANCE OBLIGATIONS................................46 T2.01 GempliaRGe,. With Applinhle Laws 12.02 Cnntr�rterers 3i 30 65 Pprrovnrnpl Q.03 r`err.m��vivelive \A/i1h KIR 67 7 SECTION 13: INDEMNIFICATION, INSURANCE, LETTER OF CREDIT ..........................48 13.02 Required IRS r e 68- 13.03 13.03 Payment Security 5- 133.04 Guara^ty-Agreement 443- 13.06 4313.06 Assurance of Perfermanee 45 SECTION 14: CHANGES IN SCOPE OF CONTRACT OBLIGATIONS .............................54 14.01 Gh ..gestg oerr,.r,,,aRGe Obligations 464 14.02 P epesal RequireMeRtS 46 SECTION 15: BREACH OF AGREEMENT, DAMAGES, AND DEFAULT .........................56 15.01 Liquidated Damages 47- 16.02 GompeRsat y Damages 48 15.09 KI6 Right to Perform 54 SECTION 16: SUSPENSION OR TERMINATION OF CONTRACT..................................65 16.01lQ'S Right W SUSpeRd OF TWFRiRate 57 SECTION 17: TRANSFER OF CONTRACT......................................................................67 17.01 Tmr,sfer h.7 GeRtrwter 59 Residential and Commercial Solid Waste Collection Contract FY2019-25 Page 5 of 99 Page 9 of 329 Discussion Of Contract No. FY2019-25B, Amendment #2, Residential And Com... AGENDA ITEM #2.a. 8/30/2024 Version DRAFT SECTION 18: THE PARTIES............................................................................................68 18.01 Independent Contractor 64 IR.W Parties in interest All 18.03 Biding on Successors 18.04 Further Assurances c64 188.06 r^etiens of Illi: its GevemmeRtal Capaoity tl1 48 07 Raab s' Rep -went Lives 64 I Rx^9 No'seof Ine nl.,me 90 SECTION 19: AMENDMENTS..........................................................................................70 SECTION 20: NOTICES, CONSENTS, AND APPROVALS..............................................71 20 01 Nott .^S 64 20-.-- . n^9 pe ns 64 20.03 €moose^P�aRs 64 SECTION 21: INTEGRATIONS. GOVERNING LAW, AND VENUE..................................72 211 06 Casts SECTION 22: ADDITIONAL TERMS AND CONDITIONS.................................................74 67 SECTJON 23: DEFINITIONS............................................................................................75 SECTION 24: EXECUTION...............................................................................................96 EXHIBIT A: Request for Proposal......................................................................................97 EXHIBIT B: Liquidated Damages......................................................................................98 EXHIBIT C: Contractors Proposal Documents..................................................................99 ONTO AGTOR'S PROPOSAL DOG�IMEENTC Residential and Commercial Solid Waste Collection Contract FY2019-25 Page 6 of 99 Page 10 of 329 Discussion Of Contract No. FY2019-25B, Amendment #2, Residential And Com... AGENDA ITEM #2.a. 8/30/2024 Version DRAFT CONTRACT FOR RESIDENTIAL AND COMMERCIAL SOLID WASTE COLLECTION AND RECYCLING SERVICES This Contract for Solid Waste Collection and Recycling Services ("Agreement") is made and entered into this Nineteenth (19°i) day of July, 2019 ("Effective Date") by and between the Kodiak Island Borough ("Borough" or "KIB"), a second class borough organized under and laws of the State of Alaska, and Waste Connections of Alaska, Inc. dba Alaska Waste ("Contractor"), an Alaska corporation authorized to do business in the State of Alaska, collectively referred to as the Parties. RECITALS WHEREAS, the Borough, pursuant to AS. 29.35.210(a)(4), is authorized to provide for garbage, solid waste, and septic collection and disposal on a non-areawide basis; and, WHEREAS, the Borough, pursuant to Chapter 8.25 of the Kodiak Island Borough Code, regulates the management of municipal solid waste, including its storage, collection, processing, recovery, and disposal; and, WHEREAS, the Borough does so to protect the public safety, health, and welfare of the people of the Borough, to protect, preserve, and enhance the environment within the Borough, and to provide for fiscally responsible solid waste management; and, WHEREAS, the Contractor submitted a proposal to the Borough in response to an RFP that was issued to identify parties qualified to administer the solid waste services and recycling program; and, WHEREAS, based upon the information and representations set forth in the Contractor's proposal, the Borough has determined that the Contractor is the lowest responsible bidder; and, WHEREAS, the Parties wish for Contractor to administer the Borough's solid waste and recycling program, subject to the terms and conditions set forth in this Agreement; and, NOW, THEREFORE, in consideration of the mutual promises, covenants, and agreements contained herein, and the mutual benefits conferred hereunder, the receipt and sufficiency of which are hereby acknowledged, the Borough and the Contractor agree as follows: SECTION 1: EXCLUSIVE CONTRACT 1.01 Exclusive Right and Privilege to Provide Contract Services. The KIB grants Contractor the exclusive right and privilege, together with the obligation to provide, Contract Service in the Contract Service Area conditioned on Contractor, being at all times, ready, willing, and able to meet each and every Performance Obligation. SECTION 2: REPRESENTATIONS AND WARRANTIES 2.01 Contractor's Representations and Warranties. a. Status. Contractor is a corporation duly organized, validly existing and in Residential and Commercial Solid Waste Collection Contract FY2019-25 Page 7 of 99 Page 11 of 329 Discussion Of Contract No. FY2019-25B, Amendment #2, Residential And Com... AGENDA ITEM #2.a. 8/30/2024 Version DRAFT good standing under the laws of the State of Alaska and is in all respects qualified to do business and perform the Contract Services within the State. b. Authority and Authorization. Contractor has full legal right, power, and authority to execute and deliver this Contract and satisfy its Performance Obligations. This Contract has been duly signed and delivered by Contractor and constitutes a legal, valid, and binding obligation of Contractor enforceable against Contractor in accordance with its terms. c. No Conflicts. Neither the execution nor delivery by Contractor of this Contract, the performance by Contractor of its Performance Obligations, nor the fulfillment by Contractor ofthe terms and conditions ofthis Contract: (1) Conflicts with, violates or results in breach ofany Applicable Law; (2) Conflicts with, violates or results in a breach of any term or conditions of any judgment, order or decree of any Regulatory Authority or any agreement or instrument to which Contractor or any of its Affiliates is a party or by which Contractor or any of its Affiliates' properties or assets are bound, or constitutes a default thereunder; or (3) Will result in the creation or imposition of any lien, charge, or encumbrance of any nature whatsoever upon any of the properties or assets of Contractor. d. No Approvals Required. No approval, authorization, license, permit, order, consent, declaration, registration or filing with any governmental or administrative authority, commission, Governing Body, agency, or instrumentality is required for the valid execution and delivery of this Contract by Contractor, except those that have been duly obtained from its Board of Directors or other governing body. e. No Litigation. Contractor warrants that there is no current, pending, or, to the best of Contractor's knowledge, threatened action, suit, proceeding or investigation, either at law or in equity, before or by any court, governmental authority, commission, governing body, agency or instrumentality, by or against Contractor wherein an unfavorable decision, ruling or finding, in any single case or in the aggregate, would adversely affect the performance by Contractor of its obligations under this Contract or in connection with the transactions contemplated by this Contract, or which in any way would adversely affect the validity or enforceability of this Contract or any other agreement or instrument entered into by Contractor in connection with the transactions contemplated by this Contract. Contractor further warrants that there is no action, suit, proceeding or investigation, either at law or in equity, before or by any court, governmental authority, commission, board, agency or 'instrumentality pending or threatened, by or against KIB by Contractor. f. Due Diligence. Contractor warrants that it has conducted such independent investigation, examination and research of the conditions and circumstances surrounding this Contract, including the best and proper methods of providing Residential and Commercial Solid Waste Collection Contract FY2019-25 Page 8 of 99 Page 12 of 329 Discussion Of Contract No. FY2019-25B, Amendment #2, Residential And Com... AGENDA ITEM #2.a. 8/30/2024 Version DRAFT the Contract Services (including the types of Contract Services), labor, equipment, and materials to ensure its ability to provide the Contract Services according to the terms and conditions set forth herein. Contractor agrees that it will make no claim against KIB based on any good faith estimates, statements or interpretations made by any officer, employee, or agent of KIB that proves to be in any respect erroneous. g. Compliance with Applicable Laws. Contractor further represents and warrants that it has fully complied with all Applicable Laws, including without limitation any and all laws relating to conflicts of interest, in the course of procuring this Contract. h. Truth and Accuracy of Application. Contractor warrants that the information provided in the proposal it submitted in response to KIB' s Request for Proposals for this Contract, together with any addenda thereto, including all amendments, clarifications, and other communications furnished to KIB as part of that proposal, is true, accurate and complete. L Updates to Contractor Documentation. Contractor agrees to promptly notify KIB of any change in circumstance that renders untrue any information represented to KIB as part of the competitive procurement process giving rise to the award of this Contract and shall also do so in the event that it discovers that any representation to KIB was otherwise erroneous. 2.02 Integration. This instrument, as well as all appendices and amendments, set forth the entire agreement of the parties. There exist no other promises, terms, conditions, or obligations other than those contained herein, and this Contract shall supersede all previous communications, representations, or agreements, either oral or written, between the parties hereto. SECTION 3: TERM OF CONTRACT 3.01 Initial Term. a. Contract Commencement Date and expiration of Term. The Contract Term shall commence on July 1, 2020 ("Commencement Date") and, unless extended, shall expire in seven 71 years on June 30, 2027 ("Termination Date"). b. Collection Commencement Date. The Collection Commencement Date is July 1, 2020. c. Short-term extension. On or before thirty 301 days prior to the expiration of the Term whether original under subsection (a) or extended under subsection (d), KIB, in its sole discretion, may extend the Term for up to six (6) months. d. Mutual Option to Extend Term. On or before sixty 601 days prior to the following dates: Residential and Commercial Solid Waste Collection Contract FY2019-25 Page 9 of 99 Page 13 of 329 Discussion Of Contract No. FY2019-25B, Amendment #2, Residential And Com... AGENDA ITEM #2.a. 8/30/2024 Version DRAFT (1) expiration of the Initial Term under subsection (a), (2) the extended Term under subsection (b), or (3) a portion of the maximum allowable extended Term under this subsection, with KIB and Contractor's mutual agreement, may incrementally extend the Term for up to three (3) years in any combination of the following number of years (such as 1 +2, 1+1+1; 2+1). 3.02 Specific Provisions to Survive Term - The following provisions of this Contract will survive the Term: a. All acknowledgements, representations and warranties of the Parties in this Contract; b. All indemnities; c. Contractor Payment Obligations or claims therefore; d. All Contractor's Performance Obligations and KIB's rights with respect to Records, including giving KIB a copy of Records, or allowing KIB to copy, inspect and audit Records, including: Certificates of Insurance or other evidence of Insurance coverage (such as endorsements extending coverage of claims made insurance policies), and Contract Service Asset Inventory and Contract Service Asset Documentation (for example, with respect to Refuse Carts that KIB has the right to acquire). e. All Contractor's Performance Obligations and KIB's rights with respect to Reports; including submitting final Reports; f. Providing endorsements extending coverage of claims made insurance policies, if KIB waives the claims made requirement and allows claims made insurance policies; g. Any other provision that expressly states that it survives the Termination Date (such transfer of Cart ownership to KIB); and h. Any right of either Party vested, and any obligation of either Parties accrued before the Termination Date. 3.03 Obligations Upon Termination or Expiration. a. Sale or Lease of Contract Service Assets. Upon termination or expiration of this Agreement, Contractor may within ten 10Zdays enter into good faith negotiations to permit KIB or its newly selected contract hauler to purchase or lease those Contract Service Assets, including Refuse Containers, used and owned by Contractor within the Service Area. As part of any such Residential and Commercial Solid Waste Collection Contract FY2019-25 Pane 10 of 99 Page 14 of 329 Discussion Of Contract No. FY2019-25B, Amendment #2, Residential And Com... AGENDA ITEM #2.a. 8/30/2024 Version DRAFT purchase or lease agreement, Contractor shall deliver any and all Contract Service Asset Documents, including, but not limited to manufacturers warranties, maintenance agreements, financing documents, and recorded financing statements, ifany. b. Contractor Removal of Refuse Containers. If the Contract Service Assets are not sold or leased to KIB upon termination of this Agreement, Contractor shall remove all its Refuse Containers from the Service Area within ninety (90) days. c. Survival of Obligations. Contractor's obligations under this Section shall survive the termination or expiration ofthis Agreement, or any extension thereto. SECTION 4: TRANSITION PLANNING No longer applicable. G. f`empl:aRGe with Tra Rsifir... ol..r. GentFantoF ill fully nlnmnnt its nleyees te . Ark a nrtimn and.lor add eXtra shifts. .without aRY o tr. it; r-OntvantOF R1-R.dno Coo to o nlianno ..with the Plan. Contractor agrees that it will, on a weekly basis. submit to KIB written KIR ..hmnh shall n o Iatn. than the Friday of thr.. nL folln%ying the Residential and Commercial Solid Waste Collection Contract FY2019-25 Page 11 of 99 Page 15 of 329 Discussion Of Contract No. FY2019-25B, Amendment #2, Residential And Com... AGENDA ITEM #2.a. 8/30/2024 Version DRAFT C,..,tr,,,.t r,...,.,.................f n.,F,. On th,. first KIR Q��:....ss n,,., .. nh week. eFeafteF (`GR#actor ..oil MRAt .. 4th KIR by ., the sigtu w.- OR of the T-FaRSitiGR OI.... SECTION 5: GENERAL SCOPE OF CONTRACTOR DUTIES 5.01 Collection and Transfer of Refuse. Subject to the conditions contained herein, Contractor shall, among other things: a. Provide Refuse Containers to Customers; b. Provide Residential and Commercial Collection service; c. Collect Municipal Solid Waste generated in the Service Area; d. Deliver Municipal Solid Waste to the KIB Landfill. 5.02 Customer Service. Subject to the conditions contained herein, Contractor shall, among other things: a. Serve as the primary point of contact for Customers; b. Resolve Customer complaints in a timely manner; c. Report Customer complaints to KIB in writing within five (5) business days; and, d. Perform its Collection and Transfer duties in a professional and courteous manner. 5.03 Fee Collection and Financial Reporting. Subject to the conditions contained herein, Contractor shall, among other things: a. On behalf of KIB, charge Customers a fee or fees in the amounts directed by KIB; b. Remit to KIB such portions ofthose fees as directed herein; c. Maintain detailed financial records regarding the billing and collection of fees; and, d. Issue Reports to KIB in the manner and at the times directed herein. 5.04 Collection and Transfer of Recyclable Cardboard Material. Subject to the conditions contained herein, Contractor shall, among other things: a. Provide Cardboard Recycling Containers to Customers; and b. Deliver Cardboard Recycling Containers to the KIB designated recycling facility for processing. Residential and Commercial Solid Waste Collection Contract FY2019-25 Page 12 of 99 Page 16 of 329 Discussion Of Contract No. FY2019-25B, Amendment #2, Residential And Com... AGENDA ITEM #2.a. 8/30/2024 Version DRAFT SECTION 6: SPECIFIC COLLECTION DUTIES 6.01 Mandatory Service. a. Contractor acknowledges that Contractor is required to charge the owner or Account Holder E)Geupant of a Premises or Unit a Service Fee, regardless of whether that customer F GGG61paRt self -hauls Solid Waste and discards it in the residential roll -off containers provided at set -out sites, discards at the KIB landfill, or utilizes pick-up services at a Customer's Premises or Unit. [Ximpster Rd Re!' na Cnntn ^. KIR landfill ^ „«, ,911 Services at Gust (1)Although services are mandatory per Kodiak Island Borough Code (KIBC) 8.25.060 this does not allow the services to violate any other KIB or City Codes. (i) The Contractor will be required to communicate with KIB in the event that mandatory services for a customer will violate additional KIB or City Codes as a result of placement of a roll -cart or dumpster. (2) If disputes arise, from any portion of this section (section 6), the Borough Manager or designee will review the circumstances and make a final administrative determination. Mandatory Service Notice. Within seven (7) Service Days after receiving notice (based on Contractor's drivers' observations, information and belief, or otherwise) that a formerly unoccupied Premises or Unit becomes occupied, or that the individuals occupying the Unit Premises have changed, Contractor will give Written notice and explanation of Mandatory Service in written form to the owner or occupant of that Unit P�is^s that Service is required unless Contractor has already received—a request for Service at that Unit Premise, or KIB revokes such provisions of the KIB Code that require mandatory Service. d. Increase to Service Process. If the Contractor observes and documents with photos three (3) occurrences of a Customer over -filling their solid waste container in a sixty (60) day period, the Contractor will reach out to request the Customer increase the size of their solid waste container. (1) The Contractor will provide a written notice and explanation with documented evidence to the Customer seven (7) days prior to exchanging the container for a larger size. Residential and Commercial Solid Waste Collection Contract FY2019-25 Page 13 of 99 Page 17 of 329 Discussion Of Contract No. FY2019-25B, Amendment #2, Residential And Com... AGENDA ITEM #2.a. 8/30/2024 Version DRAFT (2) The Customer will be responsible for the increase in cost for the larger size of container, set out in the service fee schedule in section 11.01. (3) If the increase in use is due to a short time -frame season of increased business (ex. Summertime), the Contractor will agree to reduce the size back to the original container size by a date mutually agreed to in writing by both the Contractor and the Customer. (4) Services for every unit in a premises is required by the KIBC 8.25.060, a Customer will not be allowed to decrease service for any Unit or Premises to zero. 6.02 Collection From Roll -Carts. Rpf--qp Carts a. Automated or Semi -Automated Collection. Contractor will Collect all Roll -carts Ref- ,-4^ *; using an Automated or Semi -Automated manner. "Automated" means that Roll -carts Refuse C^^ts are lifted from their Set - Out Site, emptied and set back down at their Set -Out Site by mechanical means. "Semi -Automated" means that Roll -carts Refuse Carts are rolled by Contractor's employees from their Set -Out Sites into position near the Collection Vehicle; lifted, emptied, and set back down by mechanical means; and returned by such employees to their Set -Out Sites. b. Mandatory Collection from Roll -Carts. Refuse GaFts. Beginning on the Collection Commencement Date, and on a weekly basis thereafter, Contractor shall collect all solid waste RPfase placed in roll -carts located at Residential or, Multi family and Commercial Premises within the City of Kodiak, or such other areas as may be designated by KIB in a Notice to Contractor, on the Regularly Scheduled Collection Day. c. Roll -Cart Refuse Cart Options. (1) Standard Option. Unless Contractor must provide Roll Off Containers pursuant to Section 6.02, it shall provide each unit Premises with one 963- gallon capacity Bear -Resistant roll -cart Refuse GaFt for the charge listed on the Service Fee Schedule in Section 11.01. Contractor is required to collect and dispose of the solid waste deposited in roll -carts once per week. ^ ^^^f if f n ^, ^ nnf of that Rrt-mist-s dimnfn Gantr^ntor to n vide a different number of Carts under following Subsection G.(2)-. If a Premise falls within a Borough -designated 'Bear Aware" area, it shall without exception be excluded from receiving a roll cart. (2) Customer Requests for Additional Refuse Carts. C stomnro...Hh ReaF RnoioMnf Ref- ,;^GaAs Additional roll -carts shall be provided upon Customer request, with each additional roll -cart priced at the corresponding Service Fee. Residential and Commercial Solid Waste Collection Contract FY2019-25 Page 14 of 99 Page 18 of 329 Discussion Of Contract No. FY2019-25B, Amendment #2, Residential And Com... AGENDA ITEM #2.a. 8/30/2024 Version DRAFT (3) Reduction of Service. Customers eligible for roll cart services cannot reduce their service level below the rate for one roll -cart. (4) Re -Delivery Fee: If a Customer's roll -cart service account becomes ninety (90) days more delinquent, the roll -cart will be removed and the Customer, or the Account Holder at the time of re -delivery, will be subject to a re -delivery fee of the roll -cart as outlined in the service fee schedule in section 11.01. d. Cart Rollout Service. (1) Scope of Service. Upon request, Contractor will provide Rollout Service to Customers, as follows: (i) Without Surcharge. Rollout service shall be provided to Senior Citizens and Disabled Customers without surcharge, if the Customer certifies that no able-bodied person resides at Customer's premise. (ii) With Surcharge. If requested, rollout service shall be provided to all other Customers, who shall be charged the surcharge set forth on the Contractor Service Fee Schedule. 6.03 Collection From Dumpsters, Roll -Off Containers, or Compactors. a. General Residential Commnr^ia' r Multi Family Collection. Generally beginning on the Collection Commencement Date, Contractor will provide all Multi Gamily and Co,.....or6al Customers requiring a dumpster, roll -off container, or compactor, for the correspondina size needed to accommodate the solid waste stream historically produced at that premises or unit, with a container for services, within the cor„ ee Area with either Res deet al Roll Off Containers or n pster for which Customers shall be charged in accordance with the Contractor Service Fee Schedule in Section 11.01. Residential Customers whose Premises are loea4n.i %y4h�n the nertien of the Sen,len Aran n„4sirle the f ity of Kediak shall else be preyided .,ith a Rosirlontial Doll Off r`ontainor GF ni,rv.nstor C E)RtFa..ter .,ill nllee4 Refuse dos..a Fded therein a4 least ekly, the agFend to between Gnntraetnr and the (`� rete mnr b. Residential Roll -Offs. Residential roll -off containers will be provided at designated set out sites for residential Self -haul customers to deposit their waste. Contractor will collect solid waste discarded therein once per week, or at a frequency that equals once per week for every self -haul customer to receive the same rate and standard of service provided to a roll -cart Customer 1. The number of roll -off containers hauled per week will be equal to the capacity and frequency needed to service all Self -haul customers once per week. Contractor will only haul roll -off containers that are 80% full. Residential and Commercial Solid Waste Collection Contract FY2019-25 Pane 15 of 99 Page 19 of 329 Discussion Of Contract No. FY2019-25B, Amendment #2, Residential And Com... AGENDA ITEM #2.a. 8/30/2024 Version DRAFT 2. Contractor will provide a report to the KIB on each of the following days of the week to provide total roll -off containers hauled: a. Fridays, before the end of the of the business day, the number of residential roll -off containers hauled so far during the week. b. Mondays, before the end of the business day, the total number of residential roll -off containers hauled for the week. 3. Contractor will create additional location numbers under KIB's existing account to track the residential roll -off container hauls for billing and reporting purposes. 4. KIB will pay for the standard roll -off haul fee as outlined in the Service Fee Schedule in Section 11.01 for any additional hauls made above the standard service haul number for all self -haul customers based on excess hauls in a month. 5. To calculate the number of hauls needed the Contractor will follow the equation below: a. Roll -cart containers equal 96 gallons capacity. b. One 20 -yard roll -off container is equal to the capacity of 4032 gallons, or 42 roll -cart containers. c. Multiply the number of Self -Haul customers by 96 gallons, to get the capacity needed to service all self - haul customers once per week. d. Divide the capacity of the available roll -off containers by the total capacity to service all self -haul customers once per week to obtain the number of containers needed to be hauled to service all self -haul customers once per week. e. EXAMPLE: 1. Contractor has 24, 20 -yard roll -off containers available at set out sites. 2. Contractor has 1723 self -haul customers. a. 1723 self -haul customers x 96 gallons = 165,408 gallons total capacity needed to service all self -haul customers once per week. b. 24 roll -off containers x 4032 gallons (capacity of one roll -off container) = 96768 gallons capacity if all roll -off containers were hauled once per week. c. 165,408 gallons — 96768 gallons = 68640 gallons remaining to be hauled to equal once per week service for all self -haul customers. Residential and Commercial Solid Waste Collection Contract FY2019-25 Pane 16 of 99 Page 20 of 329 Discussion Of Contract No. FY2019-25B, Amendment #2, Residential And Com... 8/30/2024 Version DRAFT d. 68640 gallons divided by 4032 gallons (capacity of 20 -yard container) = 17.02 or rounded down to 17. 24 + 17 = 41, 20 -yard roll- off containers to be hauled per week (average 177 per month) to reach full service all of the 1723 self -haul customers. c. Dumpster Options. (1) (Standard Option. Contractor will provide each Commercial customer RreFnmse an,d Multi Family Rize....;-,. with one 2.0 cubic yard capacity dumpster, or container size to accommodate the solid waste stream generated, to be Collected once weekly for the charge listed on the Service Fee Schedule in Section 11.01, subject to the following exceptions: (i) Bear Aware Area. If a Customer's Unit -re falls within a Borough -designated "Bear Aware" area, it shall without exception receive a bear -resistant Dumpster. (ii) Alternate Size Container at Customer's Request. A Customer may direct Contractor to provide a Dumpster of alternate capacity -,4r— FnQFP Rof„oo r`ahs OF Rall_llff r`antainors „hiont to the oharaos r.. .(`entre-tar Ce r. jinn Cee Cnh,- di dt, A Q--;tnrr,er rr. alsn .dlrent 6pntrantar to h etwitstan.dlna Rna . a„lrl„ Cnha.di,le.d Gellentien Day(s), olleet refsane Fro the G Sten.or'n Rreminan OR alternate a a.d.dltlenal .days a e d to between the Gontrantor and Sustemer—and subject to the charges prescribed by the Contractor Service Fee Schedule in section 11.01. AGENDA ITEM #2.a. Commented [PV1]: From Amendment #1 with edits in Amendment #2 (iii) Alternate or Additional Collection Days. A Customer may also direct Contractor to, notwithstanding any Regularly Scheduled Collection Day(s), collect solid waste from the Customer's Premises on alternate or additional days as agreed to between the Contractor and Customer, and sub'ect to the Contractor Service Fee Schedule in section 11.01.1 Commented [PV2]: From Amendment #1 with edits in Amendment #2 (iv) Insufficient Room. Should the Contractor, in its sole discretion, determine that there is insufficient room at a unit pFeFROSe to place or safely collect one or more dumpsters or the placement of the dumpster would violate KIB Parking Code 17.175.040 or the Citv Code 10.16, for each customer using the corresponding set -out site, the Contractor will either: Provide four (4) roll -carts, which is the equivalent to a 2 -yard front load dumpster, at the cost of a 2 - yard dumpster service, or a lesser number of roll - carts as may be required to safely and adequately store the customer's waste pending collection; E)Re OF FROM nrtn of the o eity anal mher that nh Quic4nmeicreq64es to safely. n.d adequately stare its .dinnnrrleid Refuse pending GellnntOGR; or Allow one or more Customers to share a Dumpster. Residential and Commercial Solid Waste Collection Contract FY2019-25 Pane 17 of 99 Page 21 of 329 Discussion Of Contract No. FY2019-25B, Amendment #2, Residential And Com... 8/30/2024 Version DRAFT (v) Increase in Size of Container Directed by Contractor. Should the Contractor determine that the routine waste volume of a commercial Unit requires a larger capacity container, the Contractor may provide container(s) of sufficient size and notify the Customer and the Borough of the change in container(s). a. Contractor must notify the Customer seven (7) days prior to making the change; and b. Contractor must provide in their notice to the Customer the documented evidence that supports increasing the size of the container. (vi) Disputes. if there is a dispute as to the size of container required or whether a customer's waste stream requires more than the Customer requested container(s) the Borough Manager or designee will review the circumstances and make a final administrated determination. (2) Delivery Fee. Contractor shall be allowed to charge a delivery fee for all roll -off containers and front load dumpsters. All items listed below exclude any deliveries to and from the KIB set -out sites or the KIB landfill. L Initial delivery during establishment of a new service shall be charged at a rate outlined in the service fee schedule in section 11.01. ii. Contractor will be allowed to charge for a re -delivery fee to the Customer, or the Account Holder at the time of re -delivery, if the dumpster is removed for Customer non-payment after sixty (60) days. Re -delivery fee is outlined in service fee schedule in section 11.01. (3) Commercial Overage Fee. Contractor shall be allowed to charge for any additional yardage of solid waste that is collected at a commercial set -out location at the rate outlined in the service fee schedule in section 11.01. (4) Dumpster Locks. Should a Customer so request, Contractor shall promptly provide dumpster locks, which shall be subject to anysurcharge set forth on the Contractor Service Fee Schedule. (5) Dumpster Damages and Repairs. L If a dumpster is damaged by the Contractor during pick-up, emptying, transport or other action, the costs to repair the dumpster will be the responsibility of the Contractor. ii. If a dumpster is damaged by an unknown third party, Customer may make every reasonable attempt to locate the third party responsible and require them to pay for the repairs needed. • If the third party is found, they may be required to pay for Contractor conducted repairs as outlined in this section (iii)(a). • If the third party is found but is unwilling to accept Residential and Commercial Solid Waste Collection Contract FY2019-25 Page 18 of 99 AGENDA ITEM #2.a. Commented [PV3]: From Amendment #1 with edits in Amendment #2 a Commented [PV4]: From Amendment #1 Page 22 of 329 Discussion Of Contract No. FY2019-25B, Amendment #2, Residential And Com... AGENDA ITEM #2.a. 8/30/2024 Version DRAFT responsibility, or if the third party is not found, the customer may be held responsible for paying for the repairs as outlined this section (iii). iii. If a dumpster is damaged at a Customer's Unit due to the actions of a Customer, its agents, employees, guests or invitees, the Customer will be responsible for the costs of the repairs as outlined below: a. Dumpster Repair and Shop Rate. If a dumpster is damaged at a Customer's unit, and the Customer chooses not to perform the repairs themselves as outlined in section 6.06.b, the customer will be responsible for all costs associated with the repairs performed by the Contractor. Costs of repairs to the dumpsters will include the hourly labor rate as set in the contract service fee schedule, section 11.01, and the cost of any parts or materials used. b. If a Customer would like to perform the repairs to the dumpster(s) they are currently being serviced with, the Customer and Contractor must have a written agreement granting the Customer permission to perform repairs on the dumpster(s). The Customer will provide the Contractor with a written detailed description of the repair work they intend to perform, and have it approved prior to any repairs being conducted. The repairs performed by the Customer will be at their own cost and will need to be inspected by the Contractor with written and photo documentation of acceptance. (6) Compactors. Contractor is not obligated to provide a Compactor to any Customer. However, on request of the owner or occupant of a Commercial or Multi -Family Premise, Contractor will collect all refuse placed inside each compactor at the frequency requested by that Customer and for the charge listed on the Service Fee Schedule in Section 11.01. (7) Roll Off Container of KI -R Landfill. BegiRRORg An thi. r`nmmannmmznf Hate G enfranfa,-.yill rinliytzr a fly mpster ar Rell Off Genfainer in any GapaGity n ,irlard an the Semina Cee Cshed ala in Castan d 1 01 ' as asfa.d by 14113 W the Iaaafiaa s .d a�fiaby KIB of the IIIA I aa.dfill GAnfrarfnr..,III r nlano that Dumnsfor Ar Roll Off Ganfainor .yifh a nfher D aster er Roll riff CORta'n ..f aRY afheF s s'fy n „'.do.d eR the Sew nn Cnn Schedule .within twe (2) SeFViGe flays of 14113's Fequest. QentFanfar w 11 n ,irlr. KIRvi th the Canine n ribed in Cas4ian C 03/a\ /r.alY dicta a afaiReF repaiF a.d m afa..a RGe) as if Illi] WeFe a Gustemef 68g1RniRg GR the Gollection f"nm FR8RGe of Date G QRtrasfr.r ,.,ill f Ol!,-_ .f all Cali.d Waste nlaso,d thoroin of the fr8a618RGy agreed fn by 14113 an,d fho 4 GRtFarfar nrd rdispese of if of the 14113 1 anrdfill .,ifhaY t charge to K113 (8) Cardboard Recycling Containers. Beginning on the Commencement Date, Contractor will deliver a specially fabricated Cardboard Recycling Container in any capacity provided on the Service Fee Schedule in Section 11.01, at the designated locations specified by the KIB. Contractor will collect cardboard recyclable material discarded therein at Residential and Commercial Solid Waste Collection Contract FY2019-25 Pane 19 of 99 Page 23 of 329 Discussion Of Contract No. FY2019-25B, Amendment #2, Residential And Com... 8/30/2024 Version DRAFT least weekly, on the Regularly Scheduled Collection Day(s) or on alternate or additional days as agreed to between Contractor and the KIB to ensure that each Cardboard Recycling Container is promptly emptied when container is at capacity. 6.04 Self -Haul Services. a. If a customer notifies the Contractor in writing that they wish to personally store, collect, transport, and dispose of Solid Waste generated at that Customer's Unit the Contractor may nevertheless charge that customer a Contractor Service Fee commensurate with the service level required to accommodate the solid waste stream generated at that Unit. (1) Standard Residential Option for self -haul is equal to 96 gallons and will be charged the amount listed on the Contractor Service Fee Schedule for Roll -Carts table in Section 11. (i) Residential self -haul customers haul their own solid waste to a residential roll -off container located at a set out site or to the KIB landfill. (ii) Residential customers who are located in a Bear Aware area will receive self -haul services in lieu of the roll -cart services. (2) Commercial customers who qualify for Self -haul services will be charged the cost of a standard self -haul fee outlined in the Contractor Service Fee Schedule for Roll -Carts table in Section 11. (i) Commercial Self -Haul customers are required to haul their solid waste to the KIB landfill and not to a residential roll -off container. (ii) Commercial Self -Haul customers will be considered residential accounts in association with the Customer Count for the annual fee adjustment calculation. (3) Reduction of Service. Customers eligible for self -haul services cannot reduce the service level below the rate for a 96 -gallon capacity container. 6.05 Bulky Items. a. Reporting Bulky Items. Contractor's employees must promptly notify Contractor of any Bulky Items that they observe discarded at a KIB designated Residential Roll-Off/Dumpster Set -Out Site. b. On -Call Collection Service and Fees. Contractor must, within three (3) days of a Customer's request, collect Bulky Items with maximum allowable dimensions of 4 x 5 x 6 cubic feet that are discarded at a Set -Out Site. Customers shall be entitled to one such pickup each month; however, Contractor shall charge Customers the surcharge listed on the Contractor Service Fee Schedule in Section 11.01 for each additional pickup of Bulky Items that occurs within the same calendar month. Residential and Commercial Solid Waste Collection Contract FY2019-25 Page 20 of 99 AGENDA ITEM #2.a. Commented [PVS]: From Amendment #1 with edits in Amendment #2 J Page 24 of 329 Discussion Of Contract No. FY2019-25B, Amendment #2, Residential And Com... AGENDA ITEM #2.a. 8/30/2024 Version DRAFT c. Diversion Program for Bulky Items. Contractor will use reasonable business efforts to divert all bulky Items that it collects. Contractor shall deliver all bulky Items that It does not divert to a facility approved by KIB. 6.06 Emergency Services. a. Nature of Emergency Services. Within 24 hours of notice by KIB, whether oral or written, Contractor will provide emergency services beyond the scope of the Contract Services at the times and to the extent directed by KIB, including providing vehicles, drivers and other equipment and personnel to cleanup Solid Waste and other debris consequent upon natural disasters such as earthquakes, storms, floods, riots and civil disturbances, for which Contractor will be compensated Contractor's reasonable Reimbursement Costs. To the fullest extent possible, Contractor shall seek KIB' s preapproval prior to incurring any expenses related to the provision of emergency services. b. Reporting. Contractor will cooperate with KIB, the State, and federal officials in filing information related to a regional, state, or federal declared state of emergency or disaster as to which Contractor has provided services under this Chapter. c. Emergency Backup Service Plan. Contractor will submit an emergency backup service plan to KIB sixty (60) days prior to the Contract Commencement Date, which shall be subject to KIB's approval. Contractor shall implement that plan if, due to Uncontrollable Circumstances or for any reason whatsoever, Contractor fails, refuses, or is unable for a period of 48 hours to collect and/or at any time transport Solid Waste or any portion thereof to the applicable Solid Waste Management Facility, and the KIB Manager determines such failure reasonably presents a danger to the public health, safety, or welfare. 6.07 On -Call Temporary Dumpster and Roll -Off Collection Service. a. Container Delivery. Upon request, Contractor will deliver a Dumpster or Roll -Off Container, in any number and size available pursuant to the Contractor Service Fee Schedule, at the following times: (1) On the same Service Day if Contractor receives a request before 10 a.m. on that Service Day; (2) On the next Service Day if Contractor receives a request after 10 a.m. but before 4:00 p.m. on a Service Day; and, (3) Within two (2) Service Days, if Contractor receives a request after 4:00 p.m. on a Service Day. b. Collection. Beginning on the Collection Commencement Date, Contractor will collect all solid waste Refuse and/or Construction and Demolition (C&D) Debris deposited in a Dumpster or Roll -Off Container at the frequency requested by the Customer for the corresponding charges listed on the Residential and Commercial Solid Waste Collection Contract FY2019-25 Page 21 of 99 Page 25 of 329 Discussion Of Contract No. FY2019-25B, Amendment #2, Residential And Com... AGENDA ITEM #2.a. 8/30/2024 Version DRAFT Contractor Service Fee Schedule in Section 11.01. (1) Dumpsters or Roll -Off Containers being rented through the Contractor on a temporary basis will be considered Sole Purpose Dumpsters. (2)Sole Purpose Dumpster customers will be required to sign an agreement with the contractor to notify them of the following: (3) If a sole purpose dumpster is delivered to the KIB landfill with a mixed load (containing more than one type or category of material) that dumpster will be treated as an attempt to discard material without first paving applicable fees and the waste will be subject to the fees listed on the KIB Fee schedule available on the Kodiak Island Borough Website (www.kodiakak.us). c. Diversion of Construction and Demolition Debris to KIB Landfill. The Contractor shall use Reasonable Business Efforts to Divert Construction and Demolition Debris from disposal. If Contractor cannot divert Construction and Demolition Debris from disposal using Reasonable Business Efforts, it will deliver it to KIB Landfill, subject to the same obligations that Contractor has with respect to solid waste Refuse under Section 7. d. Container Pickup. Contractor will pick up such Dumpster or Roll Off Container within two (2) Service Days of a Customer's request or other time agreed to between Contractor and Customer. SECTION 7: DISPOSAL OF COLLECTED SOLID WASTE REFUSE 7.01 Transportation of Collected Solid Waste Refuse to KIB Landfill. a. KIB Landfill. Contractor will transport and deliver all solid waste Refuse that it Collects to the KIB Landfill. Contractor will coordinate that delivery with Holiday Collection schedules and closures for repair and maintenance. Contractor will keep solid waste Refuse that it Collects at Residential Premises, whether in Roll -Carts, Dumpsters, or Roll -Offs, separate from solid waste Refuse that it Collects at Commercial eF M �'�. a.tF.,,' � mily Premises and will not commingle that Refuse in one Vehicle. b. Compliance and Cooperation. Contractor will ensure that its Vehicles are capable of passing in and out of the door of the baler building at the KIB Landfill. Contractor will cooperate with KIB Landfill operators, and shall comply with all rules in effect atthe KIB Landfill, including, but not limited to: (1) Delivering solid waste Refuse only at the times and on those days specified by KIB; (2) Following directions to unload Collection Vehicles in designated areas; (3) Accommodating KIB Landfill operations and maintenance activities; and, (4) Complying with KIB's Unpermitted Waste exclusion programs. Residential and Commercial Solid Waste Collection Contract FY2019-25 Page 22 of 99 Page 26 of 329 Discussion Of Contract No. FY2019-25B, Amendment #2, Residential And Com... AGENDA ITEM #2.a. 8/30/2024 Version DRAFT c. Disposal Fees. Contractor will pay all KIB Landfill Disposal fees, including the fees for Disposal of solid waste Refasn that Contractor Collects from Roll -Off Containers and Dumpsters located attheKIB landfill. SECTION 8: FUTURE RECYCLING SERVICES PROGRAM 8.01 General. Contractor acknowledges that, subject to the protocols set forth at Section 14 of this Agreement, KIB may also require Contractor to implement a Recycling collection program. In that event, KIB will request that Contractor submit a proposal to implement such Recycling collection program, which it shall review and consider prior to requesting proposals from, or negotiating with, any other Person or entity for the provision of these services. However, if KIB and Contractor do not reach agreement by the end of the period specified In Section 14, KIB shall be entitled to take any such other actions as may be permissible pursuant to the terms of this Agreement. 8.02 Prospective Services. If KIB selects Contractor to provide Recycling services, Contractor shall supply all labor, equipment, personnel, quarterly reports, and payment invoices in a timely manner as outlined in this Agreement. The Contractor shall agree to perform all services necessary for the processing and shipment of recyclable materials that it collects within the City of Kodiak and KIB. Contractor will collect and process cardboard, mixed paper/paperboard, newspaper, plastic, aluminum cans and office paper. Recyclable material does not include large metal items such as vehicles, parts of vehicles, appliances, or home construction type of siding. Contractor will implement the processing methods and Recyclables collection as described in its Proposal and the final addendum and cover all costs associated with Contractor's collection and handling ofRecyclables. 8.03 Methods. Contractor will adhere to the collection plan and processing methods based upon its Proposal and any addenda thereto. 8.04 Equipment and Personnel. The Contractor has identified, in its Proposal and any addenda thereto, the equipment to be used in the collection and processing ofRecyclables. This identification shall include the minimum following Information: a. Equipment type: b. Equipment quantities; and, c. Availability of backup equipment. The Contractor has also identified in Its Proposal the number of personnel necessary to meet the requirements of this Agreement. Personnel listed shall include management, supervisory, customer service, equipment operators, collection personnel, etc. Any changes to management personnel shall be promptly communicated to KIB. 8.05 Final Disposition of Recyclable Materials. It shall be the responsibility of the Contractor to ensure that collected material is processed and recycled. To this Residential and Commercial Solid Waste Collection Contract FY2019-25 Page 23 of 99 Page 27 of 329 Discussion Of Contract No. FY2019-25B, Amendment #2, Residential And Com... AGENDA ITEM #2.a. 8/30/2024 Version DRAFT end the Contractor shall document the final disposition of the collected material as part of its quarterly reporting requirement. 8.06 Documentation. Contractor shall maintain throughout the duration of the Agreement, and for two (2) additional years, documentation on all of the Contract Services provided. Contractor shall maintain records to substantiate all work performed and fees requested. Such records shall include, but not be limited to, daily records on the pounds of processed recyclables, shipment records, and recyclable pick up locations. KIB may request that copies or portions of this documentation be included with Contractor's monthly requests for payment. 8.07 Records and Reporting. a. Records. Contractor will collect and record, on a daily basis, tonnage information, including the gross, tare, and net weight of each load of Recyclables it collects, as well as the receipts from the Recyclables processing facilities, in such a manner that Contractor and KIB may review the amount of Recyclables collected and delivered by Contractor on any given day. b. Reports. Contractor will include a summary of the records for tonnage, and any additional information requested by KIB in its Quarterly Report, as described in the KIB Residential and Commercial Solid Waste Collection and Recycling Services RFP and Contractor's Proposal. c. Inventory. Contractor will submit an updated inventory of Service Assets to KIB on July 1 of each year during the Contract Term, which shall include the following: (1) A general description of its maintenance yards, operations facilities, drop off locations, Contractor Office, and any other administrative and customer service offices; and, (Zj A list of Vehicles described by type, including manufacture and model number for cab, chassis and body; descriptive notation (i.e. front-end loader, compactor, etc.); number; DMV license number; the age of the chassis and body; type of body (i.e., open -top, closed, etc.); type of fuel used; the date of acquisition: the maintenance and rebuild status; and, lease or installment purchase information. 8.08 Recyclables Processing and Marketing. Contractor may change its selection of Recyclables Processing Facility and notify KIB within thirty 301 days of doing so. If the Recyclables Processing Facility is wholly or partially inoperable for any reason, including uncontrollable circumstances, Contractor will make other arrangements to process Recyclables or to transport the Recyclables to the Recyclables Processing Facility without increase of the Contractor compensation despite any consequent additional costs to Contractor. SECTION 9: GENERAL OBLIGATIONS AND PERFORMANCE STANDARDS 9.01 Procedures for Missed Collections. Residential and Commercial Solid Waste Collection Contract FY2019-25 Page 24 of 99 Page 28 of 329 Discussion Of Contract No. FY2019-25B, Amendment #2, Residential And Com... AGENDA ITEM #2.a. 8/30/2024 Version DRAFT Corrective Action Required. Absent Contract Service Exceptions, on the next Contract Service Day following telephonic or other notice to Contractor, Contractor will Collect without charge any container that Contractor should have Collected, delivered, exchanged, or repaired but did not. If Contractor fails to do so, KIB may provide the Contract Service itself or through a third party and Contractor will reimburse KIB'sReimbursement Coststhereof. 9.02 Customer Complaints. a. Response. Contractor will respond to all Customer inquiries and complaints (including any inquiry or complaint left with the telephone answering service) within 24 hours following notice to Contractor and handle all complaints consistent with the requirements of the Customer Complaint Protocol set forth in this Section. b. Customer Complaint Protocol. Contractor will maintain, update as necessary, and follow the Customer Complaint Protocol. Upon commencement of this Agreement and in advance of all updates, Contractor will provide KIB with a copy of the Customer Complaint Protocol for its approval, which shall not be unreasonably withheld. c. Referral to KIB. Contractor will not refer or forward any Customer to KIB for resolution of complaints or answers to inquiries unless Contractor has made all reasonable efforts to resolve the matter, has failed to reach resolution, and the Customer insists. In such event, Contractor shall refer the Customer to the individual specified as the KIB Representative. d. Employee Training. Contractor will train each of its Customer service employees to follow the Customer Complaint Protocol upon starting employment, and periodically thereafter. e. Record keeping and KIB Access to Records. Contractor will maintain a written record of every inquiry and complaint that it receives related to its provision of the Contract Services, including information required by KIB, and provide KIB with a copy of any such inquiries and complaints that occurred in a month by the 15th day of the subsequent month. Contractor will allow KIB access to complaint records at Contractor's Office during Contractor Office Hours. Contractor will provide copies of any Customer complaints and the resolution of those complaints, and other related Records, to KIB within two hours of KIB's request. 9.03 Certain Customer Complaints Requiring KIB Response. When a Customer complaint is referred to KIB in section 9.02(c) and the Contractor has failed to follow the Customer complaint protocol or has failed to make reasonable efforts to resolve the matter, the KIB may refer the complaint to the Contractor for further resolution efforts and the Contractor shall report its efforts to resolve the complaint in writing within ten (10) business days of the referral. may be directly related to, or require direct input fFem the KIB, Rd CAntractAr Ahel-Il J RGt be p alit el A cic fer s eh �fir�CRtc-rT"r`- Residential and Commercial Solid Waste Collection Contract FY2019-25 Pane 25 of 99 Page 29 of 329 Discussion Of Contract No. FY2019-25B, Amendment #2, Residential And Com... AGENDA ITEM #2.a. 8/30/2024 Version DRAFT 9.04 Unpermitted Waste Screening (or Recyclables if Applicable). a. Protocol. Contractor will develop and implement an Unpermitted Waste (or recyclables if applicable) Screening Protocol in compliance with Applicable Law, which shall be submitted to KIB sixty (60) days prior to the Commencement Date. Any amendments to Contractor's Unpermitted Waste Screening Protocol shall be subject to approval by KIB prior to implementation. b. Inadvertent Delivery of Unpermitted Waste to KIB Landfill. If Contractor inadvertently delivers Unpermitted Waste (or recyclables if applicable) to a Solid Waste Management Facility, Contractor will use its best efforts to identify the Customer that discarded the Unpermitted Waste (or recyclables if applicable) and cooperate with the Solid Waste Management Facility in any related investigations. Contractor will contact any identified Customer and provide that Customer with information on safe disposal ofUnpermitted Waste (or recyclables if applicable). 9.05 Contract Service Exceptions. a. Collection Exception. Contractor shall not be obligated to Collect any Solid Waste in the event of any Contract Service Exception, as defined below: is cn t nn OQ nF thin AgFeemen! (1) Dumpster Contract Service Exceptions means: (i) Solid waste not properly placed in containers; discarded solid waste (other than bulky items) that is not placed inside a container. (ii) Dumpster is overflowing. All solid waste should fit inside the container with the lid closed. (iii) Unbagged or otherwise un -containerized solid waste is observed in or around the roll -cart. - (iv) Unpermitted waste or unsafe materials: contractor observes unpermitted waste in a container or at the set -out site. (v) Any receptacle that weighs more than the limits prescribed on Residential and Commercial Solid Waste Collection Contract FY2019-25 Page 26 of 99 Page 30 of 329 Discussion Of Contract No. FY2019-25B, Amendment #2, Residential And Com... AGENDA ITEM #2.a. 8/30/2024 Version DRAFT container's manufacturer warranty or other documentation acceptable to KIB and notice on the container. (vi) Container or bulky items not placed at a proper set -out site; a container is not placed at a set -out site, or a bulky item or excess solid waste is not discarded at the set -out site. (vii)Unsafe condition: the set -out site is not safely accessible to vehicles or contractor's employees. (viii) Dumpster customer with a past due balance of sixty (60) days or greater. (2) Roll -Cart Contract Service Exceptions means: (i) Roll -cart is overflowing. All solid waste should fit inside the container with the lid closed. Extra refuse should be bagged or otherwise containerized and placed along the side of the roll - cart. (ii) Unpermitted waste or unsafe materials are observed in or around the roll -cart for disposal. (iii) Unbagged or otherwise un -containerized solid waste is observed in or around the roll -cart. (iv) Roll -cart exceeds the weight limit prescribed on the container's manufacturer warranty. (v) Roll -cart is not placed in the correct set -out site as agreed upon by the authorized account holder and the contractor. (vi) Unsafe condition: the set -out site is not safely accessible to vehicles or contractor's employees. • Roll -cart is placed at the set -out site but does not have the five (5) foot clearance needed for the contractor or vehicles to access the roll -cart. • Roll -cart is placed at the set -out site but is too close to another cart or object. Minimum of five (5) feet of clearance between the roll -cart and other objects. (vii)Roll-cart customers with a past due balance of ninety (90) days or greater. b. Non -Collection Fee. (1) Dumpster Customers: If the Contractor does not collect any solid waste (or recyclables if applicable) due to a Contract Service Exception, and the Contractor must return for a separate pick-up, the authorized account holder may be charged the Extra Pick -Up Fee outlined in the Service Fee Schedule in section 11.01. (2) Roll -Cart Customers: If the Contractor does not collect any solid waste due to a Contract Service Exception, the Contractor may not return for a separate DickuD. and the customer may have to wait until Residential and Commercial Solid Waste Collection Contract FY2019-25 Page 27 of 99 Page 31 of 329 Discussion Of Contract No. FY2019-2513, Amendment #2, Residential And Com... AGENDA ITEM #2.a. 8/30/2024 Version DRAFT the next regularly schedule pick-up day for service. (i) Roll -Cart Customers may not receive services after four (4) non - collection notices have been issued for any of the below listed Contract Service Exceptions. The Contractor will continue to charge the authorized account holder for the required service as outlined in the Service Fee Schedule section 11.01 even though the roll -cart is not being emptied while the Contract Service Exception is on-going. Notice of Non -Collection. If Contractor does not Collect any Solid Waste (or recyclables if applicable) due to a Contract Service Exception, Contractor must complete and leave a Non- Collection Notice securely attached to a container at or near the Set -Out Site; however, in the event that unsafe conditions do not permit Contractor to do so, it will instead use best efforts to immediately notify the Customer of the unsafe condition, including leaving a Non Collection Notice on the door of the Premise Unit, if safe to do so, or telephoning the Customer. (1) A Non -Collection Notice due to Dumpster or Roll -Cart Contract Service Exceptions must include the following information. (i) A description of the exception that the customer has violated. (ii) A notice of the authorized surcharge fee, if applicable, as outlined on the Service Fee Schedule in Section 11.01. (iii) Instructions of how the customer can remedy the violation. (2) The contractor will promptly upon request provide the KIB with a report of the customers who are issued a non -collection notice, the report will include the customer's name and reason for non - collection. Residential and Commercial Solid Waste Collection Contract FY2019-25 Pane 28 of 99 Page 32 of 329 Discussion Of Contract No. FY2019-25B, Amendment #2, Residential And Com... AGENDA ITEM #2.a. 8/30/2024 Version DRAFT 9.06 Other Special Customer Services. Upon Customer request, Contractor may provide special services in addition to any prescribed Contract Services following approval by KIB based on the following information: a. A description of services, including their proposed scope; and, b. Any additional surcharge to be charged for such service. 9.07 Contract Service Assets. a. Contractor Operations and Maintenance Facilities. (1)Location. Prior to the Contract Commencement Date, Contractor will secure possession and use of such operations and maintenance facilities, including a local Contractor Office, which shall be located on publicly maintained roads within the Borough. Contractor's Office shall be located in the KIB or City of Kodiak at the address provided in Contractor Documentation. If Contractor sites its operations and maintenance facilities in the KIB or City of Kodiak, it will do so in accordance with applicable laws, including zoning laws, with ample ingress and egress for vehicles. Contractor will maintain its facility in a neat, clean, and presentable manner, including regular sweeping of related grounds for litter. (2) KIB Access. KIB and its designees shall be permitted to enter Contractor's operations and maintenance facilities or Contractor Office during Contractor Office Hours upon two (2) hours prior notice, and shall be permitted to investigate, observe, inspect, and review Contractor's operations and Contract Service Assets. Contractor will make available a management representative or other authorized person to escort each KIB representative through facilities. This right does not limit KIB' s right to inspect Contractor's Vehicles. b. Solid Waste Refuse Containers. Residential and Commercial Solid Waste Collection Contract FY2019-25 Page 29 of 99 Page 33 of 329 Discussion Of Contract No. FY2019-25B, Amendment #2, Residential And Com... AGENDA ITEM #2.a. 8/30/2024 Version DRAFT (1) afus_ Roll -Carts and Dumpsters. Contractor will maintain at all times a sufficient number of containers to execute its obligations under this Agreement. All containers shall be on hand and ready for service no later than the date provided in Contractor Transition Plan, and shall ensure that all Roll -Carts and Dumpsters conform with the specifications described in Contractor Documentation, as approved by KIB, Including Bear Carts. In addition, Contractor shall label roll -carts with use instructions approved by the KIB for any new roll -cart user. Basic operating instructions will be hot stamped onto roll -carts or the roll -carts lid. Contractor provides no express warranty of duration for the roll -carts, and Contractor's only obligation with regards thereto shall be to provide and maintain such roll carts in accordance with the contract. (2) Roll -Off Containers. Contractor will provide Roll -Off Containers no later than the date provided in the Contractor Transition Plan. Contractor may provide Roll -Off Containers that are not new if, in the sole judgment of the KIB Representative, they are in good repair and appearance. (3) Replacement Containers. Contractor will provide additional and replacement containers (other than Compactors) as necessary to ensure that Customer always has a container. (4) Inventory. Contractor will prepare a preliminary inventory of Roll-Refase Carts and Dumpsters that Contractor will acquire or supply as required by the Transition Plan as Contractor Documentation. In its next Monthly Report following delivery of any Cart as required by the Transition Plan, Contractor will complete and finalize the inventory. In each Annual Report following completion of the Transition Plan, or within ten (10) business days upon request by KIB, Contractor will update the inventory to reflect acquisition or replacement of Roll Refuse Carts and Dumpsters, accompanied by a representation and warranty signed by Contractor that all Roll Rpf---^ Carts and Dumpsters meet specifications. (5) Changes in Service, Repair and Replacement. Contractor will exchange, remove and/or deliver containers at the time directed by KIB, and compensated by surcharges, if any, listed on the Contractor Service Fee Table, including for thefollowing: (i) Changes in Service; (ii) Repair of Damaged Containers; and, (iii) Replacement ofdamaged orstolen Containers. (6) Locks. Within one week of Customer direction, Contractor will provide locks on a Dumpster for the surcharges listed on the Contractor Service Fee Schedule. (7) Required Labeling for Roll -Carts. Contractor will label Roll -Carts with message and use instructions approved by the KIB for any new Roll -Cart user. Basic operating instructions will be hot stamped onto carts. Residential and Commercial Solid Waste Collection Contract FY2019-25 Page 30 of 99 Page 34 of 329 Discussion Of Contract No. FY2019-25B, Amendment #2, Residential And Com... AGENDA ITEM #2.a. 8/30/2024 Version DRAFT Contractor provides no express warranty of duration for the roll -carts, and Contractor's only obligation with regards thereto shall be to provide and maintain such roll carts in accordance with the contract. c. Use and Possession of Contract Service Assets. Contractor will either own each Contract Service Asset or ensure that any lease, financing documentation, rents or purchases by installment or conditional sale agreement with respect to each Contract Service Asset allows KIB's acquisition or purchase of Contract Service Assets, pursuant to Section 3.03 of this Agreement. Contactor will provide a copy of the Contract Service Asset Document upon KIB' s request. Any Contract Service Asset Document shall: (1) Permit the Guarantor to assume Contractor's obligations and to continue use of Contract Service Assets in performing Contract Services; and, (2) Permit KIB or its designee to assume Contractor's obligations and to continue use of Contract Service Assets in performing Contract Services. 9.08 Service Standards. Contractor will provide Contract Services in accordance with the following provisions: a. Litter, Spills and Leaks. (1) Litter. Contractor will ensure that each collection Vehicle carries a broom, rake aad-shovel, and absorbent material at all times so as to ensure its ability to perform its obligations with respect tomaterial spills and liquid leaks, as provided in this section. (2) Material Spills. Contractor will only transport collected waste and recyclables in covered vehicles. Contractor will prevent materials from escaping, dropping, spilling, blowing, or scattering from Vehicles during collection and transportation. Contractor will immediately remove any materials that are dropped, blown, spilled, scattered, or tracked onto any alley, street or public or private place, and dispose of such materials consistent with the requirements set forth in this Agreement. (3) Liquid Leaks. During collection and transportation, Contractor will also prevent oil, hydraulic fluid, paint, or other liquid from leaking out of Vehicles, either from the vehicle itself or from the container or collection of solid waste it is carryinci. Contractor will ensure that each collection vehicle carries petroleum absorbent materials. Contractor will immediately cover leaked fluids with absorptive materials, remove those materials from the ground and apply a cleaning agent to cleanse the soiled spot. Contractor will assure that no hydraulic fluid or other liquid leaks from any Vehicle onto the pavement. If a leak does occur, Contractor will immediately clean it up. Residential and Commercial Solid Waste Collection Contract FY2019-25 Page 31 of 99 Page 35 of 329 Discussion Of Contract No. FY2019-25B, Amendment #2, Residential And Com... AGENDA ITEM #2.a. 8/30/2024 Version DRAFT (4) Set Out Sites. Upon arrival at a set out site if the Contractor observes any type of liquid substance that may be harmful to the environment such as oil, hydraulic fluid, paint, anti -freeze, or other liquid leakinp from the roll -off container the Contractor will be required to notify the KIB, clean up the leaked fluids, and haul the roll -off to be emptied and repaired. 3. Customer Privacy. Contractor will strictly observe and take such actions in its provision of Contract Services as are reasonably necessary to preserve its Customers' privacy rights. Contractor will not reveal information identifying individual customers or the composition or contents of a Customer's waste stream to any person other than KIB, unless otherwise directed by means of a valid court order, unless required to do so by some applicable legal duty, or upon the valid authorization of the Customer. Further, Contractor will use reasonable business efforts to keep that information confidential among its own staff, consultants, representatives, agents, and any other persons acting on Contractor's behalf. This provision will not be construed to preclude Contractor from preparing, participating in, or assisting in the preparation of, waste characterization studies or waste stream analyses that may be required by law. In addition, Contractor will not market, sell, convey, or donate to any person any list with the name or address of Customers. The rights accorded customers pursuant to this section are in addition to any other privacy right accorded Customers pursuant to applicable law. Contractor will use reasonable business efforts to keep information with respect to Customers and customer service information, including, but not limited to, accounts serviced, containers, special services, recyclables inventory, sales of recyclables and contaminants, confidential among staff and its consultants, if any, as permitted by applicable law. c. Vehicles and Drivers. (1) Leak -Proof Vehicles. Vehicles used in collection or transportation of recyclables must have watertight beds of metal or impervious material that can be cleaned. (2) Vehicle Identification. Contractor will ensure that its name and telephone number are clearly shown on each Vehicle, so as to indicate that it is owned and operated by Contractor. d. Pavement and Utilities. Contractor is responsible for damage to pavement and driving surfaces if collection sites are located on public or private property, other than ordinary wear and tear, if the damage is the result of vehicles exceeding the maximum weight limits allowed by applicable Law or Contractor's negligent operation of vehicles. Customer or KIB may direct Contractor to promptly repair or replace damaged driving surfaces or utilities or repair and replace them itself or through a third party, to satisfaction of customer or KIB, as the case may be. Contractor will reimburse customer for his or her costs of repair or replacement and KIB or City of Kodiak the reimbursement costs of repair or replacement. Contractor is responsible for damage to public and private utilities, whether located on public streets or property or private property, if damage is the result of the inattention, Residential and Commercial Solid Waste Collection Contract FY2019-25 Pane 32 of 99 Page 36 of 329 Discussion Of Contract No. FY2019-25B, Amendment #2, Residential And Com... AGENDA ITEM #2.a. 8/30/2024 Version DRAFT carelessness, or negligence of Contractor e. Damage to Property or Personal Injury. Contractor shall not intentionally or negligently cause damage to property or personal injury in conjunction with the provision of Contract Services. Contractor agrees to repair or replace any property that sustains damage as a result of Contractor's negligence during the course of its performance of the Contract Services, whether the property is public or private, to the satisfaction of the owner, and will reimburse to the satisfaction of an injured individual, the cost of any personal injury caused by the negligent or willful acts or omissions of Contractor. Notwithstanding any rights KIB may have in such instances for breach of contract and to Indemnification by Contractor, any and all disputes between Contractor and any other Person regarding damage to private property or any other injury arising out of Contractor's negligence or willful misconduct are civil matters between the Contractor and that Person. 9.09 Billing and Accounting Practices. a. Customer Billing and Fee Collection. (1) Service Fees and Surcharges. Contractor will provide billing and bill collection services at the time and in a manner satisfactory to KIB, consistent with the Contractor Service Fee Schedule, Senior Discount, Adjusted Tonnage Amount, and any other fees directed by KIB. (2) KIB Fees. (i) Amount. On behalf of KIB, Contractor will charge Customers a fee or fees in the amount directed by KIB. Contractor will not separately itemize that fee or fees on invoices to Customers or any other correspondence with Customers, unless authorized by KIB. (ii) Recording Fees. Upon receipt of any Customer's payment of fees for Contract Service, Contractor will simultaneously record receipt of KIB' s fees in separate accounts within Contractor's detailed general ledger. Those fees belong to KIB and not to Contractor. (iii) Remitting Fees to K/8. Contractor will remit to KIB amounts equal to KIB's fees at the time directed by KIB. Contractor may retain the remaining amounts received from Customers as compensation for fully and timely satisfying Contractor 's obligations under this Agreement. b. Customer Service Subscription. (1) Form and Content. Before commencing Contract Service for a new Customer, or changing Contract Service levels or frequency for an existing Customer, Contractor will provide the Customer with a written Subscription Summary. Contractor may include a waiver of damage liability and/or Customer indemnity in connection with Collection on a Customer's private driveway or pavement in form and content satisfactory Residential and Commercial Solid Waste Collection Contract FY2019-25 Page 33 of 99 Page 37 of 329 Discussion Of Contract No. FY2019-25B, Amendment #2, Residential And Com... AGENDA ITEM #2.a. 8/30/2024 Version DRAFT to KIB. (2) Service Requests. Contractor will accept Customer's requests for commencement of or changes in regular or special Contract Service by phone, mail, fax, orE-mail. (3) Copies. Contractor will provide KIB with a copy of any Subscription Summary promptly upon request. SECTION 10: RECORDKEEPING AND REPORTING 10.01 Acknowledgement. Contractor understands and acknowledges that KIB shall have a right to review certain Contractor's Records, and to receive Reports, for various reasons including: a. The enforcement of Customers' rights; b. The evaluation of Contractor's performance of its duties pursuant to this Contract; c. To preserve KIB's right to performance of Contractor's Performance Obligations, or to ensure that a third Person or Subcontractor performs its duties pursuant to this Contract; and, d. To confirm and/or determine the amount of any Contractor Payment Obligation 10.02 Records. a. Maintenance. Contractor will keep accurate and complete Records. b. Preservation and Retention. Unless otherwise directed by KIB, specified in this Contract, or mandated by Applicable Law, Contractor will preserve and retain all Records related to Its Performance Obligations for the full Contract Term, including any extensions, and for at least two (2) years following the Termination Date. c. KIB Right to Inspection and Audit of Contractor Records. (1) Location. (i) Contractor acknowledges the KIB's right of inspection, but such inspection shall be of the KI B's own actions and efforts. (ii) Inspection or Audit at Contractor's Office. Upon at least seven (7) days' prior written request, Contractor will make the Records available to KIB or its designees for inspection, review, or audit at Contractor Office during Contractor Office Hours. (2) Scope of KIB's Right to Inspect or Audit. Residential and Commercial Solid Waste Collection Contract FY2019-25 Page 34 of 99 Page 38 of 329 Discussion Of Contract No. FY2019-25B, Amendment #2, Residential And Com... AGENDA ITEM #2.a. 8/30/2024 Version DRAFT KIB shall have a right to inspect any of Contractor's Records related to Contractor's execution of its Performance Obligations at any time with reasonable notice, and to complete an audit of such Records once per Contract Year. KIB's right to inspect or audit include, but are not limited to, Records pertaining to: (i) Customer Special Service Surcharges that Contractor charged to and collected from Customers; (ii) Contract Fees (iii) Tonnage of Solid Waste Collected, Processed, Diverted or Disposed; (iv) Customer complaints; and, (v) Other Records necessary to confirm Contractor's compliance with its Performance Obligations. 10.03 Reporting. a. Annual Report. Contractor will submit a complete Annual Report to KIB no later than April 30 X15 of each Contract Year, which shall address the preceding Calendar Year. At a minimum, the Annual Report shall include the following information: (1) Number of personnel employed by Contractor during reporting period, and a description of how many personnel are assigned to specific functions (e.g., drivers, mechanics, administration); (2) Number of Vehicles by type (3) Number of Containers in service, identified by size of container; (4) Location of residential Roll -Off Containers; (5) Disposal load count, weight, and cost for C&D, Commercial MSW, Residential MSW, metal, trash; (6) Annual summary ofquarterly Recycling reports; and, (7) Contractor Recommendations. b. Monthly Meeting. Contractor shall participate in a monthly meeting with KIB at a time and location of KIB's choosing. 10.04 Financial Records and Reports. a. Maintenance of Records. (1) Content. Contractor will maintain in Contractor's Office accurate and complete financial Records of the following: (i) Customer receipts; Residential and Commercial Solid Waste Collection Contract FY2019-25 Page 35 of 99 Page 39 of 329 Discussion Of Contract No. FY2019-25B, Amendment #2, Residential And Com... AGENDA ITEM #2.a. 8/30/2024 Version DRAFT (ii) Payments to KIB (including Contractor Payment Obligations, such as any Contract Fee); and, (iii) Costs and expenses associated with satisfying Performance Obligations, whether by Contractor, its Subcontractor, or another Affiliate. Contractor may maintain financial Records associated with Goods or Services provided by an Affiliate in the office of the Affiliate but will provide KIB with a copy ofthose Records within ten (10) days of KIB request. (iv) Form. Contractor will maintain its financial Records on an accrual basis and in accordance with Generally Accepted Accounting Principles. Such Records shall set forth financial information regarding Contractor's operations under this Contract separately from any other operations under other contracts or in other locations, as if Contractor were an independent entity providing service only to KIB. SECTION 11: CONTRACTOR SERVICE FEE AND SPECIAL SURCHARGES 11.01 Contract Service Fee Schedule. Contractor Service Fees adopted by KIB as of the Contract Commencement Date are appended for convenience of the Parties to this Agreement. KIB may amend these Fees pursuant to Applicable law, and consistent with this Agreement. Amended Fees will automatically be deemed to apply to this Contract without any further action. Contractor is deemed to have knowledge of Applicable Law, including KIB resolutions and ordinances. However, for convenience of administering this Contract, the Parties may from time to time amend this Section by attaching the most recent dated current Contractor Service Fee resolution or ordinance to this Section. In addition, if a Customer Requests Service of a capacity and/or frequency not provided in the Contractor Service Fees adopted by KIB, Contractor may charge an appropriate Fee for that service following KIB approval and Customer agreement. a. Amounts Paid by Customers for Subscribed Service. Contractor may charge Contractor Service Fees to Customers as compensation for providing Contract Services in compliance with all Performance Obligations. The Contractor Service Fee will not change except under Section 11.03. The Tonnage Adjustment Amount will be added to or subtracted from the Contractor Service Fee under Section 11.03(b). b. Amounts Paid by KIB for Senior Discount. On each July 1 (or other day designated by KIB but no less frequently than annually) KIB will pay Contractor the aggregate amount of Senior Discounts that Contractor gave Customers during the period beginning April 1 of the prior year and ending March 31 of that year (or period commensurate with another payment date designated by KIB). c. IResidential Roll -Off Clean Up Costs shall be compensated by a one-time charge of $4.93 to each customer utilizing a roll -cart and self -haul Residential and Commercial Solid Waste Collection Contract FY2019-25 Page 36 of 99 Page 40 of 329 Discussion Of Contract No. FY2019-25B, Amendment #2, Residential And Com... AGENDA ITEM #2.a. 8/30/2024 Version DRAFT customerwhich will appear on their April 2021 invoice, and on the January invoice for subsequent years. This fee will be adjusted annually on January 1, based on the actual cost of the twelve-month period from November 1 -October 31 preceding the January 1 charge. Actual cost will be determined based upon the costs of picking up any litter and trash around residential roll -off containers, not including bulky items which are too large to fit in a trash bag or any hazardous materials, for a distance of 20 feet to be charged in 1 -minute increments of time, for a fee of $1.00. At the end of each month, Alaska Waste will provide KIB with copies of route sheets to document actual time spent, along with a summary of those sheets. Commented [PV6]: From Amendment #1 Contractor Service Fee For ROLL -CART Service Container Monthly Service Fee Senior Discount 96 -gallon Bear -Resistant Roll Cart $49.25 $42.25 (-$7.00) Each additional Roll Cart 119.25 $42.25 (-$7.00) Surcharges for ROLL -CART Services Description Section Amount Re -Delivery Fee for remedy 6.02 $50.00 of non-payment of roll -cart services, removal after ninety 90 days. Extra Bag Fee 9.05 $6.87 per additional bag Contractor Service Fee Surcharges for SERVICES shall not exceed Activity Contractor Service Fee (per occurrence) On-call Collection of Bulky Waste $20.00 per call (not item) plus Direct Cost of Disposal Distance Charge $3.50 per mile beyond United States Coast Guard base Rollout Service for Non -Eligible $7.36 Customers - Initial 30 feet or fraction Rollout Service for Non -Eligible $6.13 Customers - Each additional 30 feet Residential and Commercial Solid Waste Collection Contract FY2019-25 Page 37 of 99 Page 41 of 329 Discussion Of Contract No. FY2019-25B, Amendment #2, Residential And Com... 8/30/2024 Version DRAFT Beginning 7 months after Collection Commencement Date, replacement of Cart in excess of once per calendar Year. $25.00 plus Direct Cost of Cart Bear lock for Customers in portion of Contract Service Area not required to have bear locks Contractor to provide all bear resistant roll carts - No initial Customer Charge Lock Bar on dumpster $25.00 to install, plus Direct Cost of Lock Bar according to the applicable current market value of a lock -bar, no charge thereafter Re -Delivery Fee for remedy of non- $50.00 per roll -cart re -delivered $75.00 per roll -off or front load dumpster payment of services. Roll -carts removed after ninety (90) days, re -delivered. Dumpsters removed after sixty (60) ter Clean -Up Costsl r $5.00 Residential and Commercial Solid Waste Collection Contract FY2019-25 Page 38 of 99 AGENDA ITEM #2.a. Commented [PV7]: From amendment #1 Commented [PV8]: *Added in new table above, but wanted to show there would be no duplication. Page 42 of 329 Discussion Of Contract No. FY2019-25B, Amendment #2, Residential And Com... 8/30/2024 Version DRAFT Surcharges for DUMPSTER Services New Service Delivery Fee 16.02 Limits. (outside City Limits each delivery will equal a full haul fee for that size of dumpster) $55 per Front Load Dumpster Residential and Commercial Solid Waste Collection Contract FY2019-25 Page 39 of 99 AGENDA ITEM #2.a. Commented [PV9]: From Amendment #1 Page 43 of 329 Discussion Of Contract No. FY2019-25B, Amendment #2, Residential And Com... Contractor Monthly Service Fee for DUMPSTERS Dumpster Number of Dum sters Scheduled Tips Per Week Size — 1 – 2 – 3 – 4 – 5 – 6 – Extra Pickup 2 -yard 313.42 $626.85 $940.27 $1,253.70 $1,567.12 $1,880.53 $83.24 2.6 -yard $418.65 $837.30 $1,255.96 $1,674.61 $2,093.26 $2,511.89 $111.19 3 -yard $488.80 $977.59 $1,466.39 $1,955.19 $2,443.99 $2,932.79 $129.82 3.6 -yard $578.26 $1,156.52 $1,734.78 $2,313.04 $2,891.30 $3,469.58 $153.58 4 -yard $637.91 $1,275.81 $1,913.71 $2,551.61 $3,189.52 $3,827.45 $169.42 5 -yard $747.91 $1,495.82 $2,243.73 $2,991.64 $3,739.55 $4,487.45 $198.64 5.5 -yard $802.91 $1,605.81 $2.408.71 $3,211.62 $4,014.52 $4,817.45 $213.24 6 -yard $857.91 $1,715.82 $2,573.72 $3,431.63 $4,289.54 $5,147.45 $227.85 8 -yard $1,093.17 $2,186.35 $3,279.52 $4,372.70 $5,465.87 $6,559.02 $290.33 Contractor Service Fee for multiple dum sters is equal to the above scheduled amounts multiplied by the number of dum sters. Surcharges for DUMPSTER Services New Service Delivery Fee 16.02 Limits. (outside City Limits each delivery will equal a full haul fee for that size of dumpster) $55 per Front Load Dumpster Residential and Commercial Solid Waste Collection Contract FY2019-25 Page 39 of 99 AGENDA ITEM #2.a. Commented [PV9]: From Amendment #1 Page 43 of 329 Discussion Of Contract No. FY2019-25B, Amendment #2, Residential And Com... 813012024 Version DRAFT Non -Collection return for 9.05 Fee corresponding to container size as pick-up fee outlined as "Extra Pick -Up" in the table titled "Contractor Monthly Service Fee for Dumpsters". Re -Delivery Fee for remedy of 6.02 $75 per Roll -Off or Front -Load Dumpster non-payment of services $213.61- after sixty (60) days. Overage Fee 6.02 $42.75 per extra yard serviced. Change in size and number 6.02 $0.00 per exchange per Dumpster of Dumpsters, not more frequently than once per Contract Year Lock Bars on Dumpster(s) 6.02 $25.00 to install,plus Direct Cost of Lock fee (if applicable) Bar according to applicable current market value of lock bar, no charge thereafter. Commercial Dum ster Repair 6.06 $150 per hour, plus cost of materials. Shop Rate Residential Roll -Off or Additional Set -Out Fee 6.03.b. Roll -off Rate per size on "Contractor Monthly Service Fee for Roll -Off Services" Contractor Monthly Service Fee for Roll -Off Service 10-20 cubic 30-40 cubic 10-20 cubic yard 30-40 cubic yard yards yards Compactor Compactor $160.63- $213.61- 160.63$161-:44 per haul $213.61$21-4-.69 per $-1-6-1-:44 per $214.69 plus disposal fee plus haul plus disposal fee haul plus disposal fee $21.25 disconnect fee (if plus $21.25 disconnect disposal fee plus disposal applicable) fee (if applicable) fee Residential and Commercial Solid Waste Collection Contract FY2019-25 Page 40 of 99 AGENDA ITEM #2.a. Commented [PV101: From Amendment #1 Page 44 of 329 Discussion Of Contract No. FY2019-25B, Amendment #2, Residential And Com... 8/30/2024 Version DRAFT Contractor Monthly Service Fee for Cardboard Recycling Service 10 cubic yards 20 cubic yards 30 cubic yards 40 cubic yards 160.63$464-.44 160.634-1- 4 JL13.61$244 5 213.61$214.69 fee per pull fee per pull fee per pull fee per pull 11.02 Contractor's Cost Covered By Service Fee. a. The Contractor Service Fee includes all Contractor's direct costs, indirect costs, as well as any profit or return on investment for providing Contract Services, including the following: (1) Labor, including wages and fringe benefits, drivers, Customer service personnel, supervisors, and administrators; (2) Acquisition, repair and maintenance of Contract Service Assets, Including buildings grounds, and Vehicles; (3) Tools and supplies; (4) Fuel and utilities; (5) Insurance premiums and fees for the Letter of Credit or any further assurance of performance; (6) Taxes; (7) Securing and maintaining Permits and complying with Applicable Law; (8) Fines and penalties for violation of Permits or Applicable Law; (9) Handling Unpermitted Waste discovered in Solid Waste, including disposal thereof as required by Applicable Law; (10) Negligence or misconduct; (11) Fees imposed by Regulatory Agencies, including any Contract Fee; (12) Fees charged by Solid Waste Management Facilities, such as tipping fees a KIB Landfill; and (13) Any other costs associated with the provision of Contract Services not explicitly compensated by surcharge to Customer or charge to KI B. b. Contractor Service Fee is not adjusted for changes in these costs, except under Section 11.03. Reference in this Contract to providing Contract Services "without surcharge" or similar language does not infer that absence of those words, "without surcharge", elsewhere in this Contract, means that Contractor is entitled to either of the following: (1) Compensation in addition to the Contractor Service Fee listed on the Contractor Service Fee Schedule; or, (2) Reimbursement of Direct Costsor Contractor's Reimbursement Costs. Residential and Commercial Solid Waste Collection Contract FY2019-25 Page 41 of 99 AGENDA ITEM #2.a. -- Commented [PV11]: From Amendment #1 Page 45 of 329 Discussion Of Contract No. FY2019-25B, Amendment #2, Residential And Com... AGENDA ITEM #2.a. 8/30/2024 Version DRAFT 11.03 Adjustment of Contractor Service Fee. a. Adjustment events and timing. The Contractor Service Fee will be upon direction of the KIB, in its sole discretion. b. Annual Adjustment On July 1, 2020, and each following July 1, the Contractor Service Fee will be adjusted so as to make it equal to the Contractor Service Fee that is in effect during the prior Contract Year (or portion of that Contract Year), plus or minus the Weighted Adjustment Percentage times that Contractor Service Fee. Between April 1 and April 15 of each Contract Year, Contractor will prepare a statement setting forth Contractor's detailed calculation of Contractor's requested annual adjustment in Contractor Service Fee in the form of the following examples or other format prescribed by KIB (see, for example, subsection hl). The calculation of disposal component shall be made based upon the estimated change in the disposal cost proposed as provided by the Borough Manager or designee. Contractor's statement is for convenience of KIB but is not binding on KIB. KIB may make corrections or adjustments to that statement. After final Assembly approval of any change in disposal rates the disposal component adjustment shall be modified accordin I he method used to calculate the annual service fee Commented [Pv12]: From Amendment #1 adjustment is set forth in the following subsection c. c. Calculation of Annual Service Fee Adjustment. The annual adjustment will be calculated for five Collection Rate Cost Components and Recycling as follows: (1) Collection & Administrative Cost Component: Annual Changes in the CPI. The operational component identified by the Contractor for each level of service will be adjusted by 75% of the CPI percent change from second half of one year to the next (i.e., from the second half of year n-1 to the second half of year n, with n being the most current year available), but no greater than 5%, as confirmed by KIB. "CPI" means the second half consumer price index (CPI -U) for Anchorage, Base Period 1982-84=100, Series ID: CUUSA427SAO, not seasonally adjusted, as published by the U.S. Department of Labor, Bureau of Labor Statistics at www.bls.gov. (2) Fuel Cost Component: Annual Changes in the PPI. The fuel component identified by the Contractor for each level of service will be adjusted by 75% of the PPI percent change from February to February (i.e. from February of year n-1 to February of yearn with n being the current year), but no greater than 5%, as confirmed by KIB. "PPI" means the annual Producer Price Index for No. 2 diesel fuel, Base Period 1982=100, Series ID: WPU057303, not seasonally adjusted, as published by the U.S. Department of Labor, Bureau of Labor Statisticsatwww.bls.gov. Residential and Commercial Solid Waste Collection Contract FY2019-25 Page 42 of 99 Page 46 of 329 Discussion Of Contract No. FY2019-25B, Amendment #2, Residential And Com... AGENDA ITEM #2.a. 8/30/2024 Version DRAFT (3) Fixed Cost Component: No Change Over the Initial Contract. The fixed costs identified by the Contractor for each level of service will not be adjusted and remain constant over the term of the initial contract. These costs include, but are not limited to vehicle depreciation, leases, cart, and container rent (as necessary to maintain containers provided to Contractor at the start of this contract, and for any new containers purchased by the Contractor). (4) Disposal Cost Component: Change in Disposal Fee and Tonnage Per Customer. The disposal cost identified by the Contractor for each level of service will be adjusted by 100% of the change, if any, in the tonnage rate charged Contractor at KIB Landfill (compared to the rate in effect when the RFP was issued October 2018 April , a 'n' Q .�), and for the ,...-- Commented [PV73]: From Amendment #1 change, if any, in the ratio between tons disposed and the number of customers served (compared to the ratio as calculated in October 2018 on April15,2018). (5) Profit: No Change Over the Initial Contract. The percentage of profit (operating margin) identified by the Contractor for each level of service will not be adjusted and remain constant over the term of the initial contract. Profit is calculated as a percentage of the total Collection rate. (6) Recycling: Annual Changes in the CPI. The Contractor Service Fee for Recycling will be adjusted by 75% of the CPI percent change, if any, from second half of one year to the next (i.e., from the second half of year n-1 to the second half of year n, with n being the most current year available), in the CPI during the period commencing April 1 of the previous year and ending March 31 of the current year, but no greater than 5%, as confirmed by KIB. d. Summary of Service Fee Adjustments. The following table summarizes the Contract Service Fee adjustments for each Collection Rate Cost Component: Rate Cost Component Adjustment 1) Collection and Administrative Costs CPI 2) Fuel PPI 3) Fixed Cost Fixed 4) Disposal Cost Tonnage rate and tons per customer 5) Profit % of Rate Total Collection Rate Sum of Above e. Adjustment for Changes in Operations. As soon as possible following agreement of the Parties under Section 14, the Contractor Service Fee will be adjusted for a change in Contractor's Direct Costs of providing Contract Services due to changes in Performance Obligations. To the extent permitted by Applicable Law, an adjustment will reflect Contractor's costs from the date incurred. The Contractor Service Fee will not otherwise be adjusted (for example, no adjustment will occur for any changes in the price of fuel). Residential and Commercial Solid Waste Collection Contract FY2019-25 Page 43 of 99 Page 47 of 329 Discussion Of Contract No. FY2019-25B, Amendment #2, Residential And Com... AGENDA ITEM #2.a. 8/30/2024 Version DRAFT f. Rounding. (1) Calculations. Interim calculations shall be rounded to the nearest hundredth I.e., 0.499 and 0.510 shall be rounded to 0.50, excepting percentage changes used in calculations, which shall be rounded to the nearest hundredth percent i.e., 0.50% (2) Dollars. The final adjustment in Contractor Service Fee shall be rounded to the nearest penny. g. No Adjustment if Any Breach or Default Remains Uncured. The Contactor Service Fee will not be adjusted upwards if Contractor has Breached this Agreement or Defaulted on any Performance Obligation, and such Breach or Default remains uncured: h. Example Calculations of Annual Adjustments in Contractor Service Fee. The following is an example of how annual adjustments to the Contractor Service Fee will be calculated. The escalation, tonnage, and dollar amounts shown are examples only. (1) Annual adjustment of Collection and Administration Cost Component Due to Change in CPI. 2nd half, current year- 1 223.83 Calculation of/. 211 half, current year- 2 220.62 change in CPI Percent Change 1.45% (not more than 5%) Portion of% chane 75% 1.09% (2) Annual Adjustment of Fuel Cost Component Due to Change in PPI. Calculation of change in PPI February, current year 120.5 February, current year 122.3 Percent Change -1.47% (not more than 5%) Portion of% change 75% -1.10% Residential and Commercial Solid Waste Collection Contract FY2019-25 Page 44 of 99 Page 48 of 329 Discussion Of Contract No. FY2019-25B, Amendment #2, Residential And Com... 8/30/2024 Version DRAFT (3) Disposal Cost Adjustment EXAMPLE ONLY Row 2018 1 2019 1 2020 2021 Tonnage Rate Adjustment 1 Base Tonnage Rate ($/ton when proposal submitted)62 $398 $398 $398 2 Tonnage Rate in next contract year (July 1 - June 30) Percent increase (decrease) 9.94%- 9.94%- 9.94%- 3 from contract start Disposal Ton -per -Customer Adjustment 4 Prior year tons, actual 8,588.19 8,766.58 8,843.25 8,972.45 (January 1 - December 31 5 Customer actuals (as of April 3,115 3,150 3,245 3,240 6 Ratio, tons / customer 2.757 a.1sa 2.783 2.725 2.769 7 Percent increase (decrease) 0.94% -1.16% 0.44% from contract start Disposal Cost Component Adjustment, effective Jul 1 8 (1 + Row 3) x (1 + Row 7) - 1, 10.98%- 8.67%- 10.43%- rounded to hundredths �,GG 9.61% 9 Disposal Cost Component $14.83 16.4 $17.89- $4� 19.75 Note: All numbers shown are examples (not Actuals) shown for illustrative purposes. Green cells with bold and italic text are the contract start, which is used as the basis for calculations in all future years. Yellow cells are data that would be input each year based on tonnage rate, customer accounts, and scale house records. Tonnage Rate refers to the disposal cost at KIB landfill per ton of solid waste. Customer Actual refers to the Customer Count (See definition of "customer count') ernal�m,�,ll r.ffs %vhPr�ustnrner billed for the ntugleclef dspeisal. All rnbeFs shewR are examples (Ret aGtu ls) 6hewn fee illu6tFatiye p "'YY `"' In this example, the disposal component of rates in initial proposal would be adjusted by 10.98% 0.64% to take effect on the contract start date. The initial proposal rates would be adjusted by 8.67% 7.27% and would take effect on July 1, 2020, and 10.43% 9.01% on July 1, 2021. Residential and Commercial Solid Waste Collection Contract FY2019-25 Page 45 of 99 AGENDA ITEM #2.a. Commented [PV14]: From Amendment #1 -From From Amendment #1 Commented [PV16]: From Amendment #1 Page 49 of 329 Discussion Of Contract No. FY2019-25B, Amendment #2, Residential And Com... AGENDA ITEM #2.a. 8/30/2024 Version DRAFT (4) Example Application of Annual Update to Rate Components. Cost Components Rate Component Proposed Rate Next Year Adjustment Rate Adjustment Rate Method s Collection and Administrative Costs CPI$13.57 $0.15 $13.72 Fuel Fuel PPI $3.30 ($0.04) $3.26 Fixed (rent, depreciation, lease) Niflt o inflators $9. 00 $0.00 $9.00 Disposal Cost (Pass Tonnage rate and $14.83 $0.84 $15.67 Through) tons/customer Subtotal $40.70 $0.95 $41.65 Profit (7.5% of Rate) $3.30 $0.08 $3.38 Example Rate $44.00 $1.03 $45.03 (5) Adjusted Contractor Service Fee. The adjusted contractor service fee will be the current rate plus the sum of the rate adjustments. SECTION 12: MISCELLANEOUS PERFORMANCE OBLIGATIONS 12.01 Compliance With Applicable Laws. In General. All actions taken by Contractor under this Contract shall comply with all Applicable Laws. No Performance Obligation may be construed to relieve Contractor of any obligations imposed by Applicable Law. Contractor shall acquire and maintain in good standing all permits, licenses, and other entitlements necessary to complete its Performance Obligations. If a Permit issued by KIB remains in effect after the expiration or termination of this Contract, Contractor nevertheless may not operate within KIB for collection of Solid Waste formerly collected under this Contract. THIS PROHIBITION WILL SURVIVE THE TERMINATION OF THIS CONTRACT and KIB may seek specific enforcement of this prohibition pursuant to the provisions of this Agreement and as otherwise authorized by law. At least sixty 601 days prior to the Contract Commencement Date, and thereafter as requested, Contractor shall promptly deliver to KIB copies of any and all Permits, as well as other documentation, sufficient to evidence that Contractor has complied with all permitting and licensing requirements mandated by Applicable Law. Contractor shall pay all taxes pertaining to its Performance Obligations under this Contract. Ib. No Limitation on Duty to Comply. References in this Contract to particular provisions or requirements of Applicable Law may not be construed to limit Contractor's obligation to comply with all provisions of Applicable Law. Those references are intended to facilitate Contractor's satisfaction of its Performance Obligations and KIB's administration and specific enforcement of this Contract. Those references may not be construed to constitute lack of Contractor obligation to comply with other provisions or requirements of Applicable Law that are not specifically referred to or cited in this Contract. If any provision of this Contract is more stringent than Applicable Law, Contractor will comply with that provision. Residential and Commercial Solid Waste Collection Contract FY2019-25 Page 46 of 99 Page 50 of 329 Discussion Of Contract No. FY2019-25B, Amendment #2, Residential And Com... AGENDA ITEM #2.a. 8/30/2024 Version DRAFT c. Fines and Penalties. Contractor is solely liable for all fines and penalties that are imposed due to Contractor's actions, including fines and penalties that are the result of Contractor's Violation of Applicable Law. Contractor will not seek reimbursement from KIB or any Customer for any fines or penalties so imposed. Contractor will inform KIB within 24 hours upon receiving any violations, fines or penalties. d. Contractual Obligations. All Applicable Laws are incorporated in this Contract by reference as if set forth fully herein, and Contractor's compliance with such shall be construed as part of Contractor's Performance Obligations. If any Applicable Law is inconsistent with this Contract, the more stringent will apply. (1) Breaches. In addition to or in lieu of prosecuting violations of the KIB Code as misdemeanors, infractions, or other manner provided under the KIB Code, KIB may enforce Contractor's obligations under Applicable Law (Including the KIB Code) in the same manner as it may enforce Contractor's other contractual obligations under this Contract (including specific performance and as Breaches subject to cure), whether or not noncompliance with those provisions of Applicable Law has become a Violation. Neither prosecution of Contractor for noncompliance with Applicable Law nor enforcement of Applicable Law shall be a condition precedent to enforcing those Performance Obligations. In determining whether or not Contractor is in noncompliance with those provisions, the standard of proof applicable to breach of contract will apply. KIB has no obligation to enforce any Applicable Law. (2) Violation. Contractor's Violation of Applicable Law is a Default subject to contest pursuant to Section 1 5o this Contract. e. KIB's Protection of Public Safety, Health, and Welfare. Contractor acknowledges that KIB is authorized to make all necessary and reasonable rules and regulations regarding all aspects of MSW Management Services to protect the public's health, safety, and welfare. No provision in this Contract may be deemed to limit KIB's power to take any action that KIB, in its sole discretion, deems necessary or appropriate to protect the public's safety, health, and welfare. f. Compliance With KIB Code. Contractor must comply with the KIB Code, subject to possible adjustments in Contractor Service Fee in the event of Changes in Law. Contractor warrants and represents that it is fully acquainted with the provisions of KIB Code. Contractor must pay Liquidated Damages with respect to non-compliance with specified provisions of the KIB Code, including failure to remedy any Violation of KIB Code within five (5) days of the date of notice of Violation, and in the event of conviction of a Violation. g. Inspection or Audit at Contractor's Office. Upon at least seven 71 days' prior written request, Contractor will make the Records available to KIB or its designees for inspection, review, or audit at Contractor Office during Residential and Commercial Solid Waste Collection Contract FY2019-25 Page 47 of 99 Page 51 of 329 Discussion Of Contract No. FY2019-25B, Amendment #2, Residential And Com... AGENDA ITEM #2.a. 8/30/2024 Version DRAFT Contractor Office Hours. 12.02 Contractor's Personnel. a. Identification, Appearance, and Conduct. Contractor will train and require each of its personnel to present a neat, tidy, and orderly appearance, and shall require those personnel responsible for Collecting, Delivering, and Disposing of Refuse or Recyclables to wear uniforms and safety vests identifying them as Contractor's employees. Employees shall be directed to conduct themselves in a courteous manner, refrain from using loud or profane language while on duty, and to perform Collection in as quiet a manner as possible. b. No Gratuities. Contractor will not permit its personnel to demand or solicit, directly or indirectly, any additional compensation or gratuity from any Customer or member ofthe public. c. Compliance with OSHA. Receipt of a citation or failure -to -abate notice from the State Division of Occupational Safety and Health or any other similar Regulatory Authority shall constitute a Breach ofthis Agreement. 12.03 Communication With KIB. a. KIB Point of Contact All official communications from Contractor to KIB regarding this Agreement, or any of the Parties' respective rights and obligations thereunder, shall be directed to the Project Manager. b. Responsiveness to KI B. (1) Telephone Calls. Contractor will return any telephone calls it receives from KIB, to the individual who made that call, no later than the next KIB Business Day. (2) Meetings. Within one week of oral or written direction by KIB, Contractor will meet with KIB during KIB Office Hours at the location directed by KIB. (3) E-mails. Contractor will respond to all e-mails from KIB within two (2) KIB business days. (4) Written Correspondence. Contractor will respond to written correspondence from KIB within one week of receipt, or at such other time as maybe specified by KIB. SECTION 13: INDEMNIFICATION, INSURANCE, LETTER OF CREDIT 13.01 Indemnification. a. Contractor's Agreement to Indemnify KIB. To the extent allowable under Applicable Law, Contractor agrees that it will Indemnify and hold harmless, Residential and Commercial Solid Waste Collection Contract FY2019-25 Pane 48 of 99 Page 52 of 329 Discussion Of Contract No. FY2019-25B, Amendment #2, Residential And Com... AGENDA ITEM #2.a. 8/30/2024 Version DRAFT defend with counsel approved by KIB, and release KIB and KIB's Related Parties from and against all Liabilities and Losses paid, incurred or suffered by, or asserted against, KIB or KIB's Related Parties arising out of or in connection with this Contract, including in connection with any alleged failure of KIB or KIB's Related Parties to enforce provisions of this Contract or of Applicable Law. Contractor understands and acknowledges that this is intended to operate as an agreement pursuant to 42 U.S.C. Section 9607(e), and any corresponding provisions of the laws of the State of Alaska, to insure, release, protect, hold harmless and indemnify KIB from Liabilities and Losses set forth herein. b. Indemnity for Liabilities and Losses Arising from Contract Services. Contractor's Indemnity is limited to Liabilities and Losses resulting from Contract Services provided by Contractor from the Contract Commencement Date through the Termination Date. However, CONTRACTOR'S OBLIGATIONS UNDER THIS SECTION SHALL SURVIVE THE EXPIRATION OR TERMINATION OF THIS CONTRACT. c. Reimbursement of Enforcement Costs. If Contractor fails to pay any Indemnities and that failure results in any costs to KIB, within fifteen (15) days of KIB request, Contractor will pay KIB's Reimbursement Costs. 13.02 Required Insurances. Coverage Requirements. Without limiting its Indemnities, Contractor will secure and maintain insurance coverage meeting the requirements in this Section. KIB may require Contractor to secure and maintain larger amounts or types of coverage If it compensates Contractor the Direct Costs of the additional premium for that coverage under Section 11.02. Contractor may use a combination of primary and excess insurance coverage to satisfy these requirements. KIB may reduce insurance requirements If it determines that the reduction is in KIB' s best interest. Each liability policy must provide contractual liability coverage for Contractors Indemnities, including any necessary endorsement, schedule, or otherdocumentation. (1) General Liability Insurance. Written on ISO policy form CG 00 01 (occurrence) or its equivalent (and not CG 00 02 claims made) with limits of not less than the following: General Aggregate: $4 million Products/Completion Operation Aggregate: $4 million Personal and Advertising Injury: $1 million Each Occurrence: $2 million (2) Liability Coverage for Pollution Conditions Resulting from Transported Cargo. With a limit of not less than $2 million per occurrence covering Liabilities and Losses that the Contractor becomes legally obligated to pay as a result of claims for bodily injury, property damage, cleanup costs and other fines, fees or expenses assessed by federal or state agencies, KIB, or third parties, which result from pollution conditions caused by transported cargo, including waste. For the purposes of this Residential and Commercial Solid Waste Collection Contract FY2019-25 Page 49 of 99 Page 53 of 329 Discussion Of Contract No. FY2019-25B, Amendment #2, Residential And Com... AGENDA ITEM #2.a. 8/30/2024 Version DRAFT subsection, "pollution conditions" includes the dispersal, discharge, release, or escape of any solid, liquid, gaseous or thermal irritant or contaminant - such as smoke, vapors, soot, fumes, acids, alkalis, toxic chemicals, medical waste, and waste materials - into or upon land, any structure on land, the atmosphere, or any watercourse or body of water, including groundwater, provided the conditions are not naturally present in the environment in the amounts or concentrations discovered Contractor's general liability policy may be endorsed to provide for this pollution liability coverage. (3) Automobile Liability Coverage. Such insurance coverage shall be: written on ISO policy forms CA 00 12 or CA 00 20 (or their equivalent) with a limit of liability not less than $2 million for each accident endorsed to delete the pollution and/or the asbestos exclusion and include pollution liability (using form CA 99 48 or its equivalent) for accidental spills and discharges while transporting and/or processing materials; and, must cover all Vehicles that Contractor operates on public roads. (4) Financial Responsibility Coverage. If Contractor is subject to federal regulations, Contractor also will maintain any other coverage necessary to satisfy state or federal financial responsibility requirements. (5) Workers' Compensation and Employers' Liability. Contractor shall maintain coverage that meets the following requirements: (i) Workers' compensation benefits required by Applicable Law (including the State Labor Code or by any other state labor law), and for which Contractor is responsible; and, (ii) Employers' Liability coverage with limits of not less than the following: Each Accident: $1 million Disease — policy limit: $1 million Disease — each employee: $1 million b. Insurer Qualifications Contractor will secure insurance provided by an insurer that: (1) Is deemed acceptable by KIB; (2) Is an admitted company authorized to do business in the State of Alaska; (3) Has a size category of II or larger by AM. Best Company, Inc.; and (4) Has a rating of A or better by AM. Best Company, Inc. c. Insurance Coverage Requirements for Subcontractors. Contractor will insure each subcontractor performing contract services or transportation of solid waste by providing evidence that either: Residential and Commercial Solid Waste Collection Contract FY2019-25 Page 50 of 99 Page 54 of 329 Discussion Of Contract No. FY2019-25B, Amendment #2, Residential And Com... AGENDA ITEM #2.a. 8/30/2024 Version DRAFT (1) Contractor is maintaining insurance required by this section covering the activities of the subcontractor; or, (2) The subcontractor is maintaining insurance itself. d. Evidence of Coverage. Contractor will provide certificates of insurance endorsements, schedules and other evidence of insurance coverage requested by and acceptable to KIB at the following times: (1) On or before Contract Commencement Date, (2) With submission of each Annual Report, (3) Promptly upon renewal of policies, and (4) Within ten (10) days of KI B's request. e. Certificates of Insurance. Contractor will provide certificates (or other evidence of coverage) containing, at a minimum, the following information with respect to Contractor and any subcontractor; (1) Contract Name. Certificates of Insurance must explicitly identify this Contract (for example, Under Description of Operations) and if necessary to secure contractual liability coverage as an "insured contract" or otherwise, including a schedule or endorsement that specifically identifies this contract as: Kodiak Island Borough Residential and Commercial Solid Waste Collection and Recycling Services Contract. (2) Policy Details. Coverage type(s), policy numbers, policy effective and expiration dates, policy limits, and identification of each required insurance services office (ISO) policy form or confirmation of its equivalency to ISO policy forms required under this contract (such as "auto liability ISO from CA 00 12). Where this contract does not require a specific ISO policy form, the certificate of insurance must specifically reference the required type of coverage (such as "pollution liability" under Type of Insurance — Other) together with a summary description of its coverage (such as "pollution conditions caused by transported cargo" under Special Provisions); (3) Thirty -Day Cancellation Notice Requirement. Certificates of Insurance shall contain the express condition that KIB must be given written notice by mail at least thirty (30) days in advance of cancellation for all policies evidenced on the certificate of insurance. Endorsements cannot contain mere "best effort" modifiers or relieve the insurer from its responsibility to give that notice and the CANCELLATION information on the certificate of insurance must delete language such as "failure to do so shall impose no obligation or liability of any kind upon the insurer, its agents or representatives". (4) Deductibles and Self -Insured Retentions. Certificates of Insurance shall identify any deductible and self-insured retention. Upon KIB request, Contractor will reduce any self-insured retention as it applies Residential and Commercial Solid Waste Collection Contract FY2019-25 Page 51 of 99 Page 55 of 329 Discussion Of Contract No. FY2019-25B, Amendment #2, Residential And Com... AGENDA ITEM #2.a. 8/30/2024 Version DRAFT to KIB or provide a letter of credit, certificate of deposit or other financial assurance acceptable to KIB guaranteeing payment of all retained losses and related costs and expenses related to investigations, claims administrations, and legal defense. The letter of credit or certificate of deposit must be provided by a bank satisfactory to KI B; and (5) Claims Made. If KIB waives the prohibition on procuring claims made policies and insurance coverage is written on a claims -made form, then evidence is required that the "retro date" is before the Contract Commencement Date. Contractor must maintain that coverage for at least five (5) years after the Termination Date (or longer as required under this Contract). Promptly upon KIB request, Contractor must provide KIB with evidence of that coverage. THIS PROVISION SURVIVES THE TERMINATION OF THIS CONTRACT. f. Endorsements. Contractor must provide copies of the following endorsements or other documentation with respect to Contractor and any Subcontractor satisfactory to KIB: (1) Additional insured endorsement to each liability policy, explicitly adding KIB and its "officers, agents, and employees" as an additional insured party; (2) Waiver ofsubrogation; (3) Establishing Contractor's insurance as primary, with respect to all liabilities arising from Contractor's performance of any and all Contract Services; and, (4) Providing dedicated limits under a liability policy in favor of KIB as an additional insured. g. Schedules. Contractor must provide schedules or other evidence that liability policies of Contractor and any Subcontractor provide contractual liability coverage for Indemnities, such as listing this Contract as an "insured contract". h. Signature Verification. At KIB's request, Contractor must provide documentation verifying that the individual signing or countersigning the certificates, policies, endorsements, or other evidence of coverage of Contractor and any Subcontractor is authorized to do so and identifies his or her company affiliation and title. KIB may require complete, certified copies of Contractor's insurance policies at anytime. i. Notice of claims. If any Person makes a claim against Contractor or any Subcontractor exceeding the amount of any deductibles or self-insured retentions, Contractor will promptly notify KIB ofthe claim. j. Contractor accounting. Contractor will institute a comprehensive accounting system satisfactory to KIB to monitor all insurance requirements under this Contract, including those ofeach ofits Subcontractors. Residential and Commercial Solid Waste Collection Contract FY2019-25 Pane 52 of 99 Page 56 of 329 Discussion Of Contract No. FY2019-25B, Amendment #2, Residential And Com... AGENDA ITEM #2.a. 8/30/2024 Version DRAFT k. Contractor compliance. Contractor will comply with all requirements of its insurance policies and insurers. 13.03 Payment Security. Contractor shall provide the following to ensure payment of disposal fees and reimbursement of billing costs incurred by KIB in the event of a Default or Breach by Contractor: a. Performance Bond. Contractor shall provide a Performance Bond to KIB issued by an insurance company approved by KIB to secure payment of delinquent disposal fees in the following principal amounts: (1) During the first contract year: $348,000.00 (2) During the second contract year: $382,000.00 (3) During the remainder of the contract term: an amount equal to 3 months of the average disposal fees paid during the previous contract year. b. Pledged Bank Account. Contract shall deposit with a Bank approved by KIB the sum of $55,000.00 to be used to reimburse KIB for costs it may incur in billing refuse Customers in the event of a Default or Breach by Contractor under this Agreement. KIB shall be named as the only party authorized to make withdrawals from the account, and Contractor shall direct the Bank that holds the account to deliver monthly statements to KIB. Any interest on the account shall be payable to the Contractor. c. Payment Upon Default. (1) In the event that Contractor fails to pay disposal fees when due or is otherwise in Breach or Default of this Agreement, KIB may draw upon the Performance Bond, in one or more drawings, any amounts of money due to KIB but unpaid. (2) KIB may draw on the Pledged Bank Account, in one or more drawings, any reasonable expenses incurred by KIB in the event that, due to Contractor's Default or Breach, KIB assumes responsibility for issuing billing statements to Customers for refuse services. d. Return of Security. 1) The Performance Bond shall terminate, and amounts in the Pledged Bank Account may be paid to Contractor, no earlier than the date upon which KIB issues a certificate stating that: (i) This Contract has expired; or, (ii) This Contract has been terminated for a period of one -hundred and Residential and Commercial Solid Waste Collection Contract FY2019-25 Page 53 of 99 Page 57 of 329 Discussion Of Contract No. FY2019-25B, Amendment #2, Residential And Com... AGENDA ITEM #2.a. 8/30/2024 Version DRAFT eighty 1801 days or such other preference period provided under applicable law with respect to Contractor's bankruptcy or insolvency; or, (iii) Contractor has substituted an alternative letter of credit or other security document that KIB, in its sole discretion, has deemed acceptable; and, (iv) Contractor has paid to KIB all amounts to which it is entitled under this Contract. e. Survival of Terms. THIS SECTION 13.03 SHALL SURVIVE THE EXPIRATION OR TERMINATION OF THIS CONTRACT. 13.04 Guaranty Agreement. Any Person that served in any way as the basis for KIB' s evaluation of Contractor's financial strength and creditworthiness as part of Contractor's proposal to KIB must be made a legal, valid, and binding Guarantor of this Contract, and proof of such must be submitted to KIB in a form that KIB deems satisfactory. 13.05 Assurance of Performance. In addition to any other remedies available to KIB pursuant to this Contract or any other applicable laws, it may at its sole discretion demand from that Contractor provide reasonable assurances that it will fully satisfy any of its Performance Obligations, and that such assurances be provided by a specified date, in any of the following instances: a. Labor Unrest. Contractor is the subject of, or is otherwise affected by, any labor unrest, including work stoppage or slowdown, sick-out, picketing, lock- out, or other concerted job action, which continues in excess of six (6) days. b. Insolvency. KIB reasonably determines that Contractor is unable to regularly pay its debts as they become due, as demonstrated by Contractor's failure to pay: (1) Any tipping fee(s) at any Solid Waste Management Facility; (2) Any insurance deductibles or self-insured retention; (3) Any employee's wages; and, (4) Any other bill, such that it becomes delinquent for a period of more than sixty 601 days. c. Monetary Judgments, Penalties, or Fees- Contractor is the subject of fines, penalties, or civil or criminal judgments or orders entered by any court, federal or State agency, or Regulatory Authority, which are or are estimated to be in excess of the past three (3) months of Contractor Service Fees collected by Contractor. SECTION 14: CHANGES IN SCOPE OF CONTRACT OBLIGATIONS 14.01 Changes to Performance Obligations. Residential and Commercial Solid Waste Collection Contract FY2019-25 Page 54 of 99 Page 58 of 329 Discussion Of Contract No. FY2019-25B, Amendment #2, Residential And Com... AGENDA ITEM #2.a. 8/30/2024 Version DRAFT a. Upon Request by KIB. KIB may request that Contractor implement a change of its Performance Obligations under this Contract. Unless otherwise directed by KIB, Contractor shall submit its proposal within ten (10) KIB Business Days. KIB may withdraw its request at any time, for any reason. b. Upon Contractor's Request. Contractor may propose a change to its Performance Obligations under this Contract by submitting a Proposal to KIB, which shall conform with the requirements of Section 14.02. 14.02 Proposal Requirements. a. Contents. In its proposal, Contractor will include such supporting documentation as KIB deems necessary, and must describe its detailed plan for implementing the requested or proposed changes, and such description shall include the following: (1) A task list and time -line implementation schedule; (2) Goods or Services, including any Subcontractor, necessary to implement the change; and, (3) Any change in Contractor Service Fee and cost substantiation therefore, including Contractor's changes in Direct Costs, taking into account both incremental Direct Costs and savings offsets, such as any: (i) Vehicle modifications; (ii) Addition of Receptacles, Vehicles, or routes; (iii) Shortening or extension of routetime; (iv) Changes to personnel; and, (v) Increases in transportation distance or time to a Solid Waste Management Facility. b. Contractor's Proposal Deemed an Offer. Contractor's proposal will be deemed Contractor's offer to KIB to implement the directed or proposed change. Contractor's proposal will remain binding for at least thirty (30) days from the date that it has been submitted to KIB. c. Review by KIB. (1) Response/Comments. Within thirty (30) KIB Business Days of receiving Contractor's proposal, KIB may review, approve, or disapprove the proposal, or propose amendments to it. If KIB does not respond within that time, its approval will be deemed denied. If Contractor's proposal includes a request for change in the Contractor Service Fee that must be approved by the Assembly, KIB may review, approve, or disapprove the proposal within forty-five (45) days. (2) Acceptance of Comments. Contractor will accept or reject any proposed amendments within fifteen (15) KIB Business Days of receiving them. If Contractor accepts the amendments, KIB will prepare a formal Residential and Commercial Solid Waste Collection Contract FY2019-25 Pane 55 of 99 Page 59 of 329 Discussion Of Contract No. FY2019-25B, Amendment #2, Residential And Com... AGENDA ITEM #2.a. 8/30/2024 Version DRAFT amendment to this Contract that will implement the proposal (3) Resection of Comments J Negotiations. If Contractor rejects KIB's comments, the Parties will negotiate in good faith for a period of at least fifteen (15) KIB Business Days following Contractor's receipt of KIB comments. SECTION 15: BREACH OF AGREEMENT, DAMAGES, AND DEFAULT 15.01 Liquidated Damages. a. Acknowledgements. The Parties hereby acknowledge that: (1) KIB has incurred considerable time and expense negotiating this Contract to secure an improved level of Collection and Recycling service quality, increased Diversion and increased Customer satisfaction. Therefore, consistent and reliable Contract Services are of utmost importance to KIB and Customers. (2) In awarding this Contract to Contractor, KIB considered and relied on Contractor's municipal references, experience, qualifications, and reputation as to service quality, and Contractor's Breach represents a loss of bargain to KIB. (3) Quantified standards of performance are necessary and appropriate to ensure consistent and reliable Contract Service, and if Contractor fails to meet Performance Obligations, KIB will suffer damages in subjective ways and in varying degrees of intensity that are incapable of measurement in precise monetary terms. The Imposition of liquidated damages is not a penalty but is instead recognition of the difficulty in ascertaining those damages that may reasonably result from Contractor's breach of its Performance Obligations. (4) Termination of this Contract for Default and other remedies provided in this Contract are, at best, a means of future correction and not remedies that make KIB whole for past Breaches. b. Non -Waiver. KIB's assessment of Liquidated Damages for Contractor's breaches does not preclude KIB from enforcing the KIB Code in the event that such breaches constitute Violations. c. Procedure. (1) Notice of Intent to Assess Liquidated Damages. Before KIB may assess Liquidated Damages pursuant to this Section, for each category of violation (that is, for each of the categories listed in Exhibit B), KIB shall give Contractor written notice of Contractor's violation of the performance standard and of KIB's intent to assess Liquidated Damages for any future violation of the same performance standard. The purpose of this provision is to give Contractor notice that KIB considers Contractor to have violated a performance standard, and that KIB will assess Liquidated Damages if such violations are repeated. Residential and Commercial Solid Waste Collection Contract FY2019-25 Page 56 of 99 Page 60 of 329 Discussion Of Contract No. FY2019-25B, Amendment #2, Residential And Com... AGENDA ITEM #2.a. 8/30/2024 Version DRAFT (2) Procedure for Review of Liquidated Damages. KIB may assess Liquidated Damages pursuant to this Section monthly. At the end of each month during the term of this Agreement, KIB shall issue a written notice to Contractor ("Notice of Assessment") ofthe Liquidated Damages assessed and the basis for each assessment. The assessment shall become final unless, within ten (10) calendar days of the date of the notice of assessment, Contractor provides a written request for a meeting with the to present evidence that the assessment should not be made. KIB shall schedule a meeting with Contractor as soon as reasonably possible after timely receipt of Contractor's request. KIB shall review Contractor's evidence and render a decision sustaining or reversing the Liquidated Damages as soon as reasonably possible after the meeting. Written notice of the decision shall be provided to Contractor. In the event Contractor does not submit a written request for a meeting within ten (10) calendar days of the date of the Notice of Assessment, KIB determination shall be final and KIB may assess the Liquidated Damages, unless KIB waives this requirement. Liquidated damages shall be assessed according to the schedule set forth in Exhibit B. 15.02 Compensatory Damages. If Contractor fails to deliver any type of Solid Waste to a facility approved by KIB (such as a recyclables processing facility in connection with any Recyclables collection program that may be established), then in addition to assessing Liquidated Damages, KIB may in its sole discretion assess the following Compensatory Damages, and Contractor will pay KIB the following Compensatory Damages: KIB's Reimbursement Costs for monitoring Contractor's compliance with its delivery Performance Obligations, including the assignment of KIB personnel to follow Collection Vehicles on Collection routes; and a. KIB's Reimbursement Cost for enforcing or securing specific performance of Contractor's delivery obligation. 15.03 Defaults. The following acts or omissions by Contractor shall constitute a Default of this Agreement. a. Contract Service Defaults. (1) Uncured Breach. Any breach of this Agreement shall be deemed to remain uncured if: (i) KIB notifies the Contractor that a Breach has occurred; and, (ii) The Contractor fails to correct that Breach within twenty (20) days of that Notice, unless KIB agrees in writing to extend the period for correction. (2) Repeated Breach. KIB determines that Contractor repeatedly or habitually Breaches its Obligations under this Contract. (3) Contract Service Failures. When not excused by a Contract Service Exception, the Contractor fails to Collect Refuse, either according to its Residential and Commercial Solid Waste Collection Contract FY2019-25 Page 57 of 99 Page 61 of 329 Discussion Of Contract No. FY2019-25B, Amendment #2, Residential And Com... AGENDA ITEM #2.a. 8/30/2024 Version DRAFT regular schedule or by appointment, in the following amounts: (i) 100or more missed pickups for more than seven (7) consecutive days. (ii) 500 or more missed pickups during any 12 -month period; or, (iii) At least 99.5% of pickups scheduled for a day, for more than ten (10) cumulative days. (4) Failure to Comply with Applicable Law. (i) Violations. A. Material. Contractor does not cure any material Violation of Applicable Law to the satisfaction of KIB or applicable Regulatory Authority within thirty 301 days of the notice, assessment, or determination of that Violation of Applicable Law. B. Repeated. In KIB's judgment, Contractor repeatedly receives a notice, assessment, or determination of the same or different Violation. (ii) Appeals. If Contractor is entitled to appeal and in good faith does appeal a notice, assessment, or determination of Violation of Applicable Law, no Default will be deemed to have occurred until a final decision adverse to Contractor has been entered by the applicable authority. (5) Criminal Activity. Contractor fails to comply with the requirements of Section 16.02 of this Contract. (6) Failure to Timely Pay Contractor Payment Obligation. Contractor fails to pay any Contractor Payment Obligation within fifteen (15) days ofthe date it is due and payable. (7) Charging in Excess of the Amounts Listed in Contractor Service Fee Schedule. Contractor charges any Customer more than the scheduled Customer Special Service Surcharge listed in the Service Schedule and does not reimburse the excess within thirty (30) days of Contractor's discovery thereof, KIB notice or Customer request. (8) Failure to allow KIB to perform Contract Services. Contractor fails to timely allow KIB to exercise any of KIB's rights in connection with performing Contract Services under Section 15.09. b. Performance Assurance Defaults. (1) Failure to Provide Adequate Assurances of Performance. Contractor fails to provide KIB with adequate Performance Assurance when requested. (2) Seizure and Attachment. Any Contract Service Asset is seized, attached, or levied upon (other than a pre -judgment attachment) so as to Residential and Commercial Solid Waste Collection Contract FY2019-25 Page 58 of 99 Page 62 of 329 Discussion Of Contract No. FY2019-25B, Amendment #2, Residential And Com... AGENDA ITEM #2.a. 8/30/2024 Version DRAFT substantially impair Contractor's ability to timely and fully perform Contract Services, and which cannot be released, bonded or otherwise lifted within forty-eight (48) hours, excepting weekends and Holidays. (3) Insolvency. Bankruptcy. and Liquidation. It shall constitute a Default of this Agreement if any of the following events occur, or the Contractor takes any actions in furtherance of such events: (i) Contractor files a voluntary claim for debt relief under any applicable bankruptcy, insolvency, debtor relief, or other similar law now or hereafter in effect, unless Contractor retains full control of Contract Service Assets throughout the pendency ofthat claim; (ii) Contractor consents to the appointment of or taking of possession by a receiver, liquidator, assignee (other than as a part of a transfer of Contract Service Assets no longer used to provide Contract Services or backup Contract Services), trustee (other than as security of an obligation under a deed of trust), custodian, sequestration, administrator (or similar official) of Contractor for any part of Contractor's operating assets or any substantial part of Contractor's property; (iii) Contractor makes any general assignment for the benefit of Contractor's creditors; (iv) Contractor fails generally to pay Contractor's debts as they become due; (v) A court having jurisdiction enters a decree or order for relief in respect of this Contract, in any involuntary case brought under any bankruptcy, insolvency, debtor relief, or similar law now or hereafter in effect, or (vi) Contractor consents to orfails to oppose any similar proceeding; or, (vii) Any court having jurisdiction enters a decree or order appointing a receiver, liquidator, assignee, custodian, trustee, sequestrator, administrator (or similar official) of Contractor or for any part of Contractor's operating equipment, assets, or orders the winding up or liquidation ofthe affairs of Contractor. (4) Default under Guaranty. The occurrence of any default under the Guaranty. (5) Transfer. Contractor makes a Transfer without KIB's consent, as required by Section 17. (6) Subcontract. Contractor engages a Subcontractor or enters into a Subcontract without KIB's consent, as required by Section 18.10, and does not terminate that Subcontract within fifteen (15) KIB Business Days of KIB's Notice. c. False Representations and Breach of Warranties. (1) Under this Contract. Residential and Commercial Solid Waste Collection Contract FY2019-25 Page 59 of 99 Page 63 of 329 Discussion Of Contract No. FY2019-25B, Amendment #2, Residential And Com... AGENDA ITEM #2.a. 8/30/2024 Version DRAFT (i) Contractor makes a representation or certification in or under this Contract, including Section 2, which Contractor knows, or in the course of diligently conducting business and providing Contract Services should have known, is untrue on the date Contractor made it. (ii) Contractor breaches a warranty under this Contract (2) As Inducement to Enter into This Contract. Contractor makes a representation or fails to make a disclosure, whether within this Contract or otherwise, to KIB in connection with or as a material inducement to entering into this Contract or any future amendment to this Contract, which representation or failed disclosure is false or misleading in any material respect when made. 15.04 Excused Breaches and Defaults. a. Uncontrollable Circumstances. If the Contractor is unable to perform or is delayed in its performance of any of its obligations under this Agreement by reason of any Uncontrollable Circumstances, or force majeure, such inability of delay shall be excused at any time during which compliance is prevented by such event and during such period thereafter as may be reasonably necessary for the Contractor to correct the qualifying event's adverse effects. (1) Notice to KIB. To be entitled to the benefit of this provision, the Contractor must give prompt written notice to KIB, which specifies in detail: (i) The nature and scope of the Uncontrollable Circumstance; (ii) Its expected duration; (iii) The ways in which the event will adversely affect the Contractor's performance of Contract Services; and, (iv) The steps that the Contractor is taking to mitigate such adverse effects. b. KIB's Rights. (1)Perform Contract Services. Notwithstanding that a Breach due to Uncontrollable Circumstances does not constitute a Default, after the continuance of the Breach for forty-eight (48) hours, in its sole discretion, KIB may nevertheless perform (or cause to be performed) Contract Services in the Contract Service Area itself under Section 15.09. (2) Exercise Other Remedies. After the continuance of any Breach for thirty (30) days, KIB may, in its sole discretion, exercise any other remedy under this Contract, including suspending or terminating this Contract under Section 16.01. Residential and Commercial Solid Waste Collection Contract FY2019-25 Page 60 of 99 Page 64 of 329 Discussion Of Contract No. FY2019-25B, Amendment #2, Residential And Com... AGENDA ITEM #2.a. 8/30/2024 Version DRAFT 15.05 Remedies Upon Breach. a. As Provided by Law. Either Party may exercise any and all remedies available under law or equity to remedy the other Party's breach of this Contract. A Party's exercise of any one remedy, including KIB' s assessing Liquidated Damages or Compensatory Damages, is not an election of remedies but is cumulative with any other available remedies. b. KIB's Additional Remedies. In addition to exercising any remedy available at law or equity, upon occurrence of a Default, KIB may exercise any of the following additional remedies: (1) Termination. Terminate this Contract or any portion of Performance Obligations, pursuant to Section 16.01(a); (2) Suspension. Suspend this Contract, pursuant to Section 16.01(b); (3) Perform Contract Services. KIB may itself perform Contractor's Performance Obligations, or cause them to be performed by another party, pursuant to Section 15.09; (4) Damages. Assess Liquidated or Compensatory Damages against the Contractor: and, (5) Exercise Financial Assurances. Draw on the Letter of Credit, demand payment under the Guaranty or any Indemnity, or submit any claim under Insurance. (6) Injunctive Relief. Contractor acknowledges that KIB may be also be entitled to injunctive relief in those instances where an award of damages to KIB for the Contractor's Breach or Default may be inadequate for reasons including thefollowing: (i) Public Health and Safety. The urgency of timely, continuous and high- quality Contract Services, including Collection, Recycling, transportation and/or transfer and Disposal of putrescible solid wastes that constitute a threat to public health; (ii) Procurement Time and Expense. The long time and significant investment of money and personnel (including KIB' s staff, elected officials and KIB Counsel, as well as procurement counsel and consultants) necessary to: A. Develop a scope of Contract Services and Performance Obligations acceptable to KIB; B. Draft this Contract and related procurement documents; C. Solicit comments on this Contract and procurement documents from KIB (and KIB Counsel) and Persons interested in proposing to provide Contract Services Residential and Commercial Solid Waste Collection Contract FY2019-25 Page 61 of 99 Page 65 of 329 Discussion Of Contract No. FY2019-25B, Amendment #2, Residential And Com... AGENDA ITEM #2.a. 8/30/2024 Version DRAFT D. Meet with those potential proposers to discuss their comments and answer their questions about this Contract and the procurement; E. Finalize this Contract and procurement documents; F. Solicit proposals for Contract Services; G. Review and evaluate those proposals and seek clarifications of those proposals. H. Award this Contract under KIB'sApplicable Law; I. Finalize execution of this Contract, including reviewing commenting on and approving (if required) Contractor Documentation; and, J. Conform KIB Code to the automated Refuse Collection programs. (iii) Reliance on Contractor. KI B's reliance on Contractor's meeting evaluative criteria on which award of this Contract was based, such as the following: A. Solidwaste management experience; B. KIB references; C. Qualifications ofkey personnel; D. Environmental programs and proposed E. Unpermitted Waste Screening Protocol; F. Litigation history; G. Contractor's proposed transition, H. Customer education, diversion and other plans; I. Acceptance of terms of this Contract; and, J. Diversion record. (iv) Re -Procurement Time and Expense. The length and significant investment of time and money described in item (ii) to develop alternative MSW Management Services comparable to Contract Services for the price provided under this Contract, and to negotiate new agreements, therefore. c. Recovery of Unpaid Contractor Payment Obligations. KIB may collect Contractor Payment Obligations due and owing by Contractor to KIB by any or all of the following means: (1) Demanding payment from Contractor or Guarantor; (2) Drawing on the Letter of Credit; (3) Submitting claims as an additional insured under Insurance policies or under contractual liability provisions of insurance policies; and, (4) Directing Contractor to offset Contractor Payment Obligation from Contractor Service Fees that Contractor received from Customers to remit them to KIB. d. In the event of default by either party, the non -defaulting party shall provide notice of the default with specificity. No remedies for such default shall accrue Residential and Commercial Solid Waste Collection Contract FY2019-25 Page 62 of 99 Page 66 of 329 Discussion Of Contract No. FY2019-25B, Amendment #2, Residential And Com... AGENDA ITEM #2.a. 8/30/2024 Version DRAFT unless and until the defaulting party shall have failed to cure said default within ten 10j_days of receipt of such written notice of default, save and except situations that may impact public health or safety, the environment, or may be a violation of law or any provision in Section 15.03 which gives greater than ten 10)_days to cure such particularly identified event of default. 15.06 Additional Compensatory Damages. Additional Compensatory Damages. Without limiting KIB's right to seek Compensatory Damages, pursuant to either this Contract or otherwise available at law, KIB may seek the following additional Compensatory Damages: a. Amounts equal to any Contractor Payment Obligations or other amounts that Contractor has previously paid to KIB but are subsequently recovered from KIB by atrustee in bankruptcy aspreferential payments orotherwise; b. If KIB terminates this Contract for Default, KIB' s Reimbursement Costs to provide or re -procure MSW Management Services; and, c. If KIB terminates this Contract for Default, KIB's projected Direct Costs of replacing MSW Management Services in excess of Contractor Service Compensation for the balance of the Term remaining if this Contract had not been terminated, as based on service fees under replacement agreements for those MSW Management Services. THIS SECTION WILL SURVIVE THE TERMINATION OF THIS CONTRACT FOR 180 DAYS OR OTHER PREFERENCE PERIOD PROVIDED UNDER APPLICABLE LAW WITH RESPECT TO BANKRUPTCY OR INSOLVENCY. KIB may draw upon the Letter of Credit, Guaranty or any other available Performance Assurance to pay compensatory damages. 15.07 Waivers. a. Waiver of Breach. No waiver of any Breach or Default constitutes a waiver of any other Breach or Default. Failure of KIB to enforce any provision of this Contract may not be construed as a waiver of KIB's enforcement rights. KIB's subsequent acceptance of any damages or other money paid by Contractor may not be deemed to be a waiver by KIB of any pre-existing or concurrent Breach or Default. b. Contractor Waiver of Certain Defenses. Contractor acknowledges that it is solely responsible for providing Contract Services and by this Contract irrevocably and unconditional waives defenses to the payment and performance of its obligations under this Contract based on failure of consideration; contract of adhesion; impossibility or impracticability of performance; commercial frustration of purpose; or the existence, non- existence, occurrence or non-occurrence of any foreseen or unforeseen fact, event or contingency that may be a basic assumption of Contractor with regard to any provision of this Contract; provided that Contractor does not by this Residential and Commercial Solid Waste Collection Contract FY2019-25 Page 63 of 99 Page 67 of 329 Discussion Of Contract No. FY2019-25B, Amendment #2, Residential And Com... AGENDA ITEM #2.a. 8/30/2024 Version DRAFT Contract waive any defenses under this Contract of Uncontrollable Circumstances. 15.08 Costs. a. Non -Prevailing Party. The non -prevailing Party in any dispute involving this Contract will pay the prevailing Party's Reimbursement Costs, including standard and reasonable attorney's fees. b. KIB's Enforcement Costs. Contractor will reimburse KIB promptly upon request for either or both ofthe following KIB's Reimbursement Costs: (1) Costs resulting from KI B's investigation of any alleged Breach; or, (2) Costs incurred by KIB as a consequence of Contractor's Breach. 15.09 KIB Right to Perform. a. Events. KIB may perform, or provide for the performance of, any or all Performance Obligations if KIB reasonably determines that: (1) Contractor, due to Uncontrollable Circumstances or for any reason whatsoever, fails, refuses or is unable to Collect any Solid Waste and operate the Recyclables Processing Facility for a period of forty-eight (48) hours after the Collection or acceptance was required under this Contract, and KIB determines in its sole discretion that there is a danger to the public health, safety or welfare; or, (2) KIB suspends or terminates this Contract. b. Continuation. KIB has no obligation to continue performing or providing for the performance of any or all Performance Obligations and may at any time, in its sole discretion, cease to provide any or all Performance Obligation. However, KIB' s right to perform or provide for the performance of any or all Performance Obligations will continue until either: (1) Contractor demonstrates to KIB's satisfaction that Contractor is ready, willing, and able to resume timely and full performance of all Performance Obligations; or, (2) KIB is capable of making alternative arrangements for providing MSW Management Services and/or Recycling service, in itsjudgment comparable to Contract Services in scope and price, which may include contracting with another service provider. c. Notice. KIB may give Contractor 24-hour oral notice that KIB is exercising any or all of KIB's rights under this Section. The oral notice will be effective immediately, but to remain effective, within another 24 hours KIB must confirm that oral notice with a written Notice. d. KIB Purchase or Lease of Service Assets. Should KIB elect to exercise its authority to perform the Contract Services as provided in this Section 15.09, Contractor shall enter into good faith negotiations for the sale or lease to KIB Residential and Commercial Solid Waste Collection Contract FY2019-25 Page 64 of 99 Page 68 of 329 Discussion Of Contract No. FY2019-25B, Amendment #2, Residential And Com... AGENDA ITEM #2.a. 8/30/2024 Version DRAFT of all Service Assets reasonably necessary to do so, consistent with Section 3.03. SECTION 16: SUSPENSION OR TERMINATION OF CONTRACT 16.01 KIB's Right to Suspend orTerminate. a. Contractor is willing to agree to commercially standard suspension and termination provisions tied to the matters of default addressed in Section 15, but only after the right to cure period in the 16.01-f. b. Termination Events. KIB may, in its sole discretion, terminate this Contract should any ofthe following Termination Events occur: (1) Contractor's Default; (2) Contractor's Breach due to Uncontrollable Circumstances, which remains uncured for a period of thirty 301days; (3) Any Contract Provision, as defined in Section 22, is ruled unconstitutional, illegal, invalid, non-binding or unenforceable by any court of competent jurisdiction, regardless ofwhether it is deemed severable; or, (4) Any Guarantor transfers the Guaranty without the consent required by the Guaranty, and on or before fifteen 151 days after the transfer, the Guarantor does not provide KIB with a substitute Guarantor or alternative financial credit support satisfactory to KIB. c. Suspension Events. Upon the occurrence of any Termination Event, KIB may, in lieu of Termination, and in its sole discretion, suspend this Contract, in whole in or in part, for no longer than thirty 301 days. During the suspension period Contractor will have the opportunity to demonstrate to the satisfaction of KIB that Contractor can once again fully perform Contract Services. If Contractor so demonstrates to satisfaction of KIB in its sole discretion, KIB 's right to suspend or terminate this Contract will cease and Contractor may resume providing Contract Services. If Contractor does not so demonstrate, KIB may terminate this Contract and exercise its additional rights and remedies. d. Notice to Contractor. KIB will give Contractor a Notice of Termination or Suspension effective at the following times: (1) Immediately or upon other period stated by KIB with respect to the following Defaults, more fully described in Section 15.03: (i) Failure of Contractor to provide adequate Performance Assurances; or, (ii) Insolvency, bankruptcy, liquidation, to the extent permitted by Applicable Law (Insolvency, Bankruptcy, Liquidation); (2) Upon Contractor's receipt of Notice with respect to any other Default, unless KIB specifies an alternative date in the Notice; or, (3) Such other date as KIB may specify in the Notice. Residential and Commercial Solid Waste Collection Contract FY2019-25 Page 65 of 99 Page 69 of 329 Discussion Of Contract No. FY2019-25B, Amendment #2, Residential And Com... AGENDA ITEM #2.a. 8/30/2024 Version DRAFT e. Reduction in Fee Upon Partial Suspension. If KIB suspends a portion of this Contract or the Contractor's Performance Obligations, Contractor will continue to fully perform its remaining Performance Obligations and the Contractor Service Fee will be adjusted to reflect reductions in Performance Obligations. f. Contractor's Right to Cure. Should KIB at any time, contend that Contractor has breached any material provision of this Agreement, KIB shall immediately notify Contractor in writing of KIB's contention. Contractor shall have a reasonable time to cure any such alleged breach, which in all events shall not be less than thirty (30) calendar days, or any such longer period as reasonably needed to cure said breach, provided Contractor initiated curing the breach within such thirty (10) calendar day period unless agreed to in writing by the borough, and continues to diligently pursue such breach. If Contractor fails to cure the breach within such time, KIB may terminate this Agreement and/or pursue any other remedy provided for in this Agreement, at law or in equity. Classes of breach that are not subject to the "notice and cure" requirements - especially breaches resulting from the violation of laws, including laws governing life and safety. Contractor shall only have a right to cure if it has not committed the same breach 3 times within the preceding 12months. 16.02 Criminal Activity. a. Notice. Contractor will immediately give Notice to KI B of either of the following with respect to Contractor or any Contract Manager (except for the Contract Manager in a Position of influence): (1) Conviction of a Criminal Activity ("Conviction") or, (2) Plea of guilty or nolo contendere to a Criminal Activity ("Plea"). Contractor will promptly give Notice to KIB of any of those convictions or pleas with respect to the Contractor Manager in a Position of Influence. b. Cure. Upon the occurrence of any conviction or plea defined in Subsection a, Contractor immediately will do or cause to be done both ofthe following: (1) Terminate from employment anyone in a Position of Influence or remove from office anyone in a Position of Influence, unless otherwise directed or ordered by a court or Regulatory Authority of competent jurisdiction and/or authority, and unless termination would subject Contractor, an Affiliate or any of its Contract Managers to substantial liability for breach of any labor agreement entered into before the Contract Commencement Date; and, (2) Refrain from employing or appointing that individual or individuals responsible for the Criminal Activity from any other Position of influence. Residential and Commercial Solid Waste Collection Contract FY2019-25 Page 66 of 99 Page 70 of 329 Discussion Of Contract No. FY2019-25B, Amendment #2, Residential And Com... AGENDA ITEM #2.a. 8/30/2024 Version DRAFT c. KIB remedies. In the event that Contractor or any Affiliate fails to effectuate the cure described in Subsection b, or the Criminal Activity is related to this Contract or occurs within the KIB's municipal boundaries, KIB may either suspend or terminate this Contract as it deems proper. d. Limitations on Contractor Manager. Contractor shall not permit any Person to serve as Contractor Manager who has previously been convicted of a Criminal Activity or plead "guilty" or "nolo contendere" to any Criminal Activity. SECTION 17: TRANSFER OF CONTRACT. 17.01 Transfer by Contractor. a. Acknowledgment. Contractor acknowledges that Contractor submitted evidence to KIB with respect to Contractor's experience, expertise, and qualifications to provide Contract Services, and that Contractor's experience, expertise and qualifications were material considerations of KIB in entering into this Contract with Contractor. b. KIB Consent Required. Contractor will not Transfer, in whole or in part, voluntarily or involuntarily, this Contract, the Guaranty, or any rights or duties in this Contract or under the Guaranty, without KIB's Assembly's prior, written consent, which consent shall not be unreasonably withheld, conditioned, or delayed. Contractor may not circumvent KIB's consent rights by securing Goods or Services from a Subcontractor. Contractor acknowledges that in its submitted proposal to provide Contract Services and enter into this Agreement it described the experience, qualifications, and operations not only of Contractor itself, but of the following companies that are wholly owned by Contractor as of the Contract Commencement Date (together, "Contractor's Operations"). Furthermore, in its proposal Contractor did not take an exception to its Performance Obligation to provide the Guaranty. Therefore, in lieu of providing the Guaranty, Contractor will not Transfer in whole or in part, voluntarily or involuntarily any of Contractor's Operations without KIB consent, given in KIB's sole discretion. For purposes of this Performance Obligation and KIB's rights, the definition of "Transfer", the "Contractor" is deemed to include "Contractor's Operations. c. Contractor request Without obligating KIB to give consent, Contactor will demonstrate to KIB's satisfaction that the proposed transferee has the operational and financial ability to satisfy Performance Obligations. KIB is not obligated to consider any proposed Transfer by Contractor if Contractor is in Breach at any time during KIB's consideration. d. Payment of KIB's Transfer Costs. (1) Transfer Deposit. Contractor must make any request for KIB's consent to a Transfer in the manner prescribed by KIB. Contractor must pay KIB the Transfer Deposit before KIB will consider Contractor's request. "Transfer Deposit" means lesser of the following refundable amounts: $1,500 or, Residential and Commercial Solid Waste Collection Contract FY2019-25 Page 67 of 99 Page 71 of 329 Discussion Of Contract No. FY2019-25B, Amendment #2, Residential And Com... AGENDA ITEM #2.a. 8/30/2024 Version DRAFT (ii) KIB's anticipated Transfer Costs. (2) Additional Transfer Costs. Within thirty 301 days of KIB's request, Contractor will further pay KIB' s additional Transfer Costs in excess of the Transfer Deposit, whether or not that KIB approves the Transfer. "Transfer Costs" means such KIB Reimbursement Costs resulting from its: (i) Consideration and review of Contractor's request for Transfer; (ii) Investigation regarding the suitability of the proposed transferee; (iii) Determination of whether or not to consent; and, (iv) Preparation of those documents necessary to effectuate the Transfer. (3) KIB's Reimbursement Costs of Enforcement. Within thirty 301 days of KIB's request, Contractor will pay KIB's Reimbursement Costs for fees and investigation costs as KIB deems necessary to enjoin the Transfer or to otherwise enforce this Section. e. Novation. If KIB consents to Transfer of this Contract, upon request of the transferee, KIB will execute a novation under which the Person which is the transferee Contractor assumes all the rights and Performance Obligations of the transferor Contractor. SECTION 18: THE PARTIES 18.01 Independent Contractor. The Parties agree and the Contractor acknowledges as follows: a. Contractor is an independent entity and contractor engaged by KIB and not KIB's Related Party or a party to any joint venture with KIB. b. No employee or agent of Contractor is deemed to be KIB's Related Party. c. Contractor will have the exclusive control over the manner and means of performing Contract Services and over all Persons performing Contract Services. d. Contractor is solely responsible for the acts and omissions of Contractor's Related Parties, none of whom is deemed to be KIB's Related Party. e. Nothing in this Contract may be construed as creating an arrangement for handling Unpermitted Waste. f. Neither Contractor nor any of Contractor's Related Parties will obtain any rights to retirement benefits, workers' compensation benefits, or any other benefits that accrue to KIB employees and Contractor expressly waives any claim it may have or acquire to those benefits. g. Contractor bears the sole responsibility and liability for furnishing workers' compensation and all other benefits required by law to any individual for injuries arising from or connected with Contract Services. Residential and Commercial Solid Waste Collection Contract FY2019-25 Page 68 of 99 Page 72 of 329 Discussion Of Contract No. FY2019-25B, Amendment #2, Residential And Com... AGENDA ITEM #2.a. 8/30/2024 Version DRAFT 18.02 Parties in Interest Nothing in this Contract, whether expressed or implied, is intended to confer any rights on anyone other than the Parties and the Parties' respective representatives, successors and permitted assigns. Related Parties are third party beneficiaries of provisions in this Contract that reference them. 18.03 Binding on Successors. The provisions of this Contract will inure to the benefit of and be binding on the successors and permitted assigns of the Parties. 18.04 Further Assurances. Each Party agrees to execute and deliver any instruments and to perform any acts as may be necessary or reasonably requested by the other to give full effect to this Contract, including Contractor Documentation. Contractor will complete Contractor Documentation satisfactory to KIB by the Contract Commencement Date. 18.05 Actions of KIB in Its Governmental Capacity. Nothing in this Contract may be interpreted as limiting the rights and obligations of KIB in its governmental or regulatory capacity. 18.06 Contractor's Obligations Performed at Its Sole Expense. Contractor will perform Contract Services solely for the compensation expressly provided for in this Contract. 18.07 Parties Representatives. a. KIB (1) Identification. The KIB Representative is the Manager or his or her designee, as may be amended upon Notice to Contractor by KIB in KIB' s sole discretion. (2) Obligation. By authorizing the execution of this Contract, KIB delegates to the KIB Representative the authority to exercise KIB's rights, remedies and options under this Contract and administer this Contract, except with respect to the following, which must be approved by the KIB Governing Body: (i) Extending the Term for an additional year or more; (ii) Suspending or terminating this Contract; (iii) Approving or disapproving Transfer ofthisContract; (iv) Amending this Contract, including amendments to the Contractor Service Fee due to changes in operations pursuant to Section 11.03e, but not to annual adjustments pursuant to Section 11.03b; (v) Indemnities; and, (vi) Exercising any delegation of authority contrary to Applicable Law. b. Contractor Representative. The Contractor Representative is named in Contractor Documentation. The Contractor Representative must have at least Residential and Commercial Solid Waste Collection Contract FY2019-25 Page 69 of 99 Page 73 of 329 Discussion Of Contract No. FY2019-25B, Amendment #2, Residential And Com... AGENDA ITEM #2.a. 8/30/2024 Version DRAFT 5 years of experience in Solid Waste collection services before being named Contractor Representative. The Contractor Representative is authorized to act on behalf of Contractor in the satisfaction of all Performance Obligations and exercise of Contractor's rights and options under this Contract. 18.08 Due Diligence. Contractor acknowledges that MSW Management Services and Recycling Services, including Contract Services, are highly regulated under Applicable Law, and that waste management is a public health and safety concern. Contractor agrees that it will exercise due diligence in performing Contract Services. 18.09 No Use of KIB Name. Contractor will not conduct any business related to its Performance Obligations under this Contract using any name referencing KIB, or otherwise applies association with or ownership by KIB. 18.10 Subcontractors. a. Subcontracts exceeding $50,000. Contractor will not engage any Subcontractor in an amount exceeding $50,000 for any individual Subcontractor without KIB's prior approval of the Subcontract and Subcontractor. Any Subcontract entered into without KIB's prior approval is void. Contractor will identify approved Subcontractors in Contractor Documentation. b. Contractor Responsibility. Contractor is solely responsible for directing the work of Subcontractors and paying Subcontractors' compensation. c. Removal. KIB may require Contractor to remove any approved Subcontractor for any ofthe following reasons: (1) Its failure to provide Contract Services; (2) Its non-compliance with Applicable Law, or (3) Its engagement in conduct that, in KIB's judgment, is abusive, rude, or unsafe. d. Reference to Subcontractors. Specific reference to Subcontractors under this Contract (such as with respect to compliance with Applicable Law and meeting Insurance requirements) does not imply that lack of specific reference to Subcontractors elsewhere under this Contract Exempts Subcontractors from complying with this Contract. SECTION 19: AMENDMENTS 19.01 Amendments. a. Means of Amendment. Amendments to Contract rights, remedies, and options, unless delegated to the KIB Representative, will be effective upon completion of the following actions: (1) Authorization and direction of KIB Governing Body; Residential and Commercial Solid Waste Collection Contract FY2019-25 Page 70 of 99 Page 74 of 329 Discussion Of Contract No. FY2019-25B, Amendment #2, Residential And Com... AGENDA ITEM #2.a. 8/30/2024 Version DRAFT (2) Consent of the Contractor; and, (3) Due execution by the Parties of a written amendment to this Contract reflecting those changes. b. Consent by Representatives. All other Amendments to this Contract will be effective upon completion of thefollowing: (1) Consent of the KIB Representative, except for Contractor's amendments to Contractor Documentation that do not require KIB consent; (2) Consent of the Contractor Representative, except for amendments to this Contract that do notrequire Contractor consent; and, (3) Due execution by the Parties of text reflecting those changes. Examples of those amendments include thefollowing: (i) Amendments not listed in Subsection (a.); (ii) Contractor Documentation; and, (iii) Exhibits or Attachments to this Contract (except with respect to Contractor Service Fee other than annual adjustments). c. Due execution. For purposes of this Section, "due execution" of amendments to the text ofthis Contract means that the Parties' authorized representatives: (1) Witness and sign the written amendment in the form provided on the signature page of this Contract; and, (2) Warrant that they are authorized to execute the amendment. SECTION 20: NOTICES, CONSENTS, AND APPROVALS 20.00 Notices. Notices must be given at the addresses provided in Contractor Documentation attached to this Contract, as follows: a. ByEmail orfacsimile, promptly followed by personal ormailed delivery; b. By personal delivery to the Contractor Representative or KIB Representative, as the case may be; c. By deposit in the United States mail first class postage prepaid (certified mail, return receipt requested); or, d. By commercial delivery service providing delivery verification. Notice by KIB to Contractor of a missed pick-up or a Customer problem or complaint may be given to Contractor orally by telephone to Contractor Representative or other Contractor personnel responsible for taking complaints from KIB or the public. Parties may change their address upon Notice to the other Party. Residential and Commercial Solid Waste Collection Contract FY2019-25 Pane 71 of 99 Page 75 of 329 Discussion Of Contract No. FY2019-25B, Amendment #2, Residential And Com... AGENDA ITEM #2.a. 8/30/2024 Version DRAFT 20.01 Writing Requirements. All Notices, reports, demands, requests, directions, selections, option exercises, orders, proposals, reviews, comments, acknowledgments, approvals, agreements, consents, waivers, certifications, and other communications made under this Contract must be in writing, except the following: a. Oral communication is explicitly authorized; and, b. Communication with respect to routine Contract administration, such as submitting Records or Reports, correcting Reports or, discussing Customer complaints. 20.02 Exercise of Options. Parties will exercise any approval, disapproval, consent, acceptance, option, discretion, election, opinion or choice under this Contract, make a requirement under this Contract, or interpret this Contract ("Discretionary Action") in a manner that is reasonable. Recognizing the essential public health and safety protections this Contract serves, where this Contract specifically provides that the exercise of any Discretionary Action is in either Party's independent, sole, exclusive, or absolute discretion, control or judgment, the other Party will not question or challenge the other Party's exercise thereof. Parties will nevertheless exercise their rights and remedies in good faith as required by Applicable Law. Any mediator or court must find the Party's exercise to be reasonable. SECTION 21: INTEGRATIONS. GOVERNING LAW, AND VENUE 21.01 Integrations. This Contract contains the entire agreement between the Parties with respect to their rights and obligations under this Contract. This Contract completely and fully supersedes all prior understandings and agreements between the Parties with respect to their respective rights and obligations, including those contained in each ofthefollowing: a. Requests for proposals; b. Proposals; c. Memoranda; d. Correspondence; e. Telephone calls; f. Field trips; g. Interviews; h. Negotiations; and, i. Meetings ofthe KIB Assembly, and other commission, committees, and boards. 21.02 Governing Law. The Parties' respective rights and obligations pursuant to this Contract shall be determined according to, and governed by, the laws of the State of Alaska Residential and Commercial Solid Waste Collection Contract FY2019-25 Page 72 of 99 Page 76 of 329 Discussion Of Contract No. FY2019-25B, Amendment #2, Residential And Com... AGENDA ITEM #2.a. 8/30/2024 Version DRAFT 21.03 Severability. a. Generally. Should any court of competent jurisdiction hold that any clause, sentence, provision, section, subsection, exhibit, or attachment of this Contract is unconstitutional, illegal, invalid, non-binding, or otherwise unenforceable, such determination shall not affect any of the remaining provisions of this Contract. This Contract will be construed and enforced as if the Contract Provision did not exist, and the Parties will as a result: (1) Promptly meet and negotiate a substitute for the Contract Provision and any related amendments, deletions, or additions to other provisions of this Contract which together effect the Parties' original intent to the greatest extent allowable under Applicable Law; and, (2) If necessary or desirable to accomplish preceding item (1), apply to the court that declared said invalidity for a judicial construction of the substituted Contract Provision and any amendments, deletions, or additions to this Contract. Within ten 101 days of any KIB's request, Contractor will pay KIB half of the Direct Costs of that application. However, if any Contract Provision with respect to KIB direction to a Solid Waste Management Facility is ruled unconstitutional, illegal, invalid, non- binding or unenforceable by any court of competent jurisdiction, then KIB in its sole discretion may either. (1) Sever that Contract Provision and construe and enforce this Contract under this Section; or, (2) Terminate this Contract. b. Contractor's Waiver of Certain Legal Challenges. Contractor agrees not to challenge the constitutionality, legality, validity, enforceability, or binding nature of either of the following provisions of this Contract: (1) Contractor's obligation to deliver Refuse to KIB Landfill; and, (2) Contractor's obligation to deliver any other type of Solid Waste (such as recyclables) to any other Solid Waste Management facility as directed by KIB. 21.04 New Contract This Contract is a new obligation between the Parties and is a novation, substitution, and replacement for any present or prior contracts or agreements between the Parties connected with or related to MSW Management Services. 21.05 Venue. Any civil action arising from this Contract shall be brought in the Superior Court, Third Judicial District, State of Alaska 21.06 Costs. The non -prevailing Party in any dispute involving this Contract shall pay the prevailing Party's reasonable Reimbursement Costs, including attorney's Residential and Commercial Solid Waste Collection Contract FY2019-25 Pane 73 of 99 Page 77 of 329 Discussion Of Contract No. FY2019-25B, Amendment #2, Residential And Com... AGENDA ITEM #2.a. 8/30/2024 Version DRAFT fees. SECTION 22: ADDITIONAL TERMS AND CONDITIONS 1. Notwithstanding anything herein to the contrary: (a) Contractor shall have no obligation to collect or transport any material which is or contains, or which Contractor reasonably believes to be or contain, radioactive, volatile, corrosive, highly flammable, explosive, biomedical, infectious, biohazardous, toxic or hazardous material as defined by applicable federal, state or local laws or regulations ("Excluded Waste"); (b) if Contractor finds what reasonably appears to be discarded Excluded Waste, Contractor shall promptly notify the KIB and the producer of the Excluded Waste, if the producer can be readily identified; and (c) title to and liability for any Excluded Waste shall remain with the producer of the Excluded Waste, even if Contractor inadvertently collects or disposes of such Excluded Waste. 2. Customers and the KIB must comply with any description of and/or procedures with respect to removal of contaminants or preparation of recyclable materials as reasonably provided by Contractor. If any customer or the KIB fails to do so, Contractor may decline to collect such materials without being in breach of the contract. Contractor shall not be responsible for and has not made any representation regarding the ultimate recycling of such recyclable materials by any third -party facilities. 3. Notwithstanding anything herein to the contrary, to the extent supplied by Contractor, in the event that a container becomes lost, unsightly, unsanitary, broken, or unserviceable because of the acts or omissions of a customer or the KIB (excluding normal wear and tear), the customer or KIB (as the case may be) will be charged for the resulting repairs or replacement and such amounts will be paid to Contractor upon demand. 4. Any equipment furnished hereunder by Contractor shall remain the property of Contractor; however, the customers and the KIB (as applicable) shall have care, custody and control of the equipment while at the service locations. Customers and the KIB shall not overload (by weight or volume), move, or alter the equipment, and shall use the equipment only for its proper and intended purpose. Customers and the KIB must provide unobstructed access to the equipment on the scheduled collection day. The word "equipment' as used in the contract shall mean all containers used for the storage of non- hazardous solid waste. 5. Except for the payment of amounts owed hereunder, neither party hereto shall be liable for its failure to perform or delay in its performance hereunder due to contingencies beyond its reasonable control including, but not limited to, strikes, riots, compliance with laws or governmental orders, inability to access a container, fires, inclement weather and acts of God, and such failure shall not constitute a breach under the contract. Residential and Commercial Solid Waste Collection Contract FY2019-25 Page 74 of 99 Page 78 of 329 Discussion Of Contract No. FY2019-25B, Amendment #2, Residential And Com... AGENDA ITEM #2.a. 8/30/2024 Version DRAFT SECTION 23: DEFINITIONS Account Holder means the owner of a premises, or the person or entity identified by the owner as being the responsible party for the unit(s) payment for the required solid waste collection services available to a residential or commercial customer. When the account holder is a person or entity other than the owner, they may be referred to as the "authorized account holder". Affiliate means a Person that, directly or indirectly, through one or more intermediaries, controls, or is controlled by, or is under common control with, Contractor. For the purpose of this definition, "control" has the meaning provided in Rule 144 of the Securities Act of 1993. Affiliate Parent means an Affiliate that, directly or indirectly, through one or more intermediaries, controls Contractor. Annual Report means the Report required under Section 10.03 in form and content satisfactory to KIB. Applicable Laws means any or all of the following enacted, adopted, promulgated, issued, ruled, ordered, determined or otherwise made by any Regulatory Authority that apply to or govern Contract Services or the performance of the Parties' obligations under this Contract: (1) Laws, statutes (2) Rrules, regulations (3) Gguidelines, (4) Permits, (5) Aactions, determinations, orders, or (6) Oetherrequirements, including Applicable Law concerning the following: (7) Hbealth, (8) Ssafety, (9) F€ire, (10) 1.1aborrelations, (11) Mrnitigation monitoring plans, (12) (12}Bbuilding codes, (13) Zzoning, (14) Nnon-discrimination, (15) Vehicles: such as: (i) Aair emissions (smog checks); tires; documentation through maintenance log or otherwise of a safety compliance report; Vehicle highway lighting, flashing and warning lights, clearance lights, and warning flags; registration; weight limits; cleaning; enclosure / water- tight beds; (ii) The appropriate class of drivers' licenses issued by the State Department of Motor Vehicles; (iii) Aany State laws relating to operating equipment construction, safety, and parking and identification, Residential and Commercial Solid Waste Collection Contract FY2019-25 Page 75 of 99 Page 79 of 329 Discussion Of Contract No. FY2019-25B, Amendment #2, Residential And Com... AGENDA ITEM #2.a. 8/30/2024 Version DRAFT (16) Carts: such as: a. Mmaintenance and placement of Carts; b. Pplacing Contractor's name and telephone number on Receptacle; (17) Labor: (i) Drug and alcohol testing; (ii) The Occupational Safety and Health Act_ (29 U.S.C. §651 et seq.), including the Solid Waste Disposal Facility Criteria promulgated by the U.S. EPA on October 9, 1991 (40 C.F.R., Parts 257 and 258); and corresponding State requirements; (iii) Ifmmigration Reform and Control Act of 1986 (PL.99-603); (18) Environmental Protection: (i) CERCLA; (ii) RCRA; (iii) Clean Air Act, (42 U.S.C. §1351 et seq., 42 U.S.C. §7401-7642) and Clean Water Act, and; (iv) Ccorresponding State requirements; (v) Emergency Planning and Community Right to Know Act. (42 U.S.C. §11001 etseq); (vi) Rregulations governing the recovery of ozone depleting refrigerants during the Disposal of air conditioning or refrigeration equipment, including 40 C.F.R. Part 82; (vii) Aany wash -down requirements for containers, trucks, or facilities, (19) KIB Code, (20) Miscellaneous: (i) Civil Rights Act of 1964 (Sub chapter VI or Chapter 21 of Title 42); (ii) Customer's privacy rights. Reference to Applicable Law includes amendments and supplements to or replacement, restatement or recodification occurring after the Contract Commencement Date. Base Service Level is described on the Contractor Service Fee Schedule. Bear Cart means a cart designed to be resistant to opening by bears. Breach means Contactor's failure to fully and timely meet any Performance Obligation. Bulky item(s) means any large item of solid waste that will not fit through a dumpster or roll -off container door or opening that is generated at a unit and discarded at the borough landfill. For purposes of on-call or specially scheduled bulky item pickup, bulky items shall include any item which means any large '*�^ of Solid Waste that can be safety lifted by two individuals using a dolly, generated at Residential and Commercial Solid Waste Collection Contract FY2019-25 Pane 76 of 99 Page 80 of 329 Discussion Of Contract No. FY2019-25B, Amendment #2, Residential And Com... AGENDA ITEM #2.a. 8/30/2024 Version DRAFT rResidential pRremises and discarded at a set -out site [See section 6.041 0^s'�,�,n^^"�' Set nom. Sites, Examples of bulky items are sueh-as the following: (1) Furniture, including metal desks and storage cabinets, (2) Pianos and organs, (3) Televisions, (4) Large appliances, including washers, driers, refrigerators, freezers, dishwashers, andstoves, (5) Toys, bikes, and dismantled swing sets, (6) Lawn mowers and snow blowers with no gas or oil in them, up to 4 auto or pickup tires per Customer each calendar month, with rims removed, (7) Any item (other than lumber) that can be cut or broken-down meeting the following requirements: (i) No longer than 4 feet in length, (ii) Weighing no more than 70 pounds. Bulky Items does not mean the following: (1) Material generated atnon-Residential Premises, including commercial business operations, (2) Bundled Yard Waste, branches, (3) Sod, soil, and rock, (4) Broken concrete and asphalt, (5) Brick, block, andstone, (6) Railroad ties or similar type of retaining wall timbers, (7) Remodeling debris, including shingles, (8) Carpeting, (9) Sinks, concrete laundry tubs and cast-iron plumbing fixtures, (10) Windows and doors, (11) Lumber, (12) Animal waste, including all excrement from domestic animals and fowl, and all hay, straw or other materials that have been used for animals' or fowls' bedding, (13) Liquids, including paint, (14) Hazardous waste, including household hazardous waste, (15) Fuel oiltanks, (16) Any automotive parts (including vehicle batteries and tires). C&D Debris means any sSolid wWaste -generated at a construction site either residential or commercial that must be collected under the on-call temporary dumpster and roll -off collection service section 6.07 of the approved collection contract. discarded in Dumpsters er RGII Q# Container,; that QG41v under Seetion Examples of such items are as the following (1) Bundled yYard wWaste, branches, (2) Sod, soil, and rock, (3) Broken concrete and asphalt, (4) Brick, block, and stone, (5) Railroad ties or similar type of retaining wall timbers, Residential and Commercial Solid Waste Collection Contract FY2019-25 Page 77 of 99 Page 81 of 329 Discussion Of Contract No. FY2019-25B, Amendment #2, Residential And Com... AGENDA ITEM #2.a. 8/30/2024 Version DRAFT (6) Remodeling debris, including shingles, (7) Carpeting, (8) Sinks, concrete laundry tubs and cast-iron plumbing fixtures, (9) Windows and doors, (10) 09) Lumber. Calendar Year means a period of 12 months of 365 or 366 consecutive days beginning January 1 and ending December 31. (Compare "Contract Year'7 Cardboard Recycling Container means a roll off container or dumpster with a narrow opening or slot on the side of the container that will require cardboard boxes to be first flattened in order to allow the cardboard material to be inserted into the container. Cart or Roll -Cart means a wheeled receptacle that can be emptied by either semi- or fully- automated vehicles. Change in Law means the following changes occurring after the Contract Commencement Date: (1) Tthe adoption, promulgation, repeal, modification, amendment, or other change in Applicable Law or change in judicial or administrative interpretation thereof occurring, other than: (i) !Jaws with respect to taxes based on or measured by net income, or (ii) Aany unincorporated business, payroll or Contract taxes levied by any tax governmental authority (other than any taxes levied by KIB that are obligations of Contractor and not merely fees that Contractor must collect on behalf of KI B), or (iii) Eemployment taxes; (2) Aany order or judgment issued by a Regulatory Authority that binds Contractor or has a material impact on Contract Service: (i) Iff the order orjudgment is not also the result of the willful misconduct or negligent action or inaction of the Party relying thereon or of any third party for whom the Party relying thereon is directly responsible; and (ii) 11unless excused in writing from so doing by the other Party, the Party relying thereon will make or have made, or will cause or have caused to be made, Reasonable Business Efforts (such as retaining counsel) to contest the order or judgment (it being understood that contesting in good faith an order or judgment will not constitute or be construed as a willful misconduct or negligent action of that Party); or (3) Tthe imposition by a Regulatory Authority of any new or different material conditions in connection with the issuance, renewal, or modification of any Permit; or, (4) Aa Regulatory Authority's (i) Ftailure to issue or renew any Permit, (ii) Ddelay in issuing or renewing any Permit, or (iii) Ssuspension, interruption or termination of, any Permit; Residential and Commercial Solid Waste Collection Contract FY2019-25 Page 78 of 99 Page 82 of 329 Discussion Of Contract No. FY2019-25B, Amendment #2, Residential And Com... AGENDA ITEM #2.a. 8/30/2024 Version DRAFT provided the failure, delay, suspension, or termination is not due to the willful misconduct or negligent action or inaction of the Party relying thereon or any third party for whom the Party relying thereon is directly responsible. Collect, Collection or Collecting other form thereof means pick-up and removal of discarded Solid Waste required under this Contract. Collection Commencement Date means the date described in Section 3.01, on which Contractor shall begin providing certain Customer Collection services. (Compare "Contract Commencement Date ".) Collection Hours means the time during which Contractor may collect solid waste under the KIB Code. Collection Service Area means all premises and all units on or within a premises accessible via roads maintained by the State of Alaska. the Borough, the City of Kodiak, or the U.S. Government, in and around Kodiak City and within the boundaries of the Borough, except for the USCG facilities and past milepost one (1) on Aton Larsen Road. Commercial describes Persons (such as Customers) or things (surh as Carts, er Multi family. Commercial Account means a premises or unit that is or would be required to be serviced by a dumpster. This includes premises used for commercial purposes, premises with more than three residential units, premises with more than three units of any type, and a premises which requires a dumpster for solid waste services for any reason. Premises serviced by four roll -carts due to lack of space for a dumpster shall be considered commercial. Commercial premises or unit which qualify under this solid waste collection contract for service less than four roll -carts shall be treated as a residential container for purposes of this contract and the KIBC 08.25. Commercial Customer means the owner or authorized account holder of a premises receiving commercial solid waste collection services. aGustomer whe rommPrnffiall Prpmffirp mean,; PaGh Premise containing that is Ret a Residential Premise . Multi fam ly premise, such as businesses. Compactor means a receptacle containing a ram that pushes and compresses waste into a container or bale. Compensatory Damages means "Compensatory Damages" described in Section 15. Container means any type of storage receptacle for solid waste: cart, roll -cart, dumpster, or roll -off. Residential and Commercial Solid Waste Collection Contract FY2019-25 Page 79 of 99 Page 83 of 329 Discussion Of Contract No. FY2019-25B, Amendment #2, Residential And Com... AGENDA ITEM #2.a. 8/30/2024 Version DRAFT Contract means this agreement, including all: (1) Sections; (2) Exhibits; and, (3) Other appended documentation, including Attachments, Exhibits and documentation, which are incorporated in this Contract by reference as if fully set forth herein. Contract Commencement Date means the date on which this Contract is signed by both Contractor and KIB. (Compare "Collection Commencement Date") Contract Hauler means the contractor under this municipal solid waste collection contract. Contract Manager means the following: (1) Contractor Representative (2) Contractor's officers (3) Contractor's directors, and (4) any individual in a Position ofinfluence. Contract Service means the MSW Management Services that Contractor must provide for Customers under this Contract, including all Performance Obligations, the future Collection of Recyclables if agreed to by the Parties, Collection from Roll -offs, Customer billing and collection, and Transportation of Collected MSW to the KIB landfill). (Compare "MSW Management Services".) Contract Service Area (see definition for "Collection Service Area") rneans a„,a.11'�nd Contract Service Asset Document means a document that encumbers or limits Contractor's interest in a Contract Service Asset or that evidences Contractor's ownership interest in the Contract Service Asset, such as: (1) Liease-purchase agreement, (2) linstallment purchase agreement, (3) (financing statement, mortgage or other instrument establishing a security interest to or by Contractor, (4) lif requested by KIB, documents related to Contractor's rights with respect to the Contractor Service Asset, such as Cart warranties, and (5) Iif requested by KIB, documents related to operation and maintenance of the Contractor Service Asset. Contract Service Assets means all property, both tangible and intangible (such as facility leases or equipment installment purchase agreements) used directly or indirectly in performing Contract Services, including the following: (1) Yvehicles, (2) Containers, (3) Rfeceptacles, (4) Oeperation / maintenance equipment and facilities, Residential and Commercial Solid Waste Collection Contract FY2019-25 Page 80 of 99 Page 84 of 329 Discussion Of Contract No. FY2019-25B, Amendment #2, Residential And Com... AGENDA ITEM #2.a. 8/30/2024 Version DRAFT (5) Aadministrative / office equipment (such as computer hardware and software, telephones/telefax) and offices. Contract Service Asset Inventory means a listing of all Contract Service Assets that includes a description of the type, size, year in service, comments regarding condition (if relevant), and useful service life for each asset. Contract Service Day means a weekday or Saturday on which Contractor must perform Contract Services, Holidays excepted. (Compare "day" and 'KJB Business Day ".) Contract Service Exceptions means Contractor shall not be obligated to Collect any Solid Waste in the event of any Contract Service Exceptions as defined below and in Section 9.05 of the contract: 1. Dumpster Contract Service Exceptions means a contract service exception in association with a dumpster container. Details in Section 9.05. 2. Roll -Cart Contract Service Exceptions means a contract service exception in association with a roll -cart container. Details in Section 9.05. Contractor means: (1) The Contract Hauler (see definition "contract hauler") (2) The Person named and signing the signature page of this Contract; (3) Any Transferee approved by KIB pursuant to Section 17; (4) For the purposes of indemnities, Contractor, and Contractor's Related Parties. Contractor's Aactions and Performance Obligations include reference to any Subcontractor's actions under this Contract, as applicable, without specifying in each Residential and Commercial Solid Waste Collection Contract FY2019-25 Page 81 of 99 Page 85 of 329 Discussion Of Contract No. FY2019-25B, Amendment #2, Residential And Com... AGENDA ITEM #2.a. 8/30/2024 Version DRAFT instance that Contractor must directly take those actions itself or cause its Subcontractors to take those actions on Contractor's behalf. Contractor Documentation means documentation provided by Contractor to KIB under this Contract in form and content satisfactory to KIB, including those documents set forth in Exhibit 8. Contractor Office means any office and other bases of operation located in KIB. Contractor Office Hours means at least 8:00 a.m. to 5:00 p.m. Monday through Friday (Holidays excepted). Contractor Payment Obligations means amounts Contactor owes to KIB, including: (1) Ddamages, including Liquidated Damages and Compensatory Damages; (2) Rfeimbursements to KIB, including KIB's Reimbursement Costs; (3) Aany other amounts provided in this Contract, such as costs of applying to courts for judicial construction of Contract Provisions. Contractor Phone Hours are hours (excepting Holidays) between the following times: (1) 8:00 a.m. and 5:00 p.m., Monday through Friday, Contractor Representative means the individual or individuals authorized by Contractor under Section 18.07 and listed in Contractor Documentation. (Compare "KIB Representative".) Contractor's Reimbursement Costs means Contractor's Direct Costs plus 10% thereof (Compare "KIB's Reimbursement Costs.) Contractor's Related Parties means Contractor's employees, partners, officers, agents, Subcontractors, attorneys, consultants, licensees, invitees, and Affiliates. Contractor's Related Parties are third party beneficiaries of provisions that reference them. (Compare "KIB's Related Parties" #} Contractor Service Fee means the amount listed on the Contractor Service Fee Schedule. Contractor Service Fee Schedule means the schedule set forth at Section 11.01 Contractor Transition Plan means Contractor Documentation consisting of the plan required by Section 4, which has been approved by KIB. Contract Year means each 12 -month period commencing July 1 and ending June 30, or with respect to less than 12 -month periods following execution, termination or execution of the Agreement, the portion of that 12 -month period. (Compare "Calendar upa4qn4�). Year".) Criminal Activity means any of the following: (1) Ffraud or criminal felony offenses in connection with obtaining, attempting to Residential and Commercial Solid Waste Collection Contract FY2019-25 Page 82 of 99 Page 86 of 329 Discussion Of Contract No. FY2019-25B, Amendment #2, Residential And Com... AGENDA ITEM #2.a. 8/30/2024 Version DRAFT obtain, procuring or performing a public or private agreement related to recyclables, yard waste, construction and demolition debris, garbage, refuse, or any other solid waste or MSW Management Services of any kind (including collection, hauling, transfer, processing, composting or disposal), including this Contract; (2) Bbribery or attempting to bribe a public officer or employee of a Regulatory Authority; or (3) Eembezzlement, extortion, racketeering, false claims, false statements, forgery, falsification or destruction of records, obstruction of justice, knowingly receiving stolen property, theft, or misprision (failure to disclose) of a felony; or (4) ! unlawful disposal of hazardous, designated, or other waste; or (5) Vviolation of thefollowing: (i) Ssecurities or antitrust laws (such as laws relating to price-fixing, bid - rigging and sales and market allocation), and (ii) ! unfair and anti-competitive trade practice laws, including with respect to inflation ofwaste collection, hauling ordisposal fees. Cubic Yard means 46,656 cubic inches. Customer or Customer Account means the person or entity whose name and billing information are associated with the solid waste service being provided at a unit, either residential or commercial. (See Account Holder). Contractor. Customer Count is used to calculate the annual fee adjustment for solid waste collections for the following contract year. The equation is as follows: number of residential customer accounts plus the number of commercial containers in service. • For residential units serviced by self -haul or roll -cart, the customer count is defined as the number of residential customer accounts in service. • For commercial units serviced by self -haul or roll -cart, the service or container will be counted towards the residential customer accounts in service. • For commercial units serviced by a two -yard front load dumpster or larger, the customer count is defined as the number of containers in service. Customer Complaint Protocol means the protocol under Section 9.03 In form and content satisfactory to KIB. It is Contractor Documentation. Customer Service Subscription is Contractor Documentation consisting of the service order form prescribed by Section 9.08, as approved by KI B. Residential and Commercial Solid Waste Collection Contract FY2019-25 Page 83 of 99 Page 87 of 329 Discussion Of Contract No. FY2019-25B, Amendment #2, Residential And Com... AGENDA ITEM #2.a. 8/30/2024 Version DRAFT Day means a calendar day. (Compare "KIB Business Day" and "Contract Service Day') Default means 'Default" as defined and described in Section 15. Direct Costs means the sum of the following: (1) Ppayroll costs directly related to the performance, or management or supervision of any obligation under the provisions of this Contract, comprised of compensation and fringe benefits, including vacation, sick leave, holidays, retirement, workers' compensation insurance, federal and state unemployment taxes and all medical and health insurance benefits, plus (2) Tthe costs of materials, services, direct rental costs and supplies, plus (3) Ttravel and subsistence costs, plus (4) Tthe reasonable costs of any payments to Subcontractors (with respect to Contractor) or contractors (with respect to KIB) or third party's necessary to and in connection with Performance Obligations; plus (5) Aany other cost or expense which is direct or normally associated with a task performed; plus (6) Rreasonable litigation costs and expenses, including attorneys' fees (including the reasonable value of the services rendered by KIB Counsel's Office) investigation fees and expert witness fees. Which Direct Costs are substantiated by: (7) Aa certificate signed by the principal financial officer of Contractor or an authorized representative of KIB, as the case may be: (i) Ssetting forth the amount of the cost and the reason why the cost is properly chargeable to KIB or Contractor, as the case may be, and (ii) Sstating that the cost is an arm's length and competitive price, if there are competitive prices, for the service or materials supplied; and if KIB or Contractor requests, as the case may be, the additional back-up documentation to substantiate any Direct Cost, including invoices from suppliers, Subcontractors and contractors. Direct Costs excludes profit or return on investment. Disposal or Dispose or other form thereof means final deposition or destruction of Solid Waste. Diversion or Divert means activities that reduce or eliminate the amount of Solid Waste from disposal. Drive-in Service means when the contractor is required to leave the public right-of-way and enter a driveway, private road, or private property. Dumpster means a receptacle for storing solid waste that is picked up with front end loadina by vehicles. such as those having a two-to-eight-vard capacity. thath tos °''^tom'^t Residential and Commercial Solid Waste Collection Contract FY2019-25 Pane 84 of 99 Page 88 of 329 Discussion Of Contract No. FY2019-25B, Amendment #2, Residential And Com... AGENDA ITEM #2.a. 8/30/2024 Version DRAFT t Dumpster Repair Shop Rate means the hourly rate as set in the contract service fee schedule, section 11.01 along with the cost of any parts or materials for the repairs to a dumpster. See section 6.03.c.5 for more details. Elderly or Handicapped means any Residential Customer who meets the following criteria: (1) H#as handicapped status recognized by the State Department of Motor Vehicles, or (2) Ifs over 65 years old as evidenced by birth dates on driver's licenses, birth certificates, passports, green cards, or other documentation issued by a Regulatory Authority, and (3) Pprovides written representation that he or she is functionally unable to roll his or her Refuse Cart to the curb, and that there is no one else residing in that Customer's premises who is functionally able to roll that Refuse Cartto the curb. Electronic Waste means discarded computers/monitors/equipment, office electronic equipment, entertainment device electronics, mobile phones, television sets, and other materials with electronics that may be Recyclable. Goods or Services means goods or services used in providing Contract Services, including the following: (1) !,labor, (2) Lieases and subleases, (3) Eequipment, (4) Ssupplies, (5) Csapital, (6) linsurance, if the insurer is an Affiliate, (7) Rbonds or other credit support if the surety or other provider is an Affiliate; and (8) Liegal, risk management, general and administrative services. Guarantor means the Person executing the Guaranty. Guaranty means the guaranty in a form approved by KIB, and signed by Guarantor. Herein, Hereof, Hereunder and variations mean "in this Contract", "of this Contract", "under this Contract"; "hereinbefore" and "hereinafter" mean before and after the Contract Commencement Date, respectively. Holidays means days on which KIB offices are closed for business to the public, comprised on the Contract Commencement Date of the following days: (1) New Year's Day, (2) Martin Luther King Day (3) President's Day Residential and Commercial Solid Waste Collection Contract FY2019-25 Page 85 of 99 Page 89 of 329 Discussion Of Contract No. FY2019-25B, Amendment #2, Residential And Com... AGENDA ITEM #2.a. 8/30/2024 Version DRAFT (4) Seward's Day (5) Memorial Day, (6) Juneteenth (7) Independence Day, (8) Labor Day, (9) Veteran's Day (10) Thanksgiving Day and the day after Thanksgiving and, (11) Christmas. Household Hazardous Waste means hazardous waste generated at a residential premises or unit. Including or Include or variations thereof means "including without limitation, "including, but not limited to" and "including, at a minimum". Indemnities or Indemnity or Indemnification or variations thereof means Contractor's obligation to hold KIB harmless, and all such related defenses, indemnities, and releases under this Contract. Insurance means the insurance coverages required by Section 13. KIB means the following: (1) TtheKodiak Island Borough; (2) Aanytransferee of Kodiak Island Borough; and, (3) Ffor purpose of Indemnities, Kodiak Island Borough's Related Parties. KIB Business Day means any day on which KIB Administration office is open to do business with the public. (Compare contract "Service Day.29.4 KIB Code means municipal law of KIB. KIB Governing Body means KIB Assembly. KIB Office Hours means the hours of any KIB Business Day on which KIB Administration office is open to do business with the public. (Compare 'Contractor Office Hours") KIB Representative means the individual holding the position named by KIB under Section 18.7 (Compare "Contractor Representative".) KIB's Reimbursement Costs means KIB's Direct Costs plus 15%. (Compare "Contractor's Reimbursement Costs".) KIB's Related Parties means KIB's officers, employees, agents, contractors, attorneys, administrators, affiliates, representatives, servants, insurers, heirs, assigns, volunteers, and each and every one of them. They are third party beneficiaries of provisions in this Contract that reference them. (Compare "Contractors Related Parties) KIB Landfill means the landfill owned by KIB. Letter of Credit means the letter of credit described m Section 13.03. It is Contractor Residential and Commercial Solid Waste Collection Contract FY2019-25 Page 86 of 99 Page 90 of 329 Discussion Of Contract No. FY2019-25B, Amendment #2, Residential And Com... AGENDA ITEM #2.a. 8/30/2024 Version DRAFT Documentation. Liabilities and Losses means all of the following: (1) Lliabilities; (2) Liawsuits; (3) Cslaims; (4) Ceomplaints; (5) Ccauses ofaction; (6) Ccitations; (7) (investigations; (8) Ddemands; (9) Celean-up orders; (10) Ddamages (including actual, special, consequential and punitive) whether in contract or in tort, such as natural resource, property and personal injury damages; (11) Ccosts and expenses, including (i) Aall costs and expenses of litigation, mediation or arbitration, accountant fees, engineer's fees, attorney's fees (whether KIB's or Contractor's staff attorneys or outside attorneys) and other consultant's fees, expert witness fees, and court costs; and, (ii) Rfesponse remediation and removal costs. (12) Liosses; (13) Ddebts; (14) Liiens; (15) Mn4ediation, arbitration, legal or administrative proceedings; (16) (interest; (17) Ffines, charges, penalties; and, (18) Oether detriments of every nature and description, whether under state or federal law. Liquidated Damages are described in Section 15.01 and Exhibit C. Monthly Meeting means the meeting prescribed by Section 10.03. MSW Management Services means: (1) Municipal Solid Waste (MSW) (2) Ceollection, transportation, storage, transfer, orprocessing ofsolidwaste; and/or (3) Aarranging for disposal of solid waste. Residential and Commercial Solid Waste Collection Contract FY2019-25 Page 87 of 99 Page 91 of 329 Discussion Of Contract No. FY2019-25B, Amendment #2, Residential And Com... AGENDA ITEM #2.a. 8/30/2024 Version DRAFT nF gelid Waste) Fn thn r`nntr;;nt St-ry nn Arta th At Ar'.. et Multi family Gustnrnpr rnpans a AkA.4nS 9F GGG61pies a Multi Pamily Premise. Multi family Premises means premises that are not residential premises (and therefore Non -Collection Notice means a notice in form and substance satisfactory to KIB left by Contractor in event of Contract Service Exceptions, such as Discard of Unpermitted Materials. Notice or Notify or other variation thereof means notice given under Section 20. "Due Notice" or "Notice duly given", refers to Notice given under Section 20. Owner means each person or entity identified as holding the title of ownership for a premises or unit. The owner is the responsible party for the unit(s) signing up for a solid waste services account and maintaining that account in good standing with the contract hauler. Owners of multiple premises or units will have more than one account. Own, Owner of Ownership or other variation there or has the meaning provided in the constructive ownership provisions of Section 316(a) of the Internal Revenue Code of 1986, as in effect on the Contract Commencement Date, except that: (1) 10% is substituted for 50% in Section 318(a)(2)(C) and in Section 318(a)(3)(C) thereof; (2) Section 318(a)(5)(C) is disregarded, and (3) Ownership interest of less than 10 percent is disregarded and percentage interests is determined on the basis of the percentage of voting interest or value which the ownership interest represents, whichever is greater. Party and Parties means the following 2 Persons, individually and together: (1) KIB,and (2) Contractor. Performance Assurances means each and every Indemnity, Insurance, Letter of Credit and Guaranty, and any other instrument described in Section 13. Performance Obligations means each and every obligation and liability of Contractor under this Contract. Permit means any of the following, of whatever kind and however described that Applicable Law requires Contractor to obtain or maintain with respect to satisfaction of Performance Obligations, as renewed or amended from time to time: (1) Permit; (2) Registration; (3) Order; Residential and Commercial Solid Waste Collection Contract FY2019-25 Pane 88 of 99 Page 92 of 329 Discussion Of Contract No. FY2019-25B, Amendment #2, Residential And Com... AGENDA ITEM #2.a. 8/30/2024 Version DRAFT (4) License (including business license); (5) Approval; (6) Authorization; (7) Consent; and, (8) Entitlement Person means any of the following: (1) Individual; (2) Sole proprietorship (3) Firm; (4) Association; (5) Organization; (6) Partnership (whether limited or general); (7) Corporation; (8) Trust; (9) Joint venture; (10) Regulatory Authority' or, (11) Any other entity Pledged Bank Account means the bank account that the contractor deposits security funds. Position of Influence means a position of authority or responsibility to directly or indirectly administer, manage, direct, supervise or oversee Contract Services or this Contract, including the following: (1) Affiliate Parents' officers; (2) Affiliate Parents' directors; (3) Individual who reviews or negotiates Contractor's contracts (including this Contract); (4) Individual who provides in-house legal services; (5) Affiliate insurer (captive insurance), (6) Guarantor, and (7) Affiliate surety or other Person providing Performance Assurance. Premises means a tract of land with a building or buildings that generate solid waste which are habitable and located in the contract service area and are safely accessible by vehicles. habitable buildiR99 Innatpd In the GAntFaAt SaFyiGe Area and safely aGGessible by VehiGles. Processing means solid waste: (1) Rreduction; (2) Sseparation; (3) Rrecovery; (4) Ceonversion; (5) _Rfecycling; and, (6) Ceomposting. Residential and Commercial Solid Waste Collection Contract FY2019-25 Page 89 of 99 Page 93 of 329 Discussion Of Contract No. FY2019-25B, Amendment #2, Residential And Com... AGENDA ITEM #2.a. 8/30/2024 Version DRAFT Processing means 'processing" of Solid Waste: it does not mean baling refuse. Promptly or Prompt means as soon as practicable, but not more than two (2) days. Quarter means any of all of the following periods, as the context demands: (1) January, February, March ("I st Quarter"), (2) April, May, June ("2nd Quarter"), (3) July, August, September ("3rd Quarter"), (4) October, November, December ("4th Quarter"). Proposal means the response provided by the Contractor to the Residential and Solid Waste Collection and Recycling Services Request For Proposal. RCRA means the Resource Conservation and Recovery Act (42 U.S.C. Section 6901 et seq. Reasonable Business Efforts means those efforts a reasonably prudent businessperson would expend under the same or similar circumstances in the exercise of that Person's business judgment, intending in good faith to take steps calculated to satisfy the obligation which that Person has undertaken to satisfy. Receptacle means any Cart, Dumpster, Roll Off Container, or other receptacle (such as bags designed for solid waste discard, but not shopping or grocery bags) for storing discarded Refuse. Records means information relating to Contract Services and other Performance Obligations, including documentation in any form or media, including: (1) Ledgers and books of account: (2) Invoices, vouchers and canceled checks; (3) Logs and correspondence; (4) Data and computations; (5) Files; (6) Reports; (7) Drawings, plans and designs (other than those respecting facilities or facility operations that do not involve Collection, such as materials recovery facility plans and specifications); and, (8) Photographs. Recyclables means materials which can be reprocessed, reconditioned, or adapted to use again or for a new use or function. Solid Waste that s reGyGlable. Recyclables Processing Facility means the Contractor -operated facility where it processes recyclables for shipment to markets. Recycle, Recycling or Recyclable means the process of collecting, sorting, cleansing, treating, and reconstituting materials that would otherwise become solid waste and returning them to the economic mainstream in the form of raw material for new, reused, or reconstituted products that meet the quality standards necessary to be used in the marketplace. Residential and Commercial Solid Waste Collection Contract FY2019-25 Page 90 of 99 Page 94 of 329 Discussion Of Contract No. FY2019-25B, Amendment #2, Residential And Com... AGENDA ITEM #2.a. 8/30/2024 Version DRAFT Recycled Content Procurement Policy means KIB'S current buy -recycled policy, if any. Recycling or Recycling Services means all activities related to managing Recyclables. Refuse means Solid Waste comprised of rubbish, trash, and garbage, excluding any Bulky Item that Contractor Diverts. Regularly Scheduled Collection Day(s) means the same day(s) each week on which Contractor provides Collection to a Customer. Regulatory Authority means each of the following that has jurisdiction over either Party or this Contract: (1) The United States; (2) The State of Alaska and other states; (3) KIB; (4) Governmental authorities, agencies and districts; (5) Governmental boards and commissions; (6) Federal, state and local courts; and, (7) Any other municipal, governmental or public bodies. Report means any report that Contractor is obligated to provide under this Contract, including Section 10. , types of Cell.d Waste) OR the Gentrant Cerafee Area that r nide rd elateto peso dentia) oreFRiS_eS Residential Account means a premises or unit that is designed to be a dwelling and that is not included in a commercial account serviced by a dumpster. Residential accounts are serviced by either self -haul or roll -cart services. Residential Customer means the owner or authorized account holder of a premises or unit receiving residential solid waste services. Rk-ski,enti.al or,-.rng e Residential Premise means a premises meeting beth of the following Gond tions: (1) It n nt.aiRS ene, twe er three .iwelliRg un t(s); an.l (2) Each dwelling n't is occupied by rela-tedindividuals or by 5 or fewer related in.di.,i.dualo Roll Off Container means an open -topped rectangular container for storage, collection and transport of Solid Waste that are rolled on and off flatbed collection vehicles via winches or reeving cylinders (hooks). Rollout Service means taking the following actions by manual means: (1) Dismounting from theCollection Vehicle, (2) Moving a Receptacle more than five feet (6) from its storage location indicated on that Customer's Service Subscription (such as within enclosures or by Residential and Commercial Solid Waste Collection Contract FY2019-25 Pane 91 of 99 Page 95 of 329 Discussion Of Contract No. FY2019-25B, Amendment #2, Residential And Com... AGENDA ITEM #2.a. 8/30/2024 Version DRAFT garages) to the Collection Vehicle for emptying, and (3) Returning the Receptacle to itsstorage location. Self -haul means a residential customer who hauls their own solid waste to a public roll -off dumpster site location and/or the borough landfill. Commercial self -haul is a commercial customer that hauls their own solid waste to the borough landfill. Senior Discount means the amount by which the Contractor Service Fee is reduced from time to time by KIB for providing Contract Service to any Residential Customer who is over 65 years old as evidenced to KIB by birth dates on driver's licenses, birth certificates, passports, green cards, or other documentation issued by a Regulatory Authority. Service Day means a weekday or Saturday, Holidays excepted, when Contractor must provide Contract Service. (Compare "KIB Business Day".) Set -out Site means the location agreed to by Contractor and the Customer and indicated on the Customer Service Subscription or required by KIB, where Customer must place its Carts for Collection, including: (1) Residential curb: on the curb in front of Residential Premises; in the street immediately adjacent to that curb or; if there is no curb, at the edge of Customer's property abutting the street, unless Contractor provides Roll-out Service or Up -the- Drive Service; (2) Roll-out Service: at the storage location agreed upon between a Residential Customer and Contractor and included on the Customer Service Subscription; and. (3) Up -the -Drive Collection: at the storage location agreed upon between a Residential Customer and Contractor. Sharing of a Dumpster means a dumpster on a premises that has multiple billing units, and the dumpster is shared between the owners and/or account holders of the units. Owners and/or account holders that elect to share a dumpster need to do so with a written agreement between themselves and the contract hauler. See KIBC 8.25.070.D. Sole Purpose Dumpster means a dumpster that is rented from the contract hauler by a customer in which only one type or category or solid waste is allowed to be deposited. See KIBC 8.25.060.B. Solid waste means "municipal solid waste" defined under AS 46 .03.900. Solid Waste means "municipal solid waste" discarded in Receptacles, other than Unpermitted Waste, located in the Contract Service Area that Contract Must Collect, including: (1) Refuse; (2) Recyclables; (3) Bulky Items; and, Residential and Commercial Solid Waste Collection Contract FY2019-25 Page 92 of 99 Page 96 of 329 Discussion Of Contract No. FY2019-25B, Amendment #2, Residential And Com... AGENDA ITEM #2.a. 8/30/2024 Version DRAFT (4) C&D Debris. Solid Waste Collection means the act of removing solid waste from the central storage point of a primarV generating source, such as a residence or business, to a place of solid waste disposal. Solid Waste Disposal means the orderly process of finally disposing of solid waste at the borough landfill. Solid Waste Generator means anyone who creates solid waste during everyday living and working. Solid Waste Management Facility means the following facilities, individual and together, as the context demands: (1) KIB Landfill; and, (2) any other facility that handles Solid Waste and that is approved by KIB. Solid Waste Storage means the interim containment of solid waste, in an approved manner, after generation and prior to collection and disposal. State means the State of Alaska. Subcontract means any arrangement, formal or informal, written or merely in practice, between Contractor and a Subcontractor, including: (1) Ceontractsoragreements; (2) =letters or memorandum of understanding or intent; and, (3) Ssubscription or purchaseorders. Subcontractor means anyone Person that provides Goods or Services related to Collection, transportation or storage of Solid Waste or related to Service Assets, including their operation, maintenance, and repair, to or on behalf of Contractor. Such as means for example. Term of this Contract means the period beginning on the Contract Commencement Date and ending on the Termination Date. Termination Date means the date this Contract expires or is earlier terminated. Termination Events are such instances as described in Section 16.01. Ton (or Tonnage) means a short ton of 2,000 pounds avoirdupois. Transfer means any of the following: (1) Sselling, exchanging or otherwise transferring Ownership or control of Contractor (through sale, exchange or other transfer of outstanding stock, partnership shares, equity interest or otherwise); Residential and Commercial Solid Waste Collection Contract FY2019-25 Page 93 of 99 Page 97 of 329 Discussion Of Contract No. FY2019-25B, Amendment #2, Residential And Com... AGENDA ITEM #2.a. 8/30/2024 Version DRAFT (2) Ifssuing new stock or selling, exchanging or otherwise transferring 20% or more of the then outstanding common stock of, or partnership shares or equity interest in, Contractor; (3) Aany dissolution, reorganization, consolidation, merger, re -capitalization, stock issuance or re -issuance, voting trust, pooling agreement, escrow arrangement, liquidation, buy-out or other transaction which results in a change of Ownership or control of Contractor: (4) Aany assignment by operation of law, including insolvency or bankruptcy, making assignment for the benefit of creditors, writ of attachment of an execution, being levied against Contractor, appointment of a receiver taking possession of any of Contractor's tangible or intangible property; (5) Aany sale or other transfer of 50% or more of the value of assets of Contractor except for sales or transfers to parents, grandparents, siblings, children, and grandchildren of persons having a shareholder, partnership or other equity interest in Contractor on the Contract Commencement Date ("Immediate Family") or trust created primarily to benefit members of the Immediate Family; (6) Ssubstitution by a surety company providing any performance bond of another Person for Collector to perform Contract Services; and (7) Aassumption of any of Contractor's rights under this Contract, or (8) Aassumption by, delegation to or takeover of any Performance Obligations or any other Contractor's duties or responsibilities under this Contract by any Person other than Contractor, whether by Subcontract, unless approved by KIB pursuant to the requirements ofthis Contract, orany other mechanism. (9) Aany combination of the forgoing (whether or not in related or contemporaneous transactions), without consideration, which has the effect of any transfer or change of Ownership or control of Contractor. For the purpose ofthis definition, "control" has the meaning provided in Rule 144ofthe Securities Act of 1993 Transition Plan means the Contractor Documentation consisting of the plan submitted by the Contractor pursuant to Section 4 [No Longer Applicablel, as approved by KIB. Uncontrollable Circumstance(s) means any of the following events: (1) Any natural disaster such as landslide, lightning, earthquake, fire, flood, tsunami, (other than reasonably anticipated weather conditions for the geographic area of KIB, such as wind, rain or snow); (2) Sabotage, explosion; (3) Insurrection, riot or civil disturbance, war or other emergency affecting KIB declared by the President of the United Sates or Congress of the United States, the State Governor or KIB Governing Body; Residential and Commercial Solid Waste Collection Contract FY2019-25 Page 94 of 99 Page 98 of 329 Discussion Of Contract No. FY2019-25B, Amendment #2, Residential And Com... AGENDA ITEM #2.a. 8/30/2024 Version DRAFT (4) Failure of public agency or private utility to provide and maintain water, power or service in KIB or at Contractor's operations and maintenance yard or administrative offices; (5) Other catastrophic events beyond the reasonable control of that Party and not the result of willful or negligent action or inaction of that Party (other than the contesting in good faith or the failure in good faith to contest that action or inaction), which materially and adversely affects the ability of either Party to perform any obligation under this Contract despite that Party's exercise of due diligence. Uncontrollable Circumstances excludes, without limitation: (1) Breach, Default or Contractor's financial inability to satisfy its Performance Obligations; (2) Strikes, work stoppages or other labor disputes or disturbances of any Subcontractor or Contractor's inability to hire adequate numbers of personnel who are competent and skilled in the work to which they are assigned; (3) Failure of Contractor to obtain Permits and patents, licenses, or trademarks necessary to perform Contract Services; and (4) The failure of any Contract Service Asset to function under any warranties, unless caused by Uncontrollable Circumstances. Uninhabitable means a unit that is not suitable for living or working in. The account holder may apply for this categorization but must prove they do not have any other utility services: electricity, water/sewer, or heat. Unit means a whole building, or any portion of a building which is designed for separate occupancy for commercial or residential purposes, which generates solid waste. Units in a single structure with separate entrances and separated by a common wall, are considered units regardless of whether they have separate addresses for other utility services. Unit Occupant means the person or entity occupying, or who has the right to occupy, a unit. Unpermitted Waste means materials that cannot be disposed of in the KIB Landfill under Applicable Law of the State or K18 rules. Unpermitted Waste Screening Protocol is Contractor Documentation cons1stmg of the protocol that Contractor has submitted pursuant to Section 9.03, which has been approved by KIB. Vehicle means any truck used to provide Contract Services. Violation means any noncompliance with Applicable Law as evidenced by written notice, assessment, or determination of any Regulatory Authority to Contractor, whether or not a fine or penalty is included, assessed, levied or attached. Residential and Commercial Solid Waste Collection Contract FY2019-25 Pane 95 of 99 Page 99 of 329 Discussion Of Contract No. FY2019-25B, Amendment #2, Residential And Com... AGENDA ITEM #2.a. 8/30/2024 Version DRAFT SECTION 24: EXECUTION 24.01 Execution in Counterparts. This Contract may be signed in any number of original counterparts. All counterparts will constitute butoneand thesame Contract. 24.02 Authority to Execute. a. KIB. KIB warrants that its officers listed below have been duly authorized to execute this Contract on itsbehalf b. Contractor. Contractor warrants that the individuals listed below have been duly authorized to execute this Contract on behalf of Contractor. Residential and Commercial Solid Waste Collection Contract FY2019-25 Page 96 of 99 Page 100 of 329 Discussion Of Contract No. FY2019-25B, Amendment #2, Residential And Com... 8/30/2024 Version DRAFT EXHIBIT A REQUEST FOR PROPOSAL Residential and Commercial Solid Waste Collection Contract FY2019-25 Pane 97 of 99 AGENDA ITEM #2.a. Page 101 of 329 Discussion Of Contract No. FY2019-2513, Amendment #2, Residential And Com... AGENDA ITEM #2.a. 8/30/2024 Version DRAFT EXHIBIT B LIQUIDATED DAMAGES Liquidated Damages. Pursuant to Section 15.01 ofthe Exclusive Service Contract for Residential and Commercial Solid Waste Collection and Recycling Services Contract executed by and between the Kodiak Island Borough (KIB) and (contractor), Contractor shall be liable to KIB for liquidated damages in the amount of $75.00 for any first incident, $100.00 for any second incident within 12 months, and $200.00 for every similar incident thereafter within 12 months, should KIB determine that Contractor has committed certain breaches of its Performance Obligations. KIB's assessment of Liquidated Damages does not preclude KIB from enforcing the KIB Code for corresponding Violations. 2. Breaches for Which Liquidated Damages May Be Assessed. a. Failure to provide Contract Services to any Customer, including missed pickups; b. Failure to return emptied Containers to its Set -out site; c. Failure to deliver any collected Solid Waste to a disposal facility approved by KIB; d. Failure to maintain Records, including but not limited to Contractor's failure to record a complaint; e. Failure to timely respond to and resolve a customer complaint; f. Failure to deliver, repair, replace or pick up Carts, Dumpsters or Roll -offs; g. Failure to observe Collection schedule; h. Failure to observe Contractor's Office Hours; i. Failure to clean up litter, spills, and leaks; j. Transportation of collected waste and recyclables in uncovered Collection Vehicles; k. Failure to provide KIB with timely access to Records; I. Failure to display its telephone number on Vehicles; m. Failure to return KIB telephone calls; n. Failure to meet with KIB; o. Failure to remedy any violation of KIB code within five (5) days of any Notice of Violation; p. Failure to submit Reports, or any other required documentation, to KIB; q. Failure to charge Customers consistent with the Contractor Service Fee Schedule; r. Engaging in discourteous behavior toward Customers; Residential and Commercial Solid Waste Collection Contract FY2019-25 Page 98 of 99 Page 102 of 329 Discussion Of Contract No. FY2019-25B, Amendment #2, Residential And Com... AGENDA ITEM #2.a. 8/30/2024 Version DRAFT EXHIBIT C CONTRACTOR'S PROPOSAL DOCUMENTS Residential and Commercial Solid Waste Collection Contract FY2019-25 Pane 99 of 99 Page 103 of 329 Discussion Of Contract No. FY2019-2513, Amendment #2, Residential And Com... AGENDA ITEM #2.a. 3.19.2021 Version FIRST AMENDMENT VERSION II TO CONTRACT NO. FY2019-25 RESIDENTIAL AND COMMERCIAL SOLID WASTE COLLECTION AND RECYCLING SERVICES BETWEEN KODIAK ISLAND BOROUGH AND WASTE CONNECTIONS OF ALASKA, INC. dba ALASKA WASTE MAY 2019 AMENDED MARCH 2021 Page 104 of 329 Discussion Of Contract No. FY2019-25B, Amendment #2, Residential And Com... AGENDA ITEM #2.a. 3.19.2021 Version This Second Amendment to Contract No. FY2019-25 ("Amendment") is made and entered into effective as of the 18th day of March 2021 ("Amendment Effective Date"), by and between WASTE CONNECTIONS OF ALASKA, INC. ("Contractor'), and KODIAK ISLAND BOROUGH (the `Borough"). Contractor and the Borough are each individually referred to herein as a "Partv" and collectively as the "Parties". Capitalized terms not otherwise defined herein shall have the respective meanings ascribed to them in the Agreement (as defined below). BACKGROUND A. WHEREAS, Contractor and the Borough entered into Contract No. FY2019-25 (the "Agreement') dated July 19, 2019; and B. WHEREAS, the Parties have discovered and agree that the original contract contained an error in the listing of the commercial dumpster rates due to failure to properly transfer the rates proposed in the Contractor's proposal into the contract document; and C. WHEREAS, section 11.03 permits CPI adjustments to Collection and Administrative Cost Component, and PPI adjustments to the Fuel Cost Component beginning July 1, 2020 for each successive year of the contract; and D. WHEREAS, section 11.03 permits and a Disposal Cost Component adjustment July 1, 2020 and each July 1 thereafter based upon the changes in the tonnage rate charged the Contractor and the change in customer's served since an April 15, 2018 reference date but the Request for Proposals used rates as of October 2018 as a reference point for rate proposals; and E. WHEREAS, section 6.03 contains two sections labelled as subsection b and is ambiguous as to the authority and criteria for changes in container size; and F. WHEREAS, the parties desire to revise the method for determining and charging the per occurrence charges for Residential Roll -Off or Dumpster Clean-up Costs; and G. WHEREAS, the Parties now desire to amend the Agreement to correct the error in the listing of the commercial dumpster rates as they appeared in the original agreement; to correct the reference date for calculation of adjustments for changes in disposal rates; to reduce the ambiguity as to the intended operation of subsection 6.03(b), and to incorporate those adjustments due under section 11.03 of the contract effective as of July 1, 2020. AGREEMENT NOW, THEREFORE, in consideration of the premises and obligations as set forth in this Amendment, the receipt and adequacy of which is hereby agreed to and acknowledged, the Parties agree as follows: 1. Amendment to Section 6.01(b) of the Agreement. The subsection entitled "Mandatory Service" on page 11 of the agreement is amended to clarify how the standard container charge for self -hauling customers is determined, and restated to read as follows: "(b)" If anyone notifies Contractor in writing that he or she wishes to personally store, collect, transport and dispose of Solid Waste generated on that person's Premises, (referred to as "self -haul"), Contractor may nevertheless charge that person a Contractor Service Fee commensurate with the weekly roll cart fee, based upon 95 gallons or less of Solid Waste that the self -haul (commercial or residential) Customer discards at the Landfill or a Roll Off Container. 2. Amendment to Section 6.03(b) of the Agreement. The subsection entitled "Dumpster Options" on page 13 of the agreement is amended to clarify how the appropriate container is determined, and restated to read as follows: b. Dumpster Options. Page 105 of 329 Discussion Of Contract No. FY2019-25B, Amendment #2, Residential And Com... AGENDA ITEM #2.a. 3.19.2021 Version (1) Standard Option. Contractor will provide each Commercial Premise and Multi -Family Premise (as defined in section 23) with one 2.0 cubic yard capacity dumpster to be Collected once weekly for the charge listed on the Service Fee Schedule in Section 11.01, subject to the following exceptions: (i) If a Premise falls within a Borough -designated "Bear Aware" area, it shall without exception receive a bear -resistant Dumpster. (ii) A Commercial Customer may direct Contractor to provide a Dumpster of alternate capacity, or one or more Roll -Off Containers, subject to the charges prescribed by the Contractor Service Fee Schedule. (iii) A Commercial Customer which requires one or two 95 -gallon roll carts per week to properly store and dispose of their refuse may request and receive a reduction to single or double roll carts charged at the roll cart rate. A Commercial Customer which requires more than two 95 -gallon roll carts weekly to securely store and dispose of their refuse will receive service under the standard option, subject to modification only under (ii), (iv), (v) and (vi) of this section. (iv) A Commercial Customer with dumpster service may also direct Contractor to, notwithstanding any Regularly Scheduled Collection Day(s), collect refuse from the Customer's Premises on alternate or additional days as agreed to between the Contractor and Customer, and subject to the Contractor Service Fee Schedule. (v) For a Commercial Premise or Multi Family Premise, should the Contractor, in its sole discretion, determine that there is insufficient room at a premise to place or safely collect one or more dumpsters for each customer using the corresponding set- out site, the Contractor will either: A. Provide one or more carts of the capacity and number that each Customer requires to safely and adequately store its discarded Refuse pending Collection; or. B. Allow one or more Customers to share a Dumpster. (vi) Should the Contractor determine that the routine waste volume of a Commercial Premises or Multi Family Premise requires a larger capacity container, the Contractor may provide container(s) of sufficient size and notify the customer and the Borough of the change in container(s). (vii) If there is a dispute as to the size container required or whether a customer's waste stream requires more than the customer requested container(s) the Borough Manger or designee will review the circumstances and make a final administrative determination. 3. Amendment to Section 6.03(b -d) of the Agreement. The subsection entitled "b. Compactors" on page 13 of the agreement is incorrectly labelled as a second subsection 6.03(b). This section is re -labelled as subsection 6.03(c), and the subsections labelled (c) and (d) on page 14 of the agreement are re -labelled to be (d) and (e). 4. Amendment to Section 11.01 of the Agreement. The table titled "Contractor Service Fee for Cart Service" on page 29 of the Agreement which originally read: Contractor Service Fee for Cart Service Monthly Service Fee (Serviced Once per Container Week) Senior Discount 95 -gallon Bear Resistant Roll Cart $49.95 $42.95 -$7.00 Page 106 of 329 Discussion Of Contract No. FY2019-25B, Amendment #2, Residential And Com... AGENDA ITEM #2.a. 3.19.2021 Version Each Additional 95 -gallon Bear Resistant Roll Cart $49.95 $42.95 47.00 Residential Roll -Off Roll Off Rate Per Size Roll Off Rate Per Size Additional Set -Out Fee No Charge No Charge is hereby amended to incorporate the adjustments permitted under section 11.03 effective July 1, 2020 and restated in its entirety to read as follows: Contractor Service Fee for Cart Service Container Monthly Service Fee (Serviced Once per Week) Senior Discount 95 -gallon Bear Resistant Roll Cart $49.25 $42.25 -$7.00 Each Additional 95 -gallon Bear Resistant Roll Cart $49.25 $42.25 -$7.00 Residential Roll -Off Roll Off Rate Per Size Roll Off Rate Per Size Additional Set -Out Fee No Charge No Charge 5. Amendment to Section 11.01 of the A eement. The table titled "Contractor Service Fee Surcharges for Services SHALL NOT EXCEED" on page 30 of the Agreement is hereby amended to amend the item "Residential Roll - Off or Dumpster Clean -Up Costs", to refer only to "Dumpster clean-up costs", and a new provision for fees for Residential Roll -Off Clean -Up Costs is added to read as follows: "Residential Roll -Off Clean -Up Costs shall be compensated by a one-time charge of $4.93 to each customer utilizing a roll cart and self- haul customer which will appear on their April 2021 invoice, and on the January invoice for subsequent contract years. This fee will be adjusted annually on January 1, based on the actual cost of the twelve-month period from November 191- October 3I"preceding the January 1 charge. Actual cost will be determined based upon the costs of picking up any litter and trash around residential roll off containers, not including bulky items which are too large to fit in a trash bag or any hazardous materials, for a distance of 20 feet, to be charged in 1 -minute increments of time, for a fee of $1.00. At the end of each month, Alaska Waste will provide KIB with copies of route sheets to document actual time spent, along with a summary of those sheets." 6. Amendment to Section 11.01 of the Aiaepment. The table titled "Contractor Monthly Service Fee for Dumpsters" on page 30 of the Agreement is hereby corrected to reflect the rates in the proposal effective as of the July 2019 signing of the contract as follows: Page 107 of 329 Discussion Of Contract No. FY2019-25B, Amendment #2, Residential And Com... AGENDA ITEM #2.a. 3.19.2021 Version and is further amended effective July 1, 2020 to incorporate the adjustments permitted under section 11.03 and restated in its entirety to read as follows: Contractor Monthly Service Fee for Du stens Contractor Monthly Service Fee for Dum stens 3040 cubic yard 10-20 cubic yards Dumpster Compactor Dumpster Number of Dumpstern Scheduled Tips Per Week $161.44 per haul, plus Number of Dum stern Scheduled Tips Per Week Size 1 2 disposal fee, plus Size 1 5 2 Extra Pickup 3 $ 313.42 4 $ 5 $ 1,253.70 6 Extra Pickup 2 and $ 312.15 $ 624.28 $ 936.44 $ 1248.59 $ 1560.74 $ 1872.88 $ 82.90 2.6 yard $ 416.95 $ 833.89 $ 1250.84 $ 1667.78 $ 2084.73 $ 2501.67 $ 110.74 3 yard $ 486.81 $ 973.62 $ 1460.43 $ 1947.25 $ 2434.06 $ 2920.87 $ 129.29 3.6 yard 1 $ 575.91 $ 1151.83 $ 1727.74 $ 2303.65 $ 2879.57 $ 3455.48 $ 152.96 4 yard $ 635.31 $ 1270.63 $ 1905.94 $ 2541.26 $ 3176.57 $ 3881.89 $ 168.73 5 yard $ 744.87 $ 1599.29 $ 2234.60 $ 2979.47 $ 3724.34 $ 4469.20 $ 197.83 5.5 yard $ 799.64 $ 1199.46 $ 2398.98 $ 3198.58 $ 3998.22 $ 4797.86 $ 212.38 6 yard $ 854.42 $ 1708.84 $ 2563.26 $ 3417.68 $ 4272.10 $ 5126.52 $ 226.92 8 yard $ 1,088.73 $ 2177.45 $ 3266.18 1 $ 4354.90 $ 5443.63 $ 6532.36 $ 289.15 *Contractor Service Fee for multiple Dumpsters is equal to the above scheduled amounts multiplied by the number of Dum sters and is further amended effective July 1, 2020 to incorporate the adjustments permitted under section 11.03 and restated in its entirety to read as follows: 7. Amendment to Section 11.01 of the A eement. The table titled "Contractor Monthly Service Fee for Roll - Off Service" on page 31 of the Agreement which initially read as follows: Contractor Mont-Idy Service Fee for ROILwOff Service Contractor Monthly Service Fee for Du stens 10-20 cubic yard 3040 cubic yard 10-20 cubic yards Dumpster Compactor Compactor Number of Dumpstern Scheduled Tips Per Week $161.44 per haul, plus $214.69 per haul plus Size 1 2 disposal fee, plus 3 4 5 6 Extra Pickup 2 yard $ 313.42 $ 626.85 $ 940.27 $ 1,253.70 $ 1,567.12 $ 1,880.53 $ 83.24 2.6 yard $ 418.65 $ 837.30 $ 1,255.96 $ 1,674.61 $ 2,093.26 $ 2,511.89 $ 111.19 3 yard $ 488.80 $ 977.59 $ 1,466.39 $ 1,955.19 $ 2,443.99 $ 2,932.79 $ 129.82 3.6 yard $ 578.26 $ 1,156.52 $ 1,734.78 $ 2,313.04 $ 2,891.30 $ 3,469.58 $ 153.58 4 yard $ 637.91 $ 1,275.81 $ 1,913.71 $ 2,551.61 $ 3,189.52 $ 3,827.45 $ 169.42 5 yard $ 747.91 $ 1,495.82 $ 2,243.73 $ 2,991.64 $ 3,739.55 $ 4,487.45 $ 198.64 5.5 yard $ 802.91 $ 1,605.81 $ 2,408.71 $ 3,211.62 $ 4,014.52 $ 4,817.45 $ 213.24 6 yard $ 857.91 $ 1,715.82 $ 2,573.72 $ 3,431.63 $ 4,289.54 $ 5,147.45 $ 227.85 8 yard $ 1093.17 $ 2,186.35 $ 3,279.52 $ 4,372.70 $ 5,465.87 $ 6,559.02 $ 290.33 *Contractor Service Fee for multiple Dumpsters is equal to the above scheduled amounts multiplied by the number of Dum sters 7. Amendment to Section 11.01 of the A eement. The table titled "Contractor Monthly Service Fee for Roll - Off Service" on page 31 of the Agreement which initially read as follows: Contractor Mont-Idy Service Fee for ROILwOff Service 10-20 cubic yard 3040 cubic yard 10-20 cubic yards 30-40 cubic yards Compactor Compactor $161.44 per haul, plus $214.69 per haul plus disposal fee, plus disposal fee, plus $161.44 per haul, plus $214.69 per haul, plus $21.25 disconnect fee $21.25 disconnect fee disposal fee disposal fee if applicable) if applicable) Page 108 of 329 Discussion Of Contract No. FY2019-25B, Amendment #2, Residential And Com... AGENDA ITEM #2.a. 3.19.2021 Version is hereby amended to incorporate the adjustments permitted under section 11.03 effective July 1, 2020 and restated in its entirety to read as follows: Contractor Monthly Service Fee for Roll -Off Service Service Fee for Cardboard Recycling Service 10-20 cubic yard 3040 cubic yard 10-20 cubic yards 30-40 cubic yards Compactor Compactor $214.69 per haul $160.63 per haul, plus $213.61 per haul plus disposal fee, plus disposal fee, plus $160.63 per haul, plus $213.61 per haul, plus $21.25 disconnect fee $21.25 disconnect fee disposal fee I disposal fee if applicable) if applicable) 8. Amendment to Section 11.01 of the Agreement. The table titled "Contractor Monthly Service Fee for Cardboard Recycling Service" on page 31 of the Agreement which initially read as follows: Contractor Monddy Service Fee for Cardboard Recycling Service 10 cubic yards 20 cubic yards 30 cubic yards $160.63 per haul 40 cubic yards $161.44 per haul $161.44 per haul $214.69 per haul $214.69 per haul is hereby amended to incorporate the adjustments permitted under section 11.03 effective July 1, 2020 and restated in its entirety to read as follows: Contractor Monthly Service Fee for Cardboard Recycling Service 10 cubic yards 20 cubic yards 30 cubic yards 40 cubic yards $160.63 per haul $160.63 per haul $213.61 per haul $213.61 per haul 9. Amendment to section 11.03(b) Annual Adjustment. Section 11.03(b) "Annual Adjustment" on page 32-33 is amended to make provision for the disposal rate adjustment based upon any actual changes in rates adopted by the Assembly in conjunction with the budget process. As revised this section will read as follows (added language underlined): b. Annual Adjustment. On July 1, 2020, and each following July 1, the Contractor Service Fee will be adjusted so as to make it equal to the Contractor Service Fee that is in effect during the prior Contract Year (or portion of that Contract Year), plus or minus the Weighted Adjustment Percentage times that Contractor Service Fee. Between April 1 and April 30 of each Contract Year, Contractor will prepare a statement setting forth Contractor's detailed calculation of Contractor's requested annual adjustment in Contractor Service Fee in the form of the following examples or other format prescribed by KIB (see, for example, subsection h). The calculation of the disposal component shall be made based upon the estimated change in the disposal cost proposed as provided by the Borough Manager or designee. Contractor's statement is for convenience of KIB but is not binding on KIB. KIB may make corrections or adjustments to that statement. After final Assembly approval of any change in disposal rates the disposal component adjustment shall be modified accordingly. The method used to calculate the annual service fee adjustment is set forth in the following subsection c. Page 109 of 329 Discussion Of Contract No. FY2019-25B, Amendment #2, Residential And Com... AGENDA ITEM #2.a. 3.19.2021 Version 10. Amendment to Section 11.03(c)(4) of the Agreement. Titled "Disposal Cost Component: Change in Disposal Fee and Tonnage Per Customer" on page 33 of the Agreement is hereby amended and restated in its entirety to read as follows: (4) Disposal Cost Component: Change in Disposal Fee and Tonnage Per Customer. The disposal cost identified by the Contractor for each level of service will be adjusted by 100% of the change, if any, in the tonnage rate charged Contractor at KIB Landfill (compared to the rate in effect when the RFP was issued in October 2018), and for the change, if any, in the ratio between tons disposed and the number of customers served (compared to the ratio as calculated in October 2018). 11. Section 11.03(h)(3) showing the table for the example of adjustment of the disposal cost is corrected and replaced with the following: EXAMPLE ONLY Row 2018 2019 2020 2021 Tonnage Rate Adjustment 1 Base Tonnage Rate ($/ton when $362 proposal submitted 2 Tonnage Rate in next contract year $398 $398 $398 Jul 1 - June 30 3 Percent increase (decrease) from 9.94% 9.94% 9.94% contract start Disposal Ton -per -Customer Adjustment 4 Prior year tons, actual (January 1 - g 588.19 8,766.58 8,843.25 8,972.45 December 31 5 Customer actuals (as of April l) 3,115 3,150 3,245 3,240 6 Ratio, tons / customer 2.757 2.783 2.725 2.769 7 Percent increase (decrease) from 0.94% -1.16% 0.44% contract start Disposal Cost Component Adjustment, effective July 1 8 (1 + Row 3) x (1 +Row 7) -1, 10.98% 8.67% 10.43% rounded to hundredths 9 Disposal Cost Component $14.83 $16.46 $17.89 1 $19.75 Note: Green cells are the contract start, which is used as the basis for calculations in all future years. Yellow cells are data that would be input each year based on tonnage rate, customer accounts, and scale house records. "tons and customers refer to residential accounts + commercial dumpsters. The number of residential customers refers to roll cart customers and self -haul customers. The number of commercial customers refers to the number of dumpsters in service. It excludes commercial roll offs where customers are billed for the actual cost of disposal. All numbers shown are examples (not actuals) and are shown for illustrative purposes. In this example, the disposal component of rates in initial proposal would be adjusted by 10.98% to take effect on the contract start date. The initial proposal rates would be adjusted by 8.67% and would take effect on July 1, 2020, and 10.43% on July 1, 2021. Page 110 of 329 Discussion Of Contract No. FY2019-25B, Amendment #2, Residential And Com... AGENDA ITEM #2.a. 3.19.2021 Version 12. Amendment to Section 23. Definitions, of the Agreement. Section 23: Definitions, is amended to include the following: "Cart' means a wheeled receptacle that can be emptied by either semi- or fully automated vehicles which is used by a customer, including a cart used by a customer in a dwelling unit in a multi -family premises which is not served by dumpster service. "Self -Haul" a Customer who notifies the Contractor in writing that they intend to personally store, collect, transport and dispose of Solid Waste generated on that person's Premises. These customers will be charged by the Contractor a Service Fee commensurate with the weekly roll cart fee, based upon a maximum of 190 gallons of Solid Waste that the self -haul (commercial or residential) Customer discards at the Landfill or a Roll Off Container. 13. Correction of Monthly Rental Charges for Containers and Lock Bars. Contractor agrees to discontinue charging monthly rental for containers and lock bars. Contractor further agrees to apply credits to accounts that were charged monthly rental for containers and locks bars between July 1, 2020 and the Amendment Effective Date. 14. Correction of Clerical Error in Cost Component Table. The Parties hereby agree that the initial Cost Component Tables from which adjustments under section 11.03 are calculated should read as follows: Cost Components of Residential Monthly Rate Collection and Administrative $9.94 Fuel $1.50 Fixed $0.93 Disposal $37.43 Profit $.15 Total $49.95 Cost Components of 3.6 c ,1x/weekl , Monthly Rate Collection and Administrative $146.85 Fuel $15.11 Fixed $6.81 Disposal $332.02 Profit $75.12 Total $575.91 Cost Components of 20 yd, noncompacted Rolloff pull rate — tip fee (disposal cost excluded as pass through charge Collection and Administrative $94.89 Fuel $17.11 Fixed $26.96 Profit $22.48 Total $161.44 Page 111 of 329 Discussion Of Contract No. FY2019-25B, Amendment #2, Residential And Com... AGENDA ITEM #2.a. 3.19.2021 Version 15. Refunds. To the extent this amendment results in a refund to any customer the contractor shall either credit the customer's account or refund any overpayment within thirty (30) days of signing. 16. Counterparts. This Amendment may be executed in one or more facsimile or original counterparts, each of which shall be deemed an original and both of which together shall constitute one and the same instrument. 17. Ratification. The parties acknowledge that this amendment addresses any errors which either party has identified in the Agreement. All terms and provisions of the Agreement not amended hereby, either expressly or by necessary implication, shall remain in full force and effect. 18. Conflicting Provisions. In the event of any conflict between the terms of the Agreement and this Amendment, the terms of this Amendment shall prevail. 19. Authorization. Each Party executing this Amendment represents and warrants that it is duly authorized to cause this Amendment to be executed and delivered. [Signature Page Follows] Page 112 of 329 Discussion Of Contract No. FY2019-25B, Amendment #2, Residential And Com... AGENDA ITEM #2.a. IN WITNESS WHEREOF, the Parties execute this Amendment as of the date first written above. Contractor: WASTE CONNECTIONS OF ALASKA, INC. By: Name: lLr* irrt�.w.:�ti Title: Div,%.9-. v;L#-Peta:d+ti4- Date: 3 z2(zcat ATTEST: By: Name: $ iMino Title: ; Date: 3 a ZoZI The Borough: ATTEST: By: Name: Title: bg - (1.AAAK- Date: Ao APPROVED S TO F'wt) �;V By: Name: v Title: l9a ✓ h aw r2 Date: 41^ IR - )G -)I Page 113 of 329 Discussion Of Contract No. FY2019-25B, Amendment #2, Residential And Com... AGENDA ITEM #2.a. CONTRACT NO. FY2019-25 RESIDENTIAL AND COMMERCIAL SOLID WASTE COLLECTION AND RECYCLING SERVICES BETWEEN KODIAK ISLAND BOROUGH AND WASTE CONNECTIONS OF ALASKA, INC. dba ALASKA WASTE MAY 20'19 Page 114 of 329 Discussion Of Contract No. FY2019-25B, Amendment #2, Residential And Com... AGENDA ITEM #2.a. Contract No. FY2019-25 TABLE OF CONTENTS Page 115 of 329 Discussion Of Contract No. FY2019-25B, Amendment #2, Residential And Com... RECITALS............................................................................................................................5 SECTION1 EXCLUSIVE CONTRACT................................................................................5 SECTION 2 REPRESENTATIONS AND WARRANTIES....................................................6 2.01 Contractors Representations and Warranties.........................................................6 2.02 Integration...............................................................................................................7 SECTION3 TERM OF CONTRACT.....................................................................................7 3.01 Initial Term...............................................................................................................7 3.02 Specific Provisions to Survive Term......................................................................8 3.03 Contractor's Obligations Upon Expiration or Termination........................................9 SECTION 4 TRANSITION PLANNING................................................................................7 4.01 Transition Plan.........................................................................................................9 SECTION 5 GENERAL SCOPE OF CONTRACTOR DUTIES..........................................10 5.01 Collection and Transfer of Refuse.........................................................................10 5.02 Customer Service...............................................................................................10 5.03 Fee Collection and Financial Reporting................................................................. 10 5.04 Colletion and Transfer of Recyclable Cardboard Material ....................................40 SECTION 6 SPECIFIC COLLECTION DUTIES.................................................................11 6.01 Mandatory Service................................................................................................11 6.02 Collection from Refuse Carts................................................................................11 6.03 Collection from Dumpsters, Roll -Off Containers, or Compactors... ........................ 12 6.04 Bulky Items............................................................................................................14 6.05 Emergency Services.............................................................................................14 6.06 On -Call, Temporary Dumpster, and Roll -Off Collection Service ............................15 SECTION 7 DISPOSAL OF COLLECTED REFUSE.........................................................16 7.01 Transportation of Collected Refused to KIB Landfill..............................................16 SECTION 8 FUTURE RECYCLING PROGRAM SERVICE...............................................16 8.01 General.................................................................................................................16 8.02 Prospective Services.............................................................................................16 8.03 Methods................................................................................................................17 8.04 Equipment and Personnel.....................................................................................17 8.05 Final Disposition of Recyclable Materials..............................................................17 8.06 Documentation......................................................................................................17 B.07 Records and Reporting........................................................................................18 8.08 Recyclables Processing and Marketing.................................................................18 SECTION 9 GENERAL OBLIGATIONS AND PERFORMANCE STANDARDS ...............1 B 9.01 Procedures for Missed Collections........................................................................18 9.02 Customer Complaints............................................................................................18 9.03 Unpermitted Waste Screening (or Recyclables if Applicable).- ........................... 19 9.04 Contract Service Exceptions................................................................................20 9.05 Other Special Customer Services........................................................................21 9.06 Contract Service Assets.......................................................................................21 9.07 Service Standards..............................................................................................23 9.08 Billing and Accounting Practices...........................................................................25 SECTION 10 RECORDKEEPING AND REPORTING.......................................................25 10.01 Acknowledgement.............................................................................................26 10.02 Records............................................................................................................26 Page 115 of 329 Discussion Of Contract No. FY2019-25B, Amendment #2, Residential And Com... AGENDA ITEM #2.a. Contract No. FY2019-25 10.03 Reporting..........................................................................................................27 10.04 Financial Records and Reports.........................................................................27 SECTION 11 CONTRACTOR SERVICE FEE AND SPECIAL SURCHARGES ................28 11.01 Contractor Service Fee Schedule.....................................................................28 11.02 Contractor's Costs Covered by Service Fee.....................................................31 11.03 Adjustment of Contractor Service Fee..............................................................60 SECTION 12 MISCELLANEOUS PERFORMANCE OBLIGATIONS................................37 12.01 Compliance With Applicable Laws....................................................................65 12.02 Contractor's Personnel......................................................................................67 12.03 Communication With KIB............................................... ....67 ............................... SECTION 13 INDEMNIFICATION, INSURANCE, LETTER OF CREDIT ..........................39 13.01 Indemnification..................................................................................................67 13.02 Required Insurance...........................................................................................68 13.03 Payment Security..............................................................................................45 13.04 Guaranty Agreement.......................................................................................443 13.05 Assurance of Performance..............................................................................45 SECTION 14 CHANGES IN SCOPE OF CONTRACT OBLIGATIONS .............................46 14.01 Changes to Performance Obligations.............................................................464 14.02 Proposal Requirements.....................................................................................46 SECTION 15 BREACH OF AGREEMENT, DAMAGES, AND DEFAULT .........................47 15.01 Liquidated Damages.........................................................................................47 15.02 Compensatory Damages..................................................................................48 15.03 Defaults.............................................................................................................49 15.04 Excused Breaches and Defauits.......................................................................49 15.05 Remedies Upon Breach....................................................................................80 15.06 Additional Compensatory Damages ................................................. ............82 15.07 Waivers...........................................................................:.................�...............83 15.08 Costs.................................................................................................................83 15.09 KIB Right To Perform........................................................................................84 SECTION 16 SUSPENSION OR TERMINATION OF CONTRACT...................................57 16.01 KIB's Right to Suspend or Terminate................................................................57 16.02 Criminal Activity...............................................................................................58 SECTION 17 TRANSFER OF CONTRACT.......................................................................59 17.01 Transfer by Contractor......................................................................................59 SECTION 18 THE PARTIES..............................................................................................61 18.01 Independent Contractor....................................................................................61 18.02 Parties in Interest..............................................................................................61 18.03 Binding on Successors.....................................................................................61 18.04 Further Assurances...........................................................................................61 18.05 Actions of KIB in Its Governmental Capacity.....................................................61 18.06 Contractor's Obligations Performed at Its Sole Expense...................................61 18.07 Parties' Representative.....................................................................................61 18.08 Due Diligence.................................................................................................90 18.09 No Use of KIB Name.. ....................................................................................... 90 18.10 Subcontractors..................................................................................................90 SECTION 19 AMENDMENT ..............................................................................................63 19.01 Amendments.....................................................................................................63 SECTION 20 NOTICES, CONSENTS, AND APPROVALS...............................................64 20.01 Notices..............................................................................................................64 Page 116 of 329 Discussion Of Contract No. FY2019-25B, Amendment #2, Residential And Com... AGENDA ITEM #2.a. Contract No. FY2019-25 20.02 Writing Requirements........................................................................................64 20.03 Exercise of Options...........................................................................................64 SECTION 21 INTEGRATION, GOVERNING LAW, AND VENUE.....................................65 21.01 Integration .......................................... ...............................................................65 21.02 Governing Law..................................................................................................66 21.03 Severability .......................... .............................................................................66 21.04 New Contract ................................ ....................................................................66 21.05 Venue .............................................................67 21.06 Costs.................................................................................................................67 22 ADDITIONAL TERMS AND CONDITIONS ................................................. SECTION SECTION23 DEFINITIONS...............................................................................................68 SECTION24 EXECUTION.........................................................................88 EXHIBIT A: REQUEST FOR PROPOSAL EXHIBIT B: LIQUIDATED DAMAGES EXHIBIT C: CONTRACTOR'S PROPOSAL DOCUMENTS 4 Page 117 of 329 Discussion Of Contract No. FY2019-2513, Amendment #2, Residential And Com... AGENDA ITEM #2.a. Contract No FY2019-25 CONTRACT FOR RESIDENTIAL AND COMMERCIAL SOLID WASTE COLLECTION AND RECYCLING SERVICES This Contract for Solid Waste Collection and Recycling Services ("Agreement") is made and entered into this Nineteenth (19th) day of July, 2019 ("Effective Date") by and between the Kodiak Island Borough ("Borough" or "KIB"), a second class borough organized under and laws of the State of Alaska, and Waste Connections of Alaska, Inc. dba Alaska Waste ("Contractor"), an Alaska corporation authorized to do business in the State of Alaska, collectively referred to as the Parties. WHEREAS, the Borough, pursuant to AS. 29.35.210(a)(4), is authorized to provide for garbage, solid waste, and septic collection and disposal on a non-areawide basis; and, WHEREAS, the Borough, pursuant to Chapter 8.25 of the Kodiak Island Borough Code, regulates the management of municipal solid waste, including its storage, collection, processing, recovery, and disposal; and, WHEREAS, the Borough does so to protect the public safety, health and welfare of the people of the Borough, to protect, preserve, and enhance the environment within the Borough, and to provide for fiscally responsible solid waste management; and, WHEREAS, the Contractor submitted a proposal to the Borough in response to an RFP that was issued to identify parties qualified to administer the solid waste services and recycling program; and, WHEREAS, based upon the information and representations set forth in the Contractors proposal, the Borough has determined that the Contractor is the lowest responsible bidder. and, WHEREAS, the Parties wish for Contractor to administer the Borough's solid waste and recycling program, subject to the terms and conditions set forth in this Agreement; and, NOW, THEREFORE, in consideration of the mutual promises, covenants, and agreements contained herein, and the mutual benefits conferred hereunder, the receipt and sufficiency of which are hereby acknowledged, the Borough and the Contractor agree as follows: SECTION 1: EXCLUSIVE CONTRACT 1.01 Exclusive Right and Privilege to Provide Contract Services. The KIB grants Contractor the exclusive right and privilege, together with the obligation to provide, Contract Service in the Contract Service Area conditioned on Contractor being at all times ready, willing, and able to meet each and every Performance Obligation. Page 118 of 329 Discussion Of Contract No. FY2019-25B, Amendment #2, Residential And Com... AGENDA ITEM #2.a. Contract No. FY2019-25 SECTION 2: REPRESENTATIONS AND WARRANTIES 2.01 Contractor's Representations and Warranties. a. Status. Contractor is a corporation duly organized, validly existing and in good standing under the laws of the State of Alaska and is in all respects qualified to do business and perform the Contract Services within the State. b. Authority and Authorization. Contractor has full legal right, power and authority to execute and deliver this Contract and satisfy its Performance Obligations. This Contract has been duly signed and delivered by Contractor and constitutes a legal, valid and binding obligation of Contractor enforceable against Contractor in accordance with itsterms. ;. No Conflicts. Neither the execution nor delivery by Contractor of this Contract, the performance by Contractor of its Performance Obligations, nor the fulfillment by Contractor of the terms and conditions of this Contract: (1) Conflicts with, violates or results in breach of any Applicable Law; (2) Conflicts with, violates or results in a breach of any term or conditions of any judgment, order or decree of any Regulatory Authority or any agreement or instrument to which Contractor or any of its Affiliates is a party or by which Contractor or any of its Affiliates' properties or assets are bound, or constitutes a default thereunder; or (3) Will result in the creation or imposition of any lien, charge or encumbrance of any nature whatsoever upon any of the properties or assets of Contractor. d. No Approvals Required. No approval, authorization, license, permit, order, consent, declaration, registration or filing with any governmental or administrative authority, commission, Governing Body, agency or instrumentality is required for the valid execution and delivery of this Contract by Contractor, except those that have been duly obtained from its Board of Directors or other governing body. e. No Litigation. Contractor warrants that there is no current, pending, or, to the best of Contractor's knowledge, threatened action, suit, proceeding or investigation, either at law or in equity, before or by any court, governmental authority, commission, governing body, agency or instrumentality, by or against Contractor wherein an unfavorable decision, ruling or finding, in any single case or in the aggregate, would adversely affect the performance by Contractor of its obligations under this Contract or in connection with the transactions contemplated by this Contract, or which in any way would adversely affect the validity or enforceability of this Contract or any other A Page 119 of 329 Discussion Of Contract No. FY2019-25B, Amendment #2, Residential And Com... AGENDA ITEM #2.a. Contract No. FY2019-25 agreement or instrument entered into by Contractor in connection with the transactions contemplated by this Contract. Contractor further warrants that there is no action, suit, proceeding or investigation, either at law or in equity, before or by any court, governmental authority, commission, board, agency or 'instrumentality pending or threatened, by or against KIB by Contractor. f. Due Diligence. Contractor warrants that it has conducted such independent investigation, examination and research of the conditions and circumstances surrounding this Contract, including the best and proper methods of providing the Contract Services (including the types of Contract Services), labor, equipment and materials to ensure its ability to provide the Contract Services according to the terms and conditions set forth herein. Contractor agrees that it will make no claim against KIB based on any good faith estimates, statements or interpretations made by any officer, employee or agent of KIB that proves to be in any respect erroneous. g. Compliance with Applicable Laws. Contractor further represents and warrants that it has fully complied with all Applicable Laws, including without limitation any and all laws relating to conflicts of interest, in the course of procuring this Contract. h. Truth and Accuracy of Application. Contractor warrants that the information provided in the proposal it submitted in response to KIB' s Request for Proposals for this Contract, together with any addenda thereto, including all amendments, clarifications, and other communications furnished to KIB as part of that proposal, is true, accurate and complete. I. Updates to Contractor Documentation. Contractor agrees to promptly notify KIB of any change in circumstance that renders untrue any information represented to KIB as part of the competitive procurement process giving rise to the award of this Contract, and shall also do so in the event that it discovers that any representation to KIB was otherwise erroneous. 2.02 Integration. This instrument, as well as all appendices and amendments, set forth the entire agreement of the parties. There exist no other promises, terms, conditions, or obligations other than those contained herein, and this Contract shall supersede all previous communications, representations or agreements, either oral or written, between the parties hereto. SECTION 3: TERM OF CONTRACT 3.01 Initial Term. a. Contract Commencement Date and expiration of Term. The Contract Term 7 Page 120 of 329 Discussion Of Contract No. FY2019-25B, Amendment #2, Residential And Com... AGENDA ITEM #2.a. Contract No. FY2019-25 shall commence on July 1, 2020 ("Commencement Date") and, unless extended, shall expire in 7 years on June 30, 2027 ("Termination Date"). b. Collection Commencement Date. The Collection Commencement Date is July 1, 2020. c. Short-term extension. On or before 30 days prior to the expiration of the Term whether original under subsection a) or extended under subsection d), KIB, in its sole discretion, may extend the Term for up to six months. d. Mutual Option to Extend Term. On or before 60 days prior to the following dates: (1) expiration of the Initial Term under subsection a), (2) the extended Term under subsection b), or (3) a portion of the maximum allowable extended Term under this subsection, with KIB and Contractor's mutual agreement, may incrementally extend the Term for up to 3 years in any combination of the following number of years (such as 1 +2, 1+1+1; 2+1). 3.02 Specific Provisions to Survive Term. The following provisions of this Contract will survive the Term: a. all acknowledgements, representations and warranties of the Parties in this Contract; b. all Indemnities; c. Contractor Payment Obligations or claims therefore; d. all Contractor's Performance Obligations and KIB's rights with respect to Records, including giving KIS a copy of Records, or allowing KIB to copy, inspect and audit Records, including: • certificates of Insurance or other evidence of Insurance coverage (such as endorsements extending coverage of claims made insurance policies), and • Contract Service Asset Inventory and Contract Service Asset Documentation (for example, with respect to Refuse Carts that KIB has the right to acquire). e. all Contractor's Performance Obligations and KIB's rights with respect to Reports; including submitting final Reports; 8 Page 121 of 329 Discussion Of Contract No. FY2019-25B, Amendment #2, Residential And Com... AGENDA ITEM #2.a. Contract No. FY20f9-25 f. providing endorsements extending coverage of claims made insurance policies, if IB waives the claims made requirement and allows claims made insurance policies; g. any other provision that expressly states that it survives the Termination Date (such transfer of Cart ownership to KIB); and h. any right of either Party vested and any obligation of either Parties accrued before the Termination Date. 3.03 Obligations Upon Termination or Expiration. a. Sale or Lease of Contract Service Assets. Upon termination or expiration of this Agreement, Contractor may within 10 days enter into good faith negotiations to permit KIB or its newly selected contract hauler to purchase or lease those Contract Service Assets, including Refuse Containers, used and owned by Contractor within the Service Area. As part of any such purchase or lease agreement, Contractor shall deliver any and all Contract Service Asset Documents, including, but not limited to: manufacturers warranties, maintenance agreements, financing documents, and recorded financing statements, if any. b. Contractor Removal of Refuse Containers. If the Contract Service Assets are not sold or leased to KIB upon termination of this Agreement, Contractor shall remove all its Refuse Containers from the Service Area within 90 days c. Survival of Obligations. Contractor's obligations under this Section shall survive the termination or expiration of this Agreement, or any extension thereto. SECTION 4: TRANSITION PLANNING 4.01 Transition Plan. a. Contractor's Acknowledgement. Contractor acknowledges that it is of the utmost importance to KIB that the transition from KIB's current solid waste services provider to the Contractor proceeds smoothly, and without any significant interruption in services. To ensure the continued satisfaction of Customers, it shall, submit their transition plan along with their proposal. To be reviewed and taken into consideration when scoring is done. (1) Timely Collection at each C ustomer's Premise; (2) Accurate billing for Special Service Surcharges; (3) Efficient distribution of Refuse Containers; (4) That Customer preferences are taken into account with respect to any modifications to pick up days or times, the scope of services, or program specifications; and Page 122 of 329 Discussion Of Contract No. FY2019-25B, Amendment #2, Residential And Com... AGENDA ITEM #2.a. Contract No. FY2019-25 b. Contractor Transition Plan. The Contractor shall submit a Preliminary Transition Plan for KIB' s approval at the time of the submission of their proposal. The Final Transition Plan will be submitted for KIB's approval within sixty (60) days of the Notice of Intent to Award which the Contractor shall be able to implement in a manner satisfactory to KIB at the commencement of the contract. The Transition Plan will provide details for responding to Customer complaints and inquiries. c. Compliance with Transition Plan. Contractor will fully implement its Transition Plan, and shall do so in a timely manner. Contractor will direct employees to work overtime and/or add extra shifts. as necessary, without any increase to its Contractor Service Fee to ensure compliance with the Plan. Contractor agrees that it will, on a weekly basis. submit to KIB written status reports in a form and containing such information as is satisfactory to KIB, which shall commence no later than the Friday of the week following the Contract Commencement Date. On the first KIB Business Day each week. and promptly upon KIB request thereafter. Contractor will meet with KIB to review the status of its implementation of the Transition Plan. SECTION 5: GENERAL SCOPE OF CONTRACTOR DUTIES 5.01 Collection and Transfer of Refuse. Subject to the conditions contained herein, Contractor shall, among other things: a. Provide Refuse Containers to Customers; b. Provide Residential and Commercial Collection service; c. Collect Municipal Solid Waste generated in the Service Area; d. Deliver Municipal Solid Waste to the KIB Landfill. 5.02 Customer Service. Subject to the conditions contained herein, Contractor shall, among other things: a. Serve as the primary point of contact for Customers; b. Resolve Customer complaints in a timely manner; c. Report Customer complaints to KIB; and, d. Perform its Collection and Transfer duties in a professional and courteous manner. 5.03 Fee Collection and Financial Reporting. Subject to the conditions contained herein, Contractor shall, among other things: 10 Page 123 of 329 Discussion Of Contract No. FY2019-25B, Amendment #2, Residential And Com... AGENDA ITEM #2.a. Contract No. FY2019-25 a. On behalf of KIB, charge Customers a fee or fees in the amounts directed by KIB; b. Remit to KIB such portions of those fees as directed herein; c. Maintain detailed financial records regarding the billing and collection of fees; and, d. Issue Reports to KIB in the manner and at the times directed herein. 5.04 Collection and Transfer of Recyclable Cardboard Material. Subject to the conditions contained herein, Contractor shall, among other things: a. Provide Cardboard Recycling Containers to Customers; and lo. Deliver Cardboard Recycling Containers to the KIB designated recycling facility for processing. SECTION 6: SPECIFIC COLLECTION DUTIES 6.01 Mandatory Service. a. Contractor acknowledges that Contractor is required to charge the owner or occupant of a Premises a Service Fee, regardless of whether that owner or occupant self -hauls Solid Waste and discards it in the Dumpster and Roll Off Container at KIB landfill or utilizes Services at Customer's Premises. b. If anyone notifies Contractor in writing that he or she wishes to personally store, collect, transport and dispose of Solid Waste generated on that person's Premises, (referred to as "self -haul"), Contractor may nevertheless charge that person a Contractor Service Fee commensurate with the gallon equivalent (32, 64 or 96 gallons) of Solid Waste that the self -haul Customer discards at the Dumpster or Roll Off Container located at KIB Landfill, as estimated by a KIB employee. c. Mandatory Service Notice. Within seven (7) Service Days after receiving notice (based on Contractor's drivers' observations, information and belief, or otherwise) that a formerly unoccupied Premise becomes occupied, or that the individuals occupying the Premises have changed, Contractor will give written notice to the owner or occupant of that Premises that Service is required unless Contractor has already received a request for Service at that Premise, or KIB revokes such provisions of the KIB Code that require mandatory Service. 6.02 Collection From Refuse Carts. a. Automated or Semi Automated Collection. Contractor will Collect all Refuse Carts using an Automated or Semi -Automated manner. "Automated" means that Refuse Carts are lifted from their Set -Out Site, emptied and set 11 Page 124 of 329 Discussion Of Contract No. FY2019-25B, Amendment #2, Residential And Com... AGENDA ITEM #2.a. Contract No. FY2019-25 back down at their Set -Out Site by mechanical means. "Semi -Automated " means that Refuse Carts are rolled by Contractor's employees from their Set -Out Sites into position near the Collection Vehicle; lifted, emptied and set back down by mechanical means; and returned by such employees to their Set -Out Sites. b. Mandatory Collection from Refuse Carts. Beginning on the Collection Commencement Date, and on a weekly basis thereafter, Contractor shall collect all Refuse placed in Carts located at Residential, Multi -family and Commercial Premises within the City of Kodiak, or such other areas as may be designated by KIB in a Notice to Contractor, on the Regularly Scheduled Collection Day. c. Refuse Cart Options. (1) Standard Option. unless Contractor must provide Roll Off Containers pursuant to Section 6.02, it shall provide each Premises with one 95 - gallon capacity Bear -Resistant Refuse Cart for the charge listed on the Service Fee Schedule in Section 11.01, except if the owner or occupant of that Premises directs Contractor to provide a different number of Carts under following Subsection c.(2). (i) If a Premise falls within a Borough -designated "Bear Aware" area, it shall without exception be excluded from receiving a roll cart. (2) Customer Reg nests for Additional Refuse Carts. Contractor will provide Customers with Bear -Resistant Refuse Carts. Additional carts shall be provided upon request, with each additional cart priced at the corresponding Service Fee. d. Cart Rollout Service. (1) Scope of Service. Upon request, Contractor will provide Rollout Service to Customers, as follows: (i) Without Surcharge. Rollout service shall be provided to Senior Citizens and Disabled Customers without surcharge, if the Customer certifies that no able-bodied person resides at Customer's premise. (ii) With Surcharge. If requested, rollout service shall be provided to all other Customers, who shall be charged the surcharge set forth on the Contractor Service Fee Schedule. 6.03 Collection From Dumpsters, Roll -Off Containers, or Compactors. a. Residential, Commercial, or Multi -Family Collection. Generally beginning on the Collection Commencement Date, Contractor will provide all Multi -Family and Commercial Customers within the Service Area with either Residential Roll -Off Containers or Dumpsters, for which Customers shall be charged in 12 Page 125 of 329 Discussion Of Contract No. FY2019-25B, Amendment #2, Residential And Com... AGENDA ITEM #2.a. Contract No. FY2019-25 accordance with the Contractor Service Fee Schedule in Section 11.01. Residential Customers whose Premises are located within the portion of the Service Area outside the City of Kodiak shall also be provided with a Residential Roll -Off Container or Dumpster. Contractor will collect Refuse discarded therein at least weekly, on the Regularly Scheduled Collection Day(s) or on alternate or additional days as agreed to between Contractor and the Customer. b. Dumpster Options. (1) Standard Option. Contractor will provide each Commercial Premise and Multi - Family Premise with one 2.0 cubic yard capacity dumpster to be Collected once weekly for the charge listed on the Service Fee Schedule in Section 11.01, subject to the following exceptions: (ii) If a Premise falls within a Borough -designated 'Bear Aware" area, it shall without exception receive a bear -resistant Dumpster. (iii) A Customer may direct Contractor to provide a Dumpster of alternate capacity, or one or more Refuse Carts or Roll -Off Containers, subject to the charges prescribed by the Contractor Service Fee Schedule. A Customer may also direct Contractor to, notwithstanding any Regularly Scheduled Collection Day(s), collect refuse from the Customer's Premises on alternate or additional days as agreed to between the Contractor and Customer, and subject to the Contractor Service Fee Schedule. (iv) Should the Contractor, in its sole discretion, determine that there is insufficient room at a premise to place or safely collect one or more dumpsters for each customer using the corresponding set- out site, the Contractor will either: A. Provide one or more carts of the capacity and number that each Customer requires to safely and adequately store its discarded Refuse pending Collection; or. B. Allow one or more Customers to share a Dumpster. (2) Dumpster Locks. Should a Customer so request, Contractor shall promptly provide dumpster Locks, which shall be subject to any surcharge set forth on the Contractor Service Fee Schedule. b. Compactors. Contractor is not obligated to provide a Compactor to any Customer. However, on request of the owner or occupant of a Commercial or Multi -family Premise, Contactor will Collect all Refuse placed inside each Compactor at the frequency requested by that Customer and for the charge listed on the Service Fee Schedule in Section 11.01. 13 Page 126 of 329 Discussion Of Contract No. FY2019-25B, Amendment #2, Residential And Com... AGENDA ITEM #2.a. Contract No FY2019-25 c. Roll -Off Container at KIB Landfill. Beginning on the Commencement Date, Contractor will deliver a Dumpster or Roll Off Container in any capacity provided on the Service Fee Schedule in Section 11.01, as requested by KIB, to the location specified by KIB at the KIB Landfill. Contractor will replace that Dumpster or Roll -off Container with another Dumpster or Roll Off Container of any other capacity provided on the Service Fee Schedule, within two (2) Service Days of KIB' s request. Contractor will provide KIB with the Service prescribed in Section 6.03(a) (including container repair and maintenance), as if KIS were a Customer. Beginning on the Collection Commencement Date, Contractor will Collect all Solid Waste placed therein at the frequency agreed to by KIB and the Contractor, and dispose of it at the KIB Landfill, without charge to KIB. d. Cardboard Recycling Containers. Beginning on the Commencement Date, Contractor will deliver a specially fabricated Cardboard Recycling Container in any capacity provided on the Service Fee Schedule in Section 11.01, at the designated tocations specified by the KIB. Contractor will collect cardboard recyclable material discarded therein at least weekly, on the Regularly Scheduled Collection Day(s) or on altemate or additional days as agreed to between Contractor and the KIB to ensure that each Cardboard Recydrxd Container is MT * emptied when container is at rapacity. 6.04 Bulky Items. a. Reporting Bulky items. Contractor's employees must promptly notify Contractor of any Bulky Items that they observe discarded at a Dumpster Set - Out Site. b. On -Call Collection Service and Fees. Contractor must, within three (3) days of a Customer's request, collect Bulky Items with maximum allowable dimensions of 4 x 5 x 6 cubic feet that are discarded at a Set -Out Site. Customers shall be entitled to one such pickup each month; however, Contractor shall charge Customers the surcharge listed on the Contractor Service l=ee Schedule in Section 11.01 for each additional pickup of Bulky Items that occurs within the same calendar month. c. Diversion Program for Bulky Items. Contractor will use reasonable business efforts to divert all bulky Items that it collects. Contractor shall deliver all bulky Items that it does not divert to a facility approved by KIB. 6.05 Emergency Services. a. Nature of Emergency Services. Within 24 hours of notice by KIB, whether oral or written, Contractor will provide emergency services beyond the scope of the Contract Services at the times and to the extent directed by KIB, including providing vehicles, drivers and other equipment and personnel to cleanup Solid Waste and other debris consequent upon natural disasters such as earthquakes, storms, floods, riots and civil disturbances, for which 14 Page 127 of 329 Discussion Of Contract No. FY2019-25B, Amendment #2, Residential And Com... AGENDA ITEM #2.a. Contract No. FY2019-25 Contractor will be compensated Contractor's reasonable Reimbursement Costs. To the fullest extent possible, Contractor shall seek KIB's preapproval prior to incurring any expenses related to the provision of emergency services. b. Reporting. Contractor will cooperate with KIB, the State, and federal officials in filing information related to a regional, state or federal declared state of emergency or disaster as to which Contractor has provided services under this Chapter. c. Emergency Backup Service Plan. Contractor will submit an emergency backup service plan to KIB sixty (60) days prior to the Contract Commencement Date, which shall be subject to KIB's approval. Contractor shall implement that plan if, due to Uncontrollable Circumstances or for any reason whatsoever, Contractor fails, refuses, or is unable for a period of 48 hours to collect and/or at any time transport Solid Waste or any portion thereof to the applicable Solid Waste Management Facility, and the KIB Manager determines such failure reasonably presents a danger to the public health, safety, orwelfare. 6.06 On -Call Temporary Dumpster and Roll -Off Collection Service. a. Container Delivery. Upon request, Contractor will deliver a Dumpster or Roll - Off Container, in any number and size available pursuant to the Contractor Service Fee Schedule, at the following times: (1) On the same Service Day if Contractor receives a request before 10 a.m. on that Service Day; (2) On the next Service Day if Contractor receives a request after 10 a.m. but before 4:00 p.m. on a Service Day; and, (3) Within two Service Days, if Contractor receives a request after 4:00 p.m. on a Service Day. b. Collection. Beginning on the Collection Commencement Date, Contractor will collect all Refuse and/or Construction and Demolition (C&D) Debris deposited in a Dumpster or Roll -Off Container at the frequency requested by the Customer for the corresponding charges listed on the Contractor Service Fee Schedule in Section 11.01. c. Diversion of Construction and Demolition Debris to KIB Landfill. The Contractor shall use Reasonable Business Efforts to Divert Construction and Demolition Debris from disposal. If Contractor cannot divert Construction and Demolition Debris from disposal using Reasonable Business Efforts, it will deliver it to KIB Landfill, subject to the same obligations that Contractor has with respect to Refuse under Section 7. d. Container Pickup. Contractor will pick up such Dumpster or Roll Off Container 15 Page 128 of 329 Discussion Of Contract No. FY2019-25B, Amendment #2, Residential And Com... AGENDA ITEM #2.a. Contract No. FY2019-25 within two (2) Service Days of a Customer's request or other time agreed to between Contractor and Customer. SECTION 7: DISPOSAL OF COLLECTED REFUSE 7.01 Transportation of Collected Refuse to KIB Landfill. a. KIB Landfill. Contractor will transport and deliver all Refuse that it Collects to the KIB Landfill. Contractor will coordinate that delivery with Holiday Collection schedules and closures for repair and maintenance. Contractor will keep Refuse that it Collects at Residential Premises, whether in Carts, Dumpsters, or Roll -Offs, separate from Refuse that it Collects at Commercial or Multi -Family Premises and will not commingle that Refuse in one Vehicle. b. Compliance and Cooperation. Contractor will ensure that its Vehicles are capable of passing in and out of the door of the baler building at the KIB Landfill. Contractor will cooperate with KIB Landfill operators, and shall comply with all rules in effect at the KIB Landfill, including, but not limited to: (1) Delivering Refuse only at the times and on those days specified by KIB; (2) Following directions to unload Collection Vehicles in designated areas; (3) Accommodating KIB Landfill operations and maintenance activities; and, (4) Complying with KIB's Unpermitted Waste exclusion programs. c. Disposal Fees. Contractor will pay all KIB Landfill Disposal fees, including the fees for Disposal of Refuse that Contractor Collects from Rall -Off Containers and Dumpsters located at the KIB landfill. SECTION 8: FUTURE RECYCLING SERVICES PROGRAM 8.01 General. Contractor acknowledges that, subject to the protocols set forth at Section 14 of this Agreement, KIB may also require Contractor to implement a Recycling collection program. In that event, KIB will request that Contractor submit a proposal to implement such Recycling collection program, which it shall review and consider prior to requesting proposals from, or negotiating with, any other Person for the provision of these services. However, if KIB and Contractor do not reach agreement by the end of the period specified in Section 14, KIB shall be entitled to take any such other actions as may be permissible pursuant to the terms of this Agreement. 8.02 Prospective Services. If KIB selects Contractor to provide Recycling services, Contractor shall supply all labor, equipment, personnel, quarterly reports, and payment invoices in a timely manner as outlined in this Agreement. The Contractor shall agree to perform all services necessary for the processing and shipment of recyclable materials that it collects within the City of Kodiak and 16 Page 129 of 329 Discussion Of Contract No. FY2019-25B, Amendment #2, Residential And Com... AGENDA ITEM #2.a. Contract No. FY2019-25 KIB. Contractor will collect and process cardboard, mixed paper/paperboard, newspaper, plastic, aluminum cans and office paper. Recyclable material does not include large metal items such as vehicles, parts of vehicles, appliances or home construction type of siding. Contractor will implement the processing methods and Recyclables collection as described in its Proposal and the final addendum and cover all costs associated with Contractor's collection and handling of Recyclables. 8.03 Methods. Contractor will adhere to the collection plan and processing methods based upon its Proposal and any addenda thereto. 8.04 Equipment and Personnel. The Contractor has identified, in its Proposal and any addenda thereto, the equipment to be used in the collection and processing of Recyclables. This identification shall include the minimum following information: a. Equipmenttype; b. Equipment quantities; and, c. Availability of backup equipment. The Contractor has also identified in its Proposal the number of personnel necessary to meet the requirements of this Agreement. Personnel listed shall include management, supervisory, customer service, equipment operators, collection personnel, etc. Any changes to management personnel shall be promptly communicated to KIB. 8.05 Final Disposition of Recyclable Materials. It shall be the responsibility of the Contractor to ensure that collected material is processed and recycled. To this end the Contractor shall document the final disposition of the collected material as part of its quarterly reporting requirement. 8.06 Documentation. Contractor shall maintain throughout the duration of the Agreement, and for two (2) additional years, documentation on all of the Contract Services provided. Contractor shall maintain records to substantiate all work performed and fees requested. Such records shall include, but not be limited to, daily records on the pounds of processed recyclables, shipment records, and recyclable pick up locations. KIB may request that copies or portions of this documentation be included with Contractor's monthly requests for payment. 8.07 Records and Reporting. a. Records. Contractor will collect and record, on a daily basis, tonnage information, including the gross, tare, and net weight of each load of Recyclables it collects, as well as the receipts from the Recyclables processing facilities, in such a manner that Contractor and KIB may review the amount of Recyclables collected and delivered by Contractor on any given day. 17 Page 130 of 329 Discussion Of Contract No. FY2019-25B, Amendment #2, Residential And Com... AGENDA ITEM #2.a. Contract No. FY2019-25 b. Reports. Contractor will include a summary of the records for tonnage, and any additional information requested by KIB in its Quarterly Report, as described in the KIB Residential and Commercial Solid Waste Collection and Recycling Services RFP and Contractor's Proposal. c. Inventory. Contractor will submit an updated inventory of Service Assets to KIB on July i of each year during the Contract Term, which shall include the following: (1) A general description of its maintenance yards, operations facilities, drop off locations, Contractor Office, and any other administrative and customer service offices; and, (2) A list of Vehicles described by type, including manufacture and model number for cab, chassis and body; descriptive notation (i.e. front-end loader, compactor, etc.); number; DMV license number; the age of the chassis and body; type of body (i.e., open -top, closed, etc.); type of fuel used; the date of acquisition; the maintenance and rebuild status; and, lease or installment purchase information. 8.08 Recyclables Processing and Marketing. Contractor may change its selection of Recyclables Processing Facility and notify KIB within 30 days of doing so. If the Recyclables Processing Facility is wholly or partially inoperable for any reason, including uncontrollable circumstances, Contractor will make other arrangements to process Recyclables or to transport the Recyclables to the Recyclables Processing Facility without increase of the Contractor compensation despite any consequent additional costs to Contractor. SECTION 9: GENERAL OBLIGATIONS AND PERFORMANCE STANDARDS 9.01 Procedures for Missed Collections. a. Corrective Action Required. Absent Contract Service Exceptions, on the next Contract Service Day following telephonic or other notice to Contractor, Contractor will Collect without charge any container that Contractor should have Collected, delivered, exchanged, or repaired but did not. If Contractor fails to do so, KIB may provide the Contract Service itself or through a third party and Contractor will reimburse KIB's Reimbursement Costs thereof. 9.02 Customer Complaints. a. Response. Contractor will respond to all Customer inquiries and complaints (including any inquiry or complaint left with the telephone answering service) within 24 hours following notice to Contractor, and handle all complaints consistent with the requirements of the Customer Complaint Protocol set forth in this Section. b. Customer Complaint Protocol. Contractor will maintain, update as 18 Page 131 of 329 Discussion Of Contract No. FY2019-25B, Amendment #2, Residential And Com... AGENDA ITEM #2.a. Contract No. FY2019-25 necessary, and follow the Customer Complaint Protocol. Upon commencement of this Agreement and in advance of all updates, Contractor will provide KIB with a copy of the Customer Complaint Protocol for its approval, which shall not be unreasonably withheld. c. Referral to KIB. Contractor will not refer or forward any Customer to KIB for resolution of complaints or answers to inquiries unless Contractor has made all reasonable efforts to resolve the matter, has failed to reach resolution, and the Customer insists. In such event, Contractor shall refer the Customer to the individual specified as the KIB Representative. d. Employee Training. Contractor will train each of its Customer service employees to follow the Customer Complaint Protocol upon starting employment, and periodically thereafter. e. Record keeping and KIB Access to Records. Contractor will maintain a written record of every inquiry and complaint that it receives related to its provision of the Contract Services, including information required by KIB, and provide KIB with a copy of any such inquiries and complaints that occurred in a month by the 15th day of the subsequent month. Contractor will allow KIB access to complaint records at Contractor's Office during Contractor Office Hours. Contractor will provide copies of any Customer complaints and the resolution of those complaints, and other related Records, to KIB within two hours of KIB's request. f. Certain Customer complaints may be directly related to, or require direct input from, the KIB, and Contractor should not be penalized or incur costs for such matters. KIB's invoice for KIB's Reimbursement Costs shall indicate the following (1) the name and address of the Customer; (2) nature of complaint or inquiry; (3) amount of time spent by KIB employee or representative; (4) hourly fees for KIB employees or representatives; and, (5) cost of materials or other disbursements, including phone and postage costs, required to resolve the complaint or answer the question. 9.03 Unpermitted Waste Screening (or Recyclables if Applicable). a. Protocol. Contractor will develop and implement an Unpermitted Waste (or recyclables if applicable) Screening Protocol in compliance with Applicable Law, which shall be submitted to KIB 60 days prior to the Commencement Date. Any amendments to Contractor's Unpermitted Waste Screening Protocol shall be subject to approval by KIB priorto implementation. 19 Page 132 of 329 Discussion Of Contract No. FY2019-25B, Amendment #2, Residential And Com... AGENDA ITEM #2.a. Contract No. FY2019-25 b. Inadvertent Delivery of Unpermitted Waste to KIB Landfill. If Contractor inadvertently delivers Unpermitted Waste (or recyclables if applicable) to a Solid Waste Management Facility, Contractor will use its best efforts to identify the Customer that discarded the Unpermitted Waste (or recyclables if applicable) and cooperate with the Solid Waste Management Facility in any related investigations. Contractor will contact any identified Customer and provide that Customer with information on safe disposal of Unpermitted Waste (or recyclables if applicable). 9.04 Contract Service Exceptions. a. Collection Exception. Contractor shall not be obligated to Collect any Solid Waste in the event of any Contract Service Exception, as defined in Section 23 of thisAgreement. b. Notice of Non -Collection. If Contractor does not Collect any Solid Waste (or recyclables if applicable) due to a Contract Service Exception, Contractor must complete and leave a Non- Collection Notice securely attached to a container at or near the Set -Out Site; however, in the event that unsafe conditions do not permit Contractor to do so, it will instead use best efforts to immediately notify the Customer of the unsafe condition, including leaving a Non -Collection Notice on the door of the Premise, tt safe to do so, or telephoning the Customer. (1) A Non -Collection Notice with respect to Solid Waste (or recyclables if applicable) that is not properly placed inside containers must contain the following information: (1) A reminder that the Customer must place Solid Waste (or recyclables if applicable), except for Bulky Items, in a closed container; (ii) A notice that Contractor is authorized to charge the Customer the surcharge listed on the Service Fee Schedule in Section 11.01 each time the Customer sets out a container that is filled above the container rim such that it will not fully close; (iii) A notice that Contractor is authorized to charge the Customer the surcharge listed on the Service Fee Schedule each time the Customer sets out a container containing household waste that has not been placed within a bag; and, (iv) Instructions on how the Customer can acquire additional Refuse (or recycling if applicable) Containers from Contractor, including any additional surcharges, or request on-call Collection of Bulky Items. (2) A Non -Collection Notice with respect to Unpermitted Waste (or recyclables if applicable), such as hazardous waste, (items not able to be recycled within the program if applicable), or unsafe materials, 20 Page 133 of 329 Discussion Of Contract No. FY2019-25B, Amendment #2, Residential And Com... AGENDA ITEM #2.a. Contract No. FY2019-25 must describe where Customer can dispose of the Unpermitted Waste (or recyclables if applicable) or those materials, such as at the KIB Landfill or some other location as designated by KIB. (3) Promptly upon KIB request, Contractor will inform KIB of each Customer to which Contractor gave a Non -Collection Notice. 9.05 Other Special Customer Services. Upon Customer request, Contractor may provide special services in addition to any prescribed Contract Services following approval by KIB based on the following information: a. A description of services, including their proposed scope; and, b. Any additional surcharge to be charged for such service. 9.06 Contract Service Assets. a. Contractor Operations and Maintenance Facilities. (1) Location. Prior to the Contract Commencement Date, Contractor will secure possession and use of such operations and maintenance facilities, including a local Contractor Office, which shall be located on publicly maintained roads within the Borough. Contractor's Office shall be located in the KIB or City of Kodiak at the address provided in Contractor Documentation. If Contractor sites its operations and maintenance facilities in the KIB or City of Kodiak, it will do so in accordance with applicable laws, including zoning laws, with ample ingress and egress for vehicles. Contractor will maintain its facility in a neat, clean and presentable manner, including regular sweeping of related grounds for litter. (2) KIB Access. KIB and its designees shall be permitted to enter Contractor's operations and maintenance facilities or Contractor Office during Contractor Office Hours upon two (2) hours prior notice, and shall be permitted to investigate, observe, inspect and review Contractor's operations and Contract Service Assets. Contractor will make available a management representative or other authorized person to escort each KIB representative through facilities. This right does not limit KIB' s right to inspect Contractor's Vehicles. b. Refuse Containers. (1) Refuse Carts and Dumasters. Contractor will maintain at all times a sufficient number of containers to execute its obligations under this Agreement. All containers shall be on hand and ready for service no later than the date provided in Contractor Transition Plan, and shall ensure that all Carts and Dumpsters conform with the specifications described in Contractor Documentation, as approved by KIB, including Bear Carts. In addition, Contractor shall label carts with use instructions approved by the 21 Page 134 of 329 Discussion Of Contract No. FY2019-25B, Amendment #2, Residential And Com... AGENDA ITEM #2.a. Contract No. FY2019-25 KIB for any new cart user. Basic operating instructions will be hot stamped onto carts. Contractor provides no express warranty of duration for the roll carts, and Contractor's only obligation with regards thereto shall be to provide and maintain such roll carts in accordance with the contract. (2) Roll -Off Containers. Contractor will provide Rall -Off Containers no later than the date provided in the Contractor Transition Plan. Contractor may provide Roll -Off Containers that are not new if, in the sole judgment of the KIB Representative, they are in good repair and appearance. (3) Replacement Containers. Contractor will provide additional and replacement containers (other than Compactors) as necessary to ensure that Customer always has a container. (4) Inventory. Contractor will prepare a preliminary inventory of Refuse Carts and Dumpsters that Contractor will acquire or supply as required by the Transition Plan as Contractor Documentation. In its next Monthly Report following delivery of any Cart as required by the Transition Plan, Contractor will complete and finalize the inventory. In each Annual Report following completion of the Transition Plan, or within ten (1D) business days upon request by KIB, Contractor will update the inventory to reflect acquisition or replacement of Refuse Carts and Dumpsters, accompanied by a representation and warranty signed by Contractor that all Refuse Carts and Dumpsters meet specifications. (5) Changes in Service Repair and Replacement. Contractor will exchange, remove and/or deliver containers at the time directed by KIB, and compensated by surcharges, if any, listed on the Contractor Service Fee Table, including forthefollowing: (i) Changes in Service; (ii) Repair of Damaged Containers; and, (iii) Replacement of damaged or stolen Containers. (6) Locks. Within one week of Customer direction, Contractor will provide locks on a Dumpster for the surcharges listed on the Contractor Service Fee Schedule. (7) Required Labeling for Roll Carts. Contractor will label Roll Carts with message and use instructions approved by the KIB for any new Cart user. Basic operating instructions will be hot stamped onto carts. Contractor provides no express warranty of duration for the roll carts, and Contractor's only obligation with regards thereto shall be to provide and maintain such roll carts in accordance with the contract. c. Use and Possession of Contract Service Assets. Contractor will either own each Contract Service Asset or ensure that any lease, financing documentation, rents or purchases by installment or conditional sale agreement with respect to W Page 135 of 329 Discussion Of Contract No. FY2019-25B, Amendment #2, Residential And Com... AGENDA ITEM #2.a. Contract No. FY2019-25 each Contract Service Asset allows KIB's acquisition or purchase of Contract Service Assets, pursuant to Section 3.03 of this Agreement. Contactor will provide a copy of the Contract Service Asset Document upon KIB's request. Any Contract Service Asset Document shall: (1) Permit the Guarantor to assume Contractor's obligations and to continue use of Contract Service Assets in performing Contract Services; and, (2) Permit KIB or its designee to assume Contractor's obligations and to continue use of Contract Service Assets in performing Contract Services. 9.07 Service Standards. Contractor will provide Contract Services in accordance with the following provisions: a. Litter, Spills and Leaks. (1) Litter. Contractor will ensure that each collection Vehicle carries a broom and shovel at all times so as to ensure its ability to perform its obligations with respect to material spills and liquid leaks, as provided in this section. (2) Material Spills. Contractor will only transport collected waste and recyclables in covered vehicles. Contractor will prevent materials from escaping, dropping, spilling, blowing or scattering from Vehicles during collection and transportation. Contractor will immediately remove any materials that are dropped, blown, spilled, scattered, or tracked onto any alley, street or public or private place, and dispose of such materials consistent with the requirements set forth in this Agreement. (3) Liquid Leaks. During collection and transportation, Contractor will also prevent oil, hydraulic fluid, paint or other liquid from leaking out of Vehicles. Contractor will ensure that each collection vehicle carries petroleum absorbent materials. Contractor will immediately cover leaked fluids with absorptive materials, remove those materials from the ground and apply a cleaning agent to cleanse the soiled spot. Contractor will assure that no hydraulic fluid or other liquid leaks from any Vehicle onto the pavement. If leak does occur, Contractor will immediately clean it up. b. Customer Privacy. Contractor will strictly observe and take such actions in its provision of Contract Services as are reasonably necessary to preserve its Customers' privacy rights. Contractor will not reveal information identifying individual customers or the composition or contents of a Customers waste stream to any person other than KIB, unless otherwise directed by means of a valid court order, unless required to do so by some applicable legal duty, or upon the valid authorization of the Customer. Further, Contractor will use reasonable business efforts to keep that information confidential among its own staff, consultants, representatives, agents, and any other persons acting on Contractor's behalf. 23 Page 136 of 329 Discussion Of Contract No. FY2019-25B, Amendment #2, Residential And Com... AGENDA ITEM #2.a. Contract No. FY2019-25 This provision will not be construed to preclude Contractor from preparing, participating in, or assisting in the preparation of, waste characterization studies or waste stream analyses that may be required by law. In addition, Contractor will not market, sell, convey, or donate to any person any list with the name or address of Customers. The rights accorded customers pursuant to this section are in addition to any other privacy right accorded Customers pursuant to applicable law. Contractor will use reasonable business efforts to keep information with respect to Customers and customer service information, including, but not limited to, accounts serviced, containers, special services, recyclables inventory, sales of recyclables and contaminants, confidential among staff and its consultants, if any, as permitted by applicable law. c. Vehicles and Drivers. (1) Leak -Proof Vehicles. Vehicles used in collection or transportation of recyclables must have watertight beds of metal or impervious material that can be cleaned. (2) Vehicle Identification. Contractor will ensure that its name and telephone number are clearly shown on each Vehicle, so as to indicate that it is owned and operated by Contractor. d. Pavement and Utilities. Contractor is responsible for damage to pavement and driving surfaces if collection sites are located on public or private property, other than ordinary wear and tear, if the damage is the result of vehicles exceeding the maximum weight limits allowed by applicable law or Contractor's negligent operation of vehicles. Customer or KIB may direct Contractor to promptly repair or replace damaged driving surfaces or utilities or repair and replace them itself or through a third party, to satisfaction of customer or KIB, as the case may be. Contractor will reimburse customer for his or her costs of repair or replacement and KIB or City of Kodiak the reimbursement costs of repair or replacement. Contractor is responsible for damage to public and private utilities, whether located on public streets or property or private property, if damage is the result of the inattention, carelessness or negligence of Contractor. e. Damage to Property or Personal Injury. Contractor shall not intentionally or negligently cause damage to property or personal injury in conjunction with the provision of Contract Services. Contractor agrees to repair or replace any property that sustains damage as a result of Contractor's negligence during the course of its performance of the Contract Services, whether the property is public or private, to the satisfaction of the owner, and will reimburse to the satisfaction of an injured individual, the cost of any personal injury caused by the negligent or willful acts or omissions of Contractor. Notwithstanding any rights KIB may have in such instances for breach of contract and to indemnification by Contractor, any and all disputes between Contractor and any other Person regarding damage to private property or any other injury arising out of Contractor's negligence or willful misconduct are civil matters between the 24 Page 137 of 329 Discussion Of Contract No. FY2019-25B, Amendment #2, Residential And Com... AGENDA ITEM #2.a. Contract No. PY2019-25 Contractor and that Person. 9.08 Billing and Accounting Practices. a. Customer Billing and Fee Collection. (1) Service Fees and Surcharges. Contractor will provide billing and bill collection services at the time and in a manner satisfactory to KIB, consistent with the Contractor Service Fee Schedule, Senior Discount, Adjusted Tonnage Amount, and any other fees directed by KIB. (2) KIB Fees. (i) Amount. On behalf of KIB, Contractor will charge Customers a fee or fees in the amount directed by KIB. Contractor will not separately itemize that fee or fees on invoices to Customers or any other correspondence with Customers, unless authorized by KIB. (ii) Recording Fees. Upon receipt of any Customer's payment of fees for Contract Service, Contractor will simultaneously record receipt of KIB's fees in separate accounts within Contractor's detailed general ledger. Those fees belong to KIB and not to Contractor. (iii) Remitting Fees to KIB. Contractor will remit to KIB amounts equal to KIB's fees at the time directed by KIB. Contractor may retain the remaining amounts received from Customers as compensation for fully and timely satisfying Contractor's obligations under this Agreement. b. Customer Service Subscription. (1) Form and Content. Before commencing Contract Service for a new Customer, or changing Contract Service levels or frequency for an existing Customer, Contractor will provide the Customer with a written Subscription Summary. Contractor may include a waiver of damage liability and/or Customer indemnity in connection with Collection on a Customer's private driveway or pavement in form and content satisfactory to KIB. (2) Service Requests. Contractor will accept Customer's requests for commencement of or changes in regular or special Contract Service by phone, mail, fax or E-mail. (3) Copies. Contractor will provide KIB with a copy of any Subscription Summary promptly upon request. SECTION 10: RECORDKEEPING AND REPORTING 25 Page 138 of 329 Discussion Of Contract No. FY2019-25B, Amendment #2, Residential And Com... AGENDA ITEM #2.a. Contract No. FY2019-25 10.01 Acknowledgement. Contractor understands and acknowledges that KIB shall have a right to review certain Contractor's Records, and to receive Reports, for various reasons including: a. The enforcement of Customers' rights; b. The evaluation of Contractor's performance of its duties pursuant to this Contract; c. To preserve KIB's right to performance of Contractors Performance Obligations, or to ensure that a third Person or Subcontractor performs its duties pursuant to this Contract; and, d. To confirm and/or determine the amount of any Contractor Payment Obligation 10.02 Records. a. Maintenance. Contractor will keep accurate and complete Records. b. Preservation and Retention. Unless otherwise directed by KIB, specified in this Contract, or mandated by Applicable Law, Contractor will preserve and retain all Records related to its Performance Obligations for the full Contract Term, including any extensions, and for at least two (2) years following the Termination pate. c. KIB Right to Inspection and Audit of Contractor Records. (1) Location. (i) Contractor acknowledges the KIB's right of inspection, but such inspection shall be of the KIB's own actions and efforts. (ii) Inspection or Audit at Contractor's Office. Upon at least 7 days' prior written request, Contractor will make the Records available to KIB or its designees for inspection, review or audit at Contractor Office during Contractor Office Hours. (2) Scope of KIB's Riqht to Inspect or Audit. KIB shall have a right to inspect any of Contractor's Records related to Contractors execution of its Performance Obligations at any time with reasonable notice, and to complete an audit of such Records once per Contract Year. KIB's right to inspect or audit include, but are not limited to, Records pertaining to: (i) Customer Special Service Surcharges that Contractor charged to and collected from Customers; (it) Contract Fees; 26 Page 139 of 329 Discussion Of Contract No. FY2019-25B, Amendment #2, Residential And Com... AGENDA ITEM #2.a. Contract No. FY2019-25 (iii) Tonnage of Solid Waste Collected, Processed, Diverted or Disposed; (iv) Customer complaints; and, (v) Other Records necessary to confirm Contractor's compliance with its Performance Obligations. 10.03 Reporting. a. Annual Report. Contractor will submit a complete Annual Report to KIB no later than February 15 of each Contract Year, which shall address the preceding Calendar Year. At a minimum, the Annual Report shall include the following information: (1) Number of personnel employed by Contractor during reporting period, and a description of how many personnel are assigned to specific functions (e.g., drivers, mechanics, administration); (2) Number of Vehicles by type (3) Number of Containers in service, identified by size of container; (4) Location of residential Roll -Off Containers; (5) Disposal load count, weight, and cost for C&D, Commercial MSW, Residential MSW, metal, trash; (6) Annual summary of quarterly Recycling reports; and, (7) Contractor Recommendations. b. Monthly Meeting. Contractor shall participate in a monthly meeting with KIB at a time and location of KIB's choosing. 10.04 Financial Records and Reports. a. Maintenance of Records. (1) Content. Contractor will maintain in Contractor's Office accurate and complete financial Records of the following: (i) Customer receipts; (ii) Payments to KIB (including Contractor Payment Obligations, such as any Contract Fee); and, (iii) Costs and expenses associated with satisfying Performance Obligations, 27 Page 140 of 329 Discussion Of Contract No. FY2019-25B, Amendment #2, Residential And Com... AGENDA ITEM #2.a. Contract No. FY2019-25 whether by Contractor, its Subcontractor, or another Affiliate. Contractor may maintain financial Records associated with Goods or Services provided by an Affiliate in the office of the Affiliate but will provide KIB with a copy of those Records within ten (10) days of KIB request. (iv) Form. Contractor will maintain its financial Records on an accrual basis and in accordance with Generally Accepted Accounting Principles, Such Records shall set forth financial information regarding Contractor's operations under this Contract separately from any other operations under other contracts or in other locations, as if Contractor were an independent entity providing service only to KIB. SECTION 11: CONTRACTOR SERVICE FEE AND SPECIAL SURCHARGES 11.01 Contract Service Fee Schedule. Contractor Service Fees adopted by KIB as of the Contract Commencement Date are appended for convenience of the Panties to this Agreement. KIB may amend these Fees pursuant to Applicable law, and consistent with this Agreement. Amended Fees will automatically be deemed to apply to this Contract without any further action. Contractor is deemed to have knowledge of Applicable Law, including KIB resolutions and ordinances. However, for convenience of administering this Contract, the Parties may from time to time amend this Section by attaching the most recent dated current Contractor Service Fee resolution or ordinance to this Section. In addition, if a Customer Requests Service of a capacity and/or frequency not provided in the Contractor Service Fees adopted by KIB, Contractor may charge an appropriate Fee for that service following KIB approval and Customer agreement. a. Amounts Paid by Customers for Subscribed Service. Contractor may charge Contractor Service Fees to Customers as compensation for providing Contract Services in compliance with all Performance Obligations. The Contractor Service Fee will not change except under Section 11.03. The Tonnage Adjustment Amount will be added to or subtracted from the Contractor Service Fee under Section 11.03(b). b. Amounts P a i d by KIB for Senior Discount. On each July 1 (or other day designated by KIB but no less frequently than annually) KIB will pay Contractor the aggregate amount of Senior Discounts that Contractor gave Customers during the period beginning April 1 of the prior year and ending March 31 of that year (or period commensurate with another payment date designated by KIB). PP. Page 141 of 329 Discussion Of Contract No. FY2019-25B, Amendment #2, Residential And Com... AGENDA ITEM #2.a. Contract No. FY2019-25 Contractor Service Fee For Cart Service Container Monthly Service Fee Senior Discount 95 -gallon Bear -Resistant Roll Cart $49.95 $42.95 (-$7.00) Each additional Roll Cart $49.95 $42.95 (-$7.00) Residential Roll -Off or Roll Off Rate Per Size Roll Off Rate Per Size Additional Set -Out Fee No Charge No Charge Page 142 of 329 Discussion Of Contract No. FY2019-25B, Amendment #2, Residential And Com... AGENDA ITEM #2.a. Contract No. FY2019-25 Contractor Service Fee Surchar es for Services SHALL NOT EXCEED . _ Activity Contractor Service Fee (per occurrence) On call Collection of Bulky Waste $20.00 per call (not item) plus Direct Cost Number of Dumpsters (Scheduled Tips Per Week) 2 3 4 5 of Disposal Distance Charge $3.50 per mile beyond United States Coast $624.28 Guard base Rollout Service for Non -Eligible $7.36 Customers - Initial 30 feet or fraction $833.88 Rollout Service for Non -Eligible $6.13 Customers - Each additional 30 feet $486.81 $730.23 Beginning 7 months after Collection $25.00 plus Direct Cost of Cart Commencement Date, replacement of $287.96 Cart in excess of once per calendar $1151.84 year 4 cubic yards Bear lock for Customers in portion of Contractor to provide all bear resistant roll Contract Service Area not required to carts - No initial Customer Charge have bear locks $372.43 Lock on dumpster $25.00 to install, no charge thereafter Collection of residential material that $6.87 does not fit in roll -cart $799.64 $1199.46 Residential Roll -Off or Dumpster $5.00 Clean-up Costs $427.21 30 Page 143 of 329 Discussion Of Contract No. FY2019-25B, Amendment #2, Residential And Com... Contractor Monthly Service Fee for Duinpstitt Dumpster Size* 1 Number of Dumpsters (Scheduled Tips Per Week) 2 3 4 5 2 cubic yards $156.07 $312.15 $468.21 $624.28 $780.35 2.6 cubic yards $208.47 $416.95 $625.41 $833.88 $1042.35 3 cubic yards $243.41 $486.81 $730.23 $973.64 $1217.05 3.6 cubic yards $287.96 $575.91 $863.88 $1151.84 $1439.80 4 cubic yards $317.66 $635.31 $952.98 $1207.64 $1588.30 5 cubic yards $372.43 $744.87 $1117.29 $1489.72 $1862.15 5.5 cubic yards $399.82 $799.64 $1199.46 $1599.28 $1999.10 6 cubic yards $427.21 $854.42 $1281.63 $1708.84 $2136.05 8 cubic yards $544.36 IS1088.73 1 $1633.08 $2177.44 $2721.80 *Contractor Service Fee for multiple Dumpsters is equal to the above scheduled amounts multiplied by the number of Dumpsters 30 Page 143 of 329 Discussion Of Contract No. FY2019-25B, Amendment #2, Residential And Com... AGENDA ITEM #2.a. Contract No. FY2019-25 Contractor Service Fee Surcharges for Dumpsters Service Description Agreement Section Amount Change in size and number of Dumpster more frequently than once per Contract Year Section 6.02 $0.00 per exchange per Dumpster Locks on Dumpster Section 6.02 $25.00 one-time fee Contractor Monthly Service Fee for Roll -Off Service 10-20 cubic 30-40 cubic 10-20 cubic yard 30-40 cubic yard yards yards Compactor Compactor $161.44 per $214.69 $161.44 per haul plus $214.69 per haul plus haul plus disposal fee disposal fee plus $21.25 disposal fee plus $21.25 disposal fee plus disconnect fee (if disconnect fee (if disposal fee applicable) applicable) Contractor Monthly Service Fee for Cardboard Recycling Service 10 cubic yards 20 cubic yards 30 cubic yards 40 cubic yards $161.44 fee per pull $161.44 fee per pull $214.69 fee per $214.69 fee per 1 pull 11.02 Contractor's Cost Covered By Service Fee. a. The Contractor Service Fee includes all Contractor's direct costs, indirect costs, as well as any profit or return on investment for providing Contract Services, including the following: (1) Labor, including wages and fringe benefits, drivers, Customer service personnel, supervisors, and administrators; (2) Acquisition, repair and maintenance of Contract Service Assets, including buildings grounds, and Vehicles; (3) Tools and supplies; (4) Fuel and utilities; (5) Insurance premiums and fees for the Letter of Credit or any further 31 Page 144 of 329 Discussion Of Contract No. FY2019-25B, Amendment #2, Residential And Com... AGENDA ITEM #2.a. Contract No. FY2019-25 assurance of performance; (6) Taxes; (7) Securing and maintaining Permits and complying with Applicable Law; (8) Fines and penalties for violation of Permits or Applicable Law; (9) Handling Unpermitted Waste discovered in Solid Waste, including disposal thereof as required by Applicable Law; (10) Negligence or misconduct; (11) Fees imposed by Regulatory Agencies, including any Contract Fee; (12) Fees charged by Solid Waste Management Facilities, such as tipping fees a KIB Landfill; and (13) Any other costs associated with the provision of Contract Services not explicitly compensated by surcharge to Customer or charge to KIB. b. Contractor Service Fee is not adjusted for changes in these costs, except under Section 19.03. Reference in this Contract to providing Contract Services "without surcharge" or similar language does not infer that absence of those words, "without surcharge", elsewhere in this Contract, means that Contractor is entitled to either of the following: (1) compensation in addition to the Contractor Service Fee listed on the Contractor Service Fee Schedule; or, (2) reimbursement of Direct Costs or Contractor's Reimbursement Costs. 11.03 Adjustment of Contractor Service Fee. a. Adjustment events and timing. The Contractor Service Fee will be upon direction of the KIB, in its sole discretion. b. Annual Adjustment. On July 1, 2020, and each following July 1, the Contractor Service Fee will be adjusted so as to make it equal to the Contractor Service Fee that is in effect during the prior Contract Year (or portion of that Contract Year), plus or minus the Weighted Adjustment Percentage times that Contractor Service Fee. Between April 1 and April 15 of each Contract Year, Contractor will prepare a statement setting forth Contractor's detailed calculation of Contractor's requested annual adjustment in Contractor Service Fee in the form of the following examples or other format prescribed by KIB (see, for example, s u b s e c t i o n h ). Contractor's statement is for convenience of KIB but is not 32 Page 145 of 329 Discussion Of Contract No. FY2019-25B, Amendment #2, Residential And Com... AGENDA ITEM #2.a. Contract No. FY2019-25 binding on KIB. KIB may make corrections or adjustments to that statement. The method used to calculate the annual service fee adjustment is set forth in the following subsection c. c. Calculation of Annual Service Fee Adjustment. The annual adjustment will be calculated for five Collection Rate Cost Components and Recycling as follows: (1) Collection & Administrative Cost Component: Annual Chancres in the CPI. The operational component identified by the Contractor for each level of service will be adjusted by 75% of the CPI percent change from second half of one year to the next (i.e., from the second half of year n-1 to the second half of year n, with n being the most current year available), but no greater than 5%, as confirmed by KIB. "CPP" means the second half consumer price index (CPI -U) for Anchorage, Base Period 1982-84=100, Series ID: CUUSA427SAO, not seasonally adjusted, as published by the U.S. Department of Labor, Bureau of Labor Statistics at www.bis.gov. (2) Fuel Cost Component: Annual Changes in the PPI. The fuel component identified by the Contractor for each level of service will be adjusted by 75% of the PPI percent change from February to February (i.e. from February of year n-1 to February of year n with n being the c urrent year), but no greater than 5%, as confirmed by KIB. "PPP" means the annual Producer Price Index for No. 2 diesel fuel, Base Period 1982=100, Series ID: WPU057303, not seasonally adjusted, as published by the U.S. Department of Labor, Bureau of Labor Statistics at www.bls .gov. (3) Fixed Cost Component: No Change Over the Initial Contract. The fixed costs identified by the Contractor for each level of service will not be adjusted and remain constant over the term of the initial contract. These costs include, but are not limited to vehicle depreciation, leases, cart and container rent (as necessary to maintain containers provided to Contractor at the start of this contract, and for any new containers purchased by the Contractor). (4) Disposal Cost Component: Change in Disposal Fee and To_ nnane Per Customer. The disposal cost identified by the Contractor for each level of service will be adjusted by 100% of the change, if any, in the tonnage rate charged Contractor at KIB Landfill (compared to the rate in effect on April 15, 2018), and for the change, if any, in the ratio between tons disposed and the number of customers served (compared to the ratio as calculated on April 15, 2018). (5) Profit: No Chane Over the Initial Contract. The percentage of profit (operating margin) identified by the Contractor for each level of service 33 Page 146 of 329 Discussion Of Contract No. FY2019-25B, Amendment #2, Residential And Com... AGENDA ITEM #2.a. Contract No. FY2019-25 will not be adjusted and remain constant over the term of the initial contract. Profit is calculated as a percentage of the total Collection rate. (6) Recycling: Annual Chancres_ in the CPI. The Contractor Service Fee for Recycling will be adjusted by 75% of the CPI percent change, if any, from second half of one year to the next (i.e., from the second half of year n-1 to the second half of year n, with n being the most current year available), in the CPI during the period commencing April 1 of the previous year and ending March 31 of the current year, but no greater than 5%, as confirmed by KIB. d. Summary of Service Fee Adjustments. The following table summarizes the Contract Service Fee adjustments for each Collection Rate Cost Component: Rate Cost Component 1) Collection and Administrative Costs Cost PPI Tonnage rate and tons per customer Rate I Sum of Above e. Adjustment for Changes in Operations. As soon as possible following agreement of the Parties under Section 14, the Contractor Service Fee will be adjusted for a change in Contractor's Direct Costs of providing Contract Services due to changes in Performance Obligations. To the extent permitted by Applicable Law, an adjustment will reflect Contractor's costs from the date incurred. The Contractor Service Fee will not otherwise be adjusted (for example, no adjustment will occur for any changes in the price of fuel). f. Rounding. (1) Calculations. Interim calculations shall be rounded to the nearest hundredth i.e., 0.499 and 0.510 shall be rounded to 0.50, excepting percentage changes used in calculations, which shall be rounded to the nearest hundredth percent i.e., 0.50% (2) Dollars. The final adjustment in Contractor Service Fee shall be rounded to the nearest penny. g. No Adjustment if Any Breach or Default Remains Uncured. The Contactor Service Fee will not be adjusted upwards if Contractor has Breached this Agreement or Defaulted on any Performance Obligation, and such Breach or Default remains uncured: 34 Page 147 of 329 Discussion Of Contract No. FY2019-25B, Amendment #2, Residential And Com... AGENDA ITEM #2.a. Contract No. FY2019-25 h. Example Calculations of Annual Adjustments in Contractor Service Fee. The following is an example of how annual adjustments to the Contractor Service Fee will be calculated. The escalation, tonnage, and dollar amounts shown are examples only. (1) Annual adiustment of Collection and Administration Cost Component Due to Change in CPI. Calculation of % 2nd half, current year -1 223.83 change in CPI 2nd half, current year - 2 220.62 Percent Change 1.45% (not more than 5%) Portion of % 75% 1.09% change (2) Annual Adjustment of Fuel Cost Comgonent Due to Change in PPI. Calculation of February, current year 120.5 change in PPI February, current year - 122.3 Percent Change -1 .47% (not more than 5 /o Portion of % 75% -1.10% change 35 Page 148 of 329 Discussion Of Contract No. FY2019-25B, Amendment #2, Residential And Com... AGENDA ITEM #2.a. Contract No. FY2019-25 (3) Disposal Cost Adjustment EXAMPLE ONLY MBase 2018 2019 2020 2021 e Rate Adjustment onnage Rate ($/ton $362ro osal submitted 2 Tonnage Rate in next contract $398 $398 $398 ear Ju 1 - June 30 3 Percent increase (decrease) =4.651 % 8.53% 8.53% from contract start Disposal Ton -per -Customer Adjustment 4 Prior year tons, actual 8,588.19 8,766.58 8,843.25 8,972.45 Janua 1 - December 31 5 Customer actuals (as of April 3,115 3,150 3,245 3,240 1 6 Ratio, tons 1 custoer 2.757 2.783 2.725 2.769 m 7 Percent increase (decrease) 0.94% -1.16% 0.44% from contract start Disposal Cost Component Ad ustme effective Ju 1 8 (1 + Row 3) x (1 + Row 7) -1, 5.64% 7.27% 9.01% rounded to hundredths 9 Disposal Cost Component $14.83 $15.67 $15.91 $16.17 Note: Green cells are the contract start, which is used as the basis for calculations in all future years. Yellow cells are data that would be input each year based on tonnage rate, customer accounts, and scale house records. tons and customers refer to residential accounts + commercial dumpsters. The number of commercial "customers" refers to the number of containers in service. It excludes commercial roll offs where customers are billed for the actual cost of disposal. All numbers shown are examples (not actuals) shown for illustrative purposes. In this example, the disposal component of rates in initial proposal would be adjusted by 5.64% to take effect on the contract start date. The initial proposal rates would be adjusted by 7.27% and would take effect on July 1, 2020, and 9.01% on July 1, 2021. 3E Page 149 of 329 Discussion Of Contract No. FY2019-25B, Amendment #2, Residential And Com... AGENDA ITEM #2.a. Contract No. FY2019-25 (4) Example Application of Annual Update to Rate Components. Cost Components Rate Component Proposed Rate Next Year Adjustment Method Rate Adjustments Rate Collection and Administrative Costs CPI $13.57 $0.15 $13.72 Fuel Fuel PPI $3.30 ($0.04) $3.26 Fixed (rent, depreciation, lease No Inflators $9.00 $0.00 $9.00 Disposal Cost (Pass Tonnage rate and $14.83 $0.84 $15.67 Through) tons/customer Subtotal $40.70 $0.95 $41.65 Profit (7.5% of Rate) $3.30 $0.08 $3.38 Example Rate 1 m $44.00 $1.03 $45.03 (5) Adjusted Contractor Service Fee. The adjusted contractor service fee will be the current rate plus the sum of the rate adjustments. SECTION 12: MISCELLANEOUS PERFORMANCE OBLIGATIONS 12.D1 Compliance With Applicable Laws. a. In General. All actions taken by Contractor under this Contract shall comply with all Applicable Laws. No Performance Obligation may be construed to relieve Contractor of any obligations imposed by Applicable Law. Contractor shall acquire and maintain in good standing all permits, licenses, and other entitlements necessary to complete its Performance Obligations. If a Permit issued by KIB remains in effect after the expiration or termination of this Contract, Contractor nevertheless may not operate within KIB for collection of Solid Waste formerly collected under this Contract. THIS PROHIBITION WILL SURVIVE THE TERMINATION OF THIS CONTRACT and KIB may seek specific enforcement of this prohibition pursuant to the provisions of this Agreement and as otherwise authorized by law. At least 60 days prior to the Contract Commencement Date, and thereafter as requested, Contractor shall promptly deliver to KIB copies of any and all Permits, as well as other documentation, sufficient to evidence that Contractor has complied with all permitting and licensing requirements mandated by Applicable Law. Contractor shall pay all taxes pertaining to its Performance Obligations under this Contract. b. No Limitation on Duty to Comply. References in this Contract to particular provisions or requirements of Applicable Law may not be construed to limit Contractor's obligation to comply with all provisions of Applicable Law. Those references are intended to facilitate Contractor's satisfaction of its Performance Obligations and KIB's administration and specific enforcement of this Contract. Those references may not be construed to constitute lack of Contractor obligation to comply with other provisions or requirements of 37 Page 150 of 329 Discussion Of Contract No. FY2019-25B, Amendment #2, Residential And Com... AGENDA ITEM #2.a. Contract No. FY2019-25 Applicable Law that are not specifically referred to or cited in this Contract. if any provision of this Contract is more stringent than Applicable Law, Contractor will comply with that provision. c. Fines and Penalties. Contractor is solely liable for all fines and penalties that are imposed due to Contractor's actions, including fines and penalties that are the result of Contractor's Violation of Applicable Law. Contractor will not seek reimbursement from KIB or any Customer for any fines or penalties so imposed. Contractor will inform KIB within 24 hours upon receiving any violations, fines orpenalties. d. Contractual Obligations. All Applicable Laws are incorporated in this Contract by reference as if set forth fully herein, and Contractor's compliance with such shall be construed as part of Contractor's Performance Obligations. If any Applicable Law is inconsistent with this Contract, the more stringent will apply. (1) Breaches. In addition to or in lieu of prosecuting violations of the KIB Code as misdemeanors, infractions, or other manner provided under the KIB Code, KiB may enforce Contractor's obligations under Applicable Law (including the KIB Code) in the same manner as it may enforce Contractor's other contractual obligations under this Contract (including specific performance and as Breaches subject to cure), whether or not noncompliance with those provisions of Applicable Law has become a Violation. Neither prosecution of Contractor for noncompliance with Applicable Law nor enforcement of Applicable Law shall be a condition precedent to enforcing those Performance Obligations. in determining whether or not Contractor is in noncompliance with those provisions, the standard of proof applicable to breach of contract will apply. KIB has no obligation to enforce any Applicable Law. (2) Violation. Contractor's Violation of Applicable Law is a Default subject to contest pursuant to Section 15 of this Contract. e. KIB's Protection of Public Safety, Health, and Welfare. Contractor acknowledges that KIB is authorized to make all necessary and reasonable rules and regulations regarding all aspects of MSW Management Services to protect the public's health, safety, and welfare. No provision in this Contract may be deemed to limit KIB's power to take any action that KIB, in its sole discretion, deems necessary or appropriate to protect the public's safety, health, and welfare. f. Compliance With KIB Code. Contractor must comply with the KIB Code, subject to possible adjustments in Contractor Service Fee in the event of Changes in Law. Contractor warrants and represents that it is fully acquainted with the provisions of KIB Code. Contractor must pay Liquidated Damages with respect to non-compliance with specified provisions of the KIB Code, including failure to remedy any Violation of KIB Code within five (5) days of the date of notice of Violation, and in the event of conviction of a Violation. 38 Page 151 of 329 Discussion Of Contract No. FY2019-25B, Amendment #2, Residential And Com... AGENDA ITEM #2.a. Contract No. FY2019-25 g. Inspection or Audit at Contractor's Office. Upon at least 7 days' prior written request, Contractor will make the Records available to KIB or its designees for inspection, review or audit at Contractor Office during Contractor Office Hours. 12.02 Contractor's Personnel. a. Identification, Appearance, and Conduct. Contractor will train and require each of its personnel to present a neat, tidy and orderly appearance, and shall require those personnel responsible for Collecting, Delivering, and Disposing of Refuse or Recyclables to wear uniforms and safety vests identifying them as Contractor's employees. Employees shall be directed to conduct themselves in a courteous manner, refrain from using loud or profane language while on duty, and to perform Collection in as quiet a manner as possible. b. No Gratuities. Contractor will not permit its personnel to demand or solicit, directly or indirectly, any additional compensation or gratuity from any Customer or member of the public. c. Compliance with OSHA. Receipt of a citation or failure -to -abate notice from the State Division of Occupational Safety and Health or any other similar Regulatory Authority shall constitute a Breach of this Agreement. 12.03 Communication With KIB. a. KIB Point of Contact. All official communications from Contractor to KIB regarding this Agreement, or any of the Parties' respective rights and obligations thereunder, shall be directed to the Project Manager. b. Responsiveness to KIB. (1) Telephone Calls. Contractor will return any telephone calls it receives from KIB, to the individual who made that call, no later than the next KIB Business Day. (2) Meetings. Within one week of oral or written direction by KIB, Contractor will meet with KIB during KIB Office Hours at the location directed by KIB. (3) E -malls. Contractor will respond to all e-mails from KIB within two (2) Ki B business days. (4) Written Correspondence. Contractor will respond to written correspondence from KIB within one week of receipt, or at such other time as may be specified by KIS. SECTION 13: INDEMNIFICATION, INSURANCE, LETTER OF CREDIT 39 Page 152 of 329 Discussion Of Contract No. FY2019-2513, Amendment #2, Residential And Com... AGENDA ITEM #2.a. Contract No. FY2019-25 13.01 Indemnification. a. Contractor's Agreement to Indemnify KIB. To the extent allowable under Applicable Law, Contractor agrees that it will Indemnify and hold harmless, defend with counsel approved by KIB, and release KIB and KIB's Related Parties from and against all Liabilities and Losses paid, incurred or suffered by, or asserted against, KIB or KIB's Related Parties arising out of or in connection with this Contract, including in connection with any alleged failure of KIB or KIB's Related Parties to enforce provisions of this Contract or of Applicable Law. Contractor understands and acknowledges that this is intended to operate as an agreement pursuant to 42 U.S.C. Section 9607(e), and any corresponding provisions of the laws of the State of Alaska, to insure, release, protect, hold harmless and indemnify KIB from Liabilities and Losses set forth herein. b. Indemnity for Liabilities and Losses Arising from Contract Services. Contractor's Indemnity is limited to Liabilities and Losses resulting from Contract Services provided by Contractor from the Contract Commencement Date through the Termination Date. However, CONTRACTOR'S OBLIGATIONS UNDER THIS SECTION SHALL SURVIVE THE EXPIRATION OR TERMINATION OF THIS CONTRACT. c. Reimbursement of Enforcement Costs. If Contractor fails to pay any indemnities and that failure results in any costs to KIB, within fifteen (15) days of KIB request, Contractor will pay KIB's Reimbursement Costs. 13.02 Required Insurances. a. Coverage Requirements. Without limiting its Indemnities, Contractor will secure and maintain insurance coverage meeting the requirements in this Section. KIB may require Contractor to secure and maintain larger amounts or types of coverage if it compensates Contractor the Direct Costs of the additional premium for that coverage under Section 11.02. Contractor may use a combination of primary and excess insurance coverage to satisfy these requirements. KIB may reduce insurance requirements if it determines that the reduction is in KIB's best interest. Each liability policy must provide contractual liability coverage for Contractor's Indemnities, including any necessary endorsement, schedule or other documentation. (1) General Liability Insurance. Written on ISO policy form CG 00 01 (occurrence) or its equivalent (and not CG 00 02 claims made) with limits of not less than the following: General Aggregate: $4 million Products/Completion Operations Aggregate: $4 million Personal and Advertising Injury: $1 million Each Occurrence $2 million (2) Liability Coverage for Pollution Conditions Resulting from Transported 40 Page 153 of 329 Discussion Of Contract No. FY2019-25B, Amendment #2, Residential And Com... AGENDA ITEM #2.a. Contract No. FY2019-25 Cargo. With a limit of not less than $2 million per occurrence covering Liabilities and Losses that the Contractor becomes legally obligated to pay as a result of claims for bodily injury, property damage, cleanup costs and other fines, fees or expenses assessed by federal or state agencies, KIB, or third parties, which result from pollution conditions caused by transported cargo, including waste. For the purposes of this subsection, 'pollution conditions" includes the dispersal, discharge, release, or escape of any solid, liquid, gaseous or thermal irritant or contaminant - such as smoke, vapors, soot, fumes, acids, alkalis, toxic chemicals, medical waste, and waste materials - into or upon land, any structure on land, the atmosphere, or any watercourse or body of water, including groundwater, provided the conditions are not naturally present in the environment in the amounts or concentrations discovered . Contractor's general liability policy may be endorsed to provide for this pollution liability coverage. (3) Automobile Liability Coverage. Such insurance coverage shall be: written on ISO policy forms CA 00 12 or CA 00 20 (or their equivalent) with a limit of liability not less than $2 million for each accident; endorsed to delete the pollution and/or the asbestos exclusion and include pollution liability (using form CA 99 48 or its equivalent) for accidental spills and discharges while transporting and/or processing materials; and, must cover all Vehicles that Contractor operates on public roads. (4) Financial Responsibility. Coverage. If Contractor is subject to federal regulations, Contractor also will maintain any other coverage necessary to satisfy state orfederal financial responsibility requirements. (5) Workers' Compensation and Employers' Liability.. Contractor shall maintain coverage that meets the following requirements: (i) Workers' compensation benefits required by Applicable Law (including the State Labor Code or by any other state labor law), and for which Contractor is responsible; and, (ii) Employers' Liability coverage with limits of not less than the following: Each accident: $1 million Disease - policy limit: $1 million Disease - each employee: $1 million b. Insurer qualifications. Contractor will secure insurance provided by an insurer that: (1) Is deemed acceptable by KIB; (2) Is an admitted company authorized to do business in the State of Alaska; 41 Page 154 of 329 Discussion Of Contract No. FY2019-25B, Amendment #2, Residential And Com... AGENDA ITEM #2.a. Contract No. FY2019-25 (3) Has a size category of VII or larger by AM. Best Company, Inc.; and, (4) Hasa rating of A or better by AM. Best Company, Inc. c. Insurance Coverage Requirements for Subcontractors. Contractor will insure each Subcontractor performing Contract Services or transportation of Solid Waste by providing evidence that either: (1) Contractor is maintaining insurance required by this Section covering the activities of the Subcontractor; or, (2) The Subcontractor is maintaining that insurance itself d. Evidence of Coverage. Contractor will provide certificates of insurance, endorsements, schedules and other evidence of insurance coverage requested by and acceptable to KIB at the following times: (1) On or before the Contract Commencement Date, (2) With submission of each Annual Report, (3) Promptly upon renewal of policies, and (4) Within ten (10) days of KIB's request. e. Certificates of Insurance. Contractor will provide certificates (or other evidence of coverage) containing, at a minimum, the following information with respect to Contractor and any Subcontractor, (1) Contract Name. Certificates of Insurance must explicitly identify this Contract (for example, UNDER DESCRIPTION OF OPERATIONS), and if necessary to secure contractual liability coverage as an "insured contract" or otherwise, including a schedule or endorsement that specifically identifies this Contract; (2) Policy Details. Coverage type(s), policy numbers, policy effective and expiration dates, policy limits, and identification of each required insurance services office (ISO) policy form or confirmation of its equivalency to ISO policy forms required under this Contract (such as "auto liability ISO form CA 00 1Z'). Where this Contract does not require a specific ISO policy form, the certificate of insurance must specifically reference the required type of coverage (such as "pollution liability" under TYPE OF INSURANCE — OTHER) together with a summary description of its coverage (such as pollution conditions caused by transported cargo" under SPECIAL PROVISIONS); (3) Thirty -Day Cancellation Notice Reauirement. Certificates of Insurance shall contain the express condition that KIB must be given 42 Page 155 of 329 Discussion Of Contract No. FY2019-25B, Amendment #2, Residential And Com... AGENDA ITEM #2.a. Contract No. FY2019-25 written notice by mail at least thirty (30) days in advance of cancellation for all policies evidenced on the certificate of insurance. Endorsements cannot contain mere "best effort" modifiers or relieve the insurer from its responsibility to give that notice and the CANCELLATION information on the certificate of insurance must delete language such as "failure to do so shall impose no obligation or liability of any kind upon the insurer, its agents or representatives". (4) Deductibles and Self -Insured Retentions. Certificates of Insurance shall identify any deductible and self-insured retention. Upon KIB request, Contractor will reduce any self-insured retention as it applies to KIB or provide a letter of credit, certificate of deposit or other financial assurance acceptable to KIB guaranteeing payment of all retained losses and related costs and expenses related to investigations, claims administrations, and legal defense. The letter of credit or certificate of deposit must be provided by a bank satisfactory to KIB; and (5) Claims Made. If KIB waives the prohibition on procuring claims made policies and insurance coverage is written on a claims -made form, then evidence is required that the "retro date" is before the Contract Commencement Date. Contractor must maintain that coverage for at least five (5) years after the Termination Date (or longer as required under this Contract). Promptly upon KIB request, Contractor must provide KIB with evidence of that coverage. THIS PROVISION SURVIVES THE TERMINATION OF THIS CONTRACT. E Endorsements. Contractor must provide copies of the following endorsements or other documentation with respect to Contractor and any Subcontractor satisfactory to KIB: (1) Additional insured endorsement to each liability policy, explicitly adding KIB and its "officers, agents, and employees" as an additional insured party; (2) Waiver of subrogation; (3) Establishing Contractor's insurance as primary, with respect to all liabilities arising from Contractor's performance of any and all Contract Services; and, (4) Providing dedicated limits under a liability policy in favor of KIB as an additional insured. g. Schedules. Contractor must provide schedules or other evidence that liability policies of Contractor and any Subcontractor provide contractual liability coverage for Indemnities, such as listing this Contract as an "insured contract". h. Signature verification. At KIS' s request, Contractor must provide 43 Page 156 of 329 Discussion Of Contract No. FY2019-25B, Amendment #2, Residential And Com... AGENDA ITEM #2.a. Contract No. FY2019-25 documentation verifying that the individual signing or countersigning the certificates, policies, endorsements, or other evidence of coverage of Contractor and any Subcontractor is authorized to do so and identifies his or her company affiliation and title. KIB may require complete, certified copies of Contractor's insurance policies at anytime. Notice of claims. If any Person makes a claim against Contractor or any Subcontractor exceeding the amount of any deductibles or self-insured retentions, Contractor will promptly notify KIB of the claim. j. Contractor accounting. Contractor will institute a comprehensive accounting system satisfactory to KIB to monitor all insurance requirements under this Contract, including those of each of its Subcontractors. k. Contractor compliance. Contractor will comply with all requirements of its insurance policies and insurers. 13.03 Payment Security. Contractor shall provide the following to ensure payment of disposal fees and reimbursement of billing costs incurred by KIB in the event of a Default or Breach by Contractor: a. Performance Bond. Contractor shall provide a Performance Bond to KIB issued by an insurance company approved by KIB to secure payment of delinquent disposal fees in the following principal amounts: (1) During the first contract year: $348,000.00 (2) During the second contract year: $382,000.00 (3) During the remainder of the contract term: an amount equal to 3 months of the average disposal fees paid during the previous contract year. b. Pledged Bank Account. Contract shall deposit with a Bank approved by KIB the sum of $55,000.00 to be used to reimburse KIB for costs it may incur in billing refuse Customers in the event of a Default or Breach by Contractor under this Agreement. KIB shall be named as the only party authorized to make withdrawals from the account, and Contractor shall direct the Bank that holds the account to deliver monthly statements to KIB. Any interest on the account shall be payable to the Contractor. c. Payment Upon Default. (1) In the event that Contractor fails to pay disposal fees when due, or is otherwise in Breach or Default of this Agreement, KIB may draw upon the Performance Bond, in one or more drawings, any amounts of money due to KIB but unpaid. (2) KIB may draw on the Pledged Bank Account, in one or more drawings, any 44 Page 157 of 329 Discussion Of Contract No. FY2019-2513, Amendment #2, Residential And Com... AGENDA ITEM #2.a. Contract No. FY2019-25 reasonable expenses incurred by KIB in the event that, due to Contractor's Default or Breach, KIB assumes responsibility for issuing billing statements to Customers for refuse services. d. Return of Security. 1) The Performance Bond shall terminate, and amounts in the Pledged Bank Account may be paid to Contractor, no earlier than the date upon which KIB issues a certificate stating that: (i) This Contract has expired; or, (ii) This Contract has been terminated for a period of 180 days or such other preference period provided under applicable law with respect to Contractor's bankruptcy or insolvency; or, (iii) Contractor has substituted an alternative letter of credit or other security document that KIB, in its sole discretion, has deemed acceptable; and, (iv) Contractor has paid to KIB all amounts to which it is entitled under this Contract. e. Survival of Terms. THIS SECTION 13.03 SHALL SURVIVE THE EXPIRATION OR TERMINATION OF THIS CONTRACT. 13.04 Guaranty Agreement. Any Person that served in any way as the basis for KIB's evaluation of Contractor's financial strength and creditworthiness as part of Contractor's proposal to KIB must be made a legal, valid, and binding Guarantor of this Contract, and proof of such must be submitted to KIB in a form that KIB deems satisfactory. 13.05 Assurance of Performance. In addition to any other remedies available to KIB pursuant to this Contract or any other applicable laws, it may at its sole discretion demand from that Contractor provide reasonable assurances that it will fully satisfy any of its Performance Obligations, and that such assurances be provided by a specified date, in any of the following instances: a. Labor Unrest. Contractor is the subject of, or is otherwise affected by, any labor unrest, including work stoppage or slowdown, sick-out, picketing, lock- out, or other concerted job action, which continues in excess of six (6) days. b. Insolvency. KIB reasonably determines that Contractor is unable to regularly pay its debts as they become due, as demonstrated by Contractor's failure to pay: (1) Any tipping fee(s) at any Solid Waste Management Facility; (2) Any insurance deductibles or self-insured retention; 45 Page 158 of 329 Discussion Of Contract No. FY2019-25B, Amendment #2, Residential And Com... AGENDA ITEM #2.a. Contract No, FY2019-25 (3) Any employee's wages; and, (4) Any other bill, such that it becomes delinquent for a period of more than 60 days. c. Monetary Judgments, Penalties, or Fees. Contractor is the subject of fines, penalties, or civil or criminal judgments or orders entered by any court, federal or State agency, or Regulatory Authority, which are or are estimated to be in excess of the past three (3) months of Contractor Service Fees collected by Contractor. SECTION 14: CHANGES IN SCOPE OF CONTRACT OBLIGATIONS 14.01 Changes to Performance Obligations. a. Upon Request by KIB. KIB may request that Contractor implement a change of its Performance Obligations under this Contract. Unless otherwise directed by KIB, Contractor shall submit its proposal within ten (10) KIB Business Days. KIB may withdraw its request at any time, for any reason. b. Upon Contractor's Request. Contractor may propose a change to its Performance Obligations under this Contract by submitting a Proposal to KIB, which shall conform with the requirements of Section 14.02. 14.02 Proposal Requirements. a. Contents. In its proposal, Contractor will include such supporting documentation as KIB deems necessary, and must describe its detailed plan for implementing the requested or proposed changes, and such description shall include the following: (1) A task list and time -line implementation schedule; (2) Goods or Services, including any Subcontractor, necessary to implement the change; and, (3) Any change in Contractor Service Fee and cost substantiation therefore, including Contractor's changes in Direct Costs, taking into account both incremental Direct Costs and savings offsets, such as any: (i) Vehicle modifications; (ii) Addition of Receptacles, Vehicles, or routes; (iii) Shortening or extension of route time; (iv) Changes to personnel; and, 46 Page 159 of 329 Discussion Of Contract No. FY2019-25B, Amendment #2, Residential And Com... AGENDA ITEM #2.a. Contract No. FY2019-25 (v) Increases in transportation distance or time to a Solid Waste Management Facility. b. Contractor's Proposal Deemed an Offer. Contractor's proposal will be deemed Contractor's offer to KIB to implement the directed or proposed change. Contractor's proposal will remain binding for at least thirty (30) days from the date that it has been submitted to KIB. c. Review by KIB. (1) Response/Comments. Within thirty (30) KIB Business Days of receiving Contractor's proposal, KIB may review, approve, or disapprove the proposal, or propose amendments to it. If KIB does not respond within that time, its approval will be deemed denied. If Contractor's proposal includes a request for change in the Contractor Service Fee that must be approved by the Assembly, KIB may review, approve or disapprove the proposal within forty-five (45) days. (2) Acceptance of Comments. Contractor will accept or reject any proposed amendments within fifteen (15) KIB Business Days of receiving them. If Contractor accepts the amendments, KIB will prepare a formal amendment to this Contract that will implement the proposal. (3) Resection of Comments I Negotiations. If Contractor rejects KIB's comments, the Parties will negotiate in good faith for a period of at least fifteen (15) KIB Business Days following Contractor's receipt of KIB comments. SECTION 15: BREACH OF AGREEMENT, DAMAGES, AND DEFAULT 15.01 Liquidated Damages. a. Acknowledgements. The Parties hereby acknowledge that: (1) KIB has incurred considerable time and expense negotiating this Contract to secure an improved level of Collection and Recycling service quality, increased Diversion and increased Customer satisfaction. Therefore, consistent and reliable Contract Services are of utmost importance to KIB and Customers. (2) In awarding this Contract to Contractor, KIB considered and relied on Contractor's municipal references, experience, qualifications, and reputation as to service quality, and Contractor's Breach represents a loss of bargain to K113- (3) Quantified standards of performance are necessary and appropriate to ensure consistent and reliable Contract Service, and if Contractor fails to 47 Page 160 of 329 Discussion Of Contract No. FY2019-25B, Amendment #2, Residential And Com... AGENDA ITEM #2.a. Contract No. FY2019-25 meet Performance Obligations, KIB will suffer damages in subjective ways and in varying degrees of intensity that are incapable of measurement in precise monetary terms. The imposition of liquidated damages is not a penalty, but is instead recognition of the difficulty in ascertaining those damages that may reasonably result from Contractor's breach of its Performance Obligations. (4) Termination of this Contract for Default and other remedies provided in this Contract are, at best, a means of future correction and not remedies that make KIB whole for past Breaches. b. Non -Waiver. KIB's assessment of Liquidated Damages for Contractor's breaches does not preclude KIB from enforcing the KIB Code in the event that such breaches constitute Violations. c. Procedure. (1) Notice of Intent to Assess Liquidated Damages_ Before KIB may assess Liquidated Damages pursuant to this Section, for each category of violation (that is, for each of the categories listed in Exhibit B), KIB shall give Contractor written notice of Contractor's violation of the performance standard and of KIB's intent to assess Liquidated Damages for any future violation of the same performance standard. The purpose of this provision is to give Contractor notice that KIB considers Contractor to have violated a performance standard, and that KIB will assess Liquidated Damages if such violations are repeated. (2) Procedure for Review of Li uidated Dama es. KIB may assess Liquidated Damages pursuant to this Section monthly. At the end of each month during the term of this Agreement, KIB shall issue a written notice to Contractor ("Notice of Assessment") of the Liquidated Damages assessed and the basis for each assessment. The assessment shall become final unless, within ten (10) calendar days of the date of the notice of assessment, Contractor provides a written request for a meeting with the to present evidence that the assessment should not be made. KIB shall schedule a meeting with Contractor as soon as reasonably possible after timely receipt of Contractor's request. KIB shall review Contractor's evidence and render a decision sustaining or reversing the Liquidated Damages as soon as reasonably possible after the meeting. Written notice of the decision shall be provided to Contractor. In the event Contractor does not submit a written request for a meeting within ten (10) calendar days of the date of the Notice of Assessment, KIB determination shall be final and KIB may assess the Liquidated Damages, unless KIB waives this requirement. Liquidated damages shall be assessed according to the schedule set forth in Exhibit B. 15.02 Compensatory Damages. If Contractor fails to deliver any type of Solid Waste to a facility approved by KIB (such as a recyclables processing facility in connection with any Recyclables collection program that may be established), then in 48 Page 161 of 329 Discussion Of Contract No. FY2019-2513, Amendment #2, Residential And Com... AGENDA ITEM #2.a. Contract No. FY2019-25 addition to assessing Liquidated Damages, KIB may in its sole discretion assess the following Compensatory Damages, and Contractor will pay KIB the following Compensatory Damages: KIB's Reimbursement Costs for monitoring Contractor's compliance with its delivery Performance Obligations, including the assignment of KIB personnel to follow Collection Vehicles on Collection routes; and a. KIB's Reimbursement Cost for enforcing or securing specific performance of Contractor's delivery obligation. 15.03 Defaults. The following acts or omissions by Contractor shall constitute a Default of this Agreement. a. Contract Service Defaults. (1) Uncured Breach. Any breach of this Agreement shall be deemed to remain uncured if: (i) KIB notifies the Contractor that a Breach has occurred; and, (ii) The Contractor fails to correct that Breach within twenty (20) days of that Notice, unless KIB agrees in writing to extend the period for correction. (2) Repeated Breach. KIB determines that Contractor repeatedly or habitually Breaches its Obligations under this Contract. (3) Contract Service Failures. When not excused by a Contract Service Exception, the Contractor fails to Collect Refuse, either according to its regular schedule or by appointment, in the following amounts: (i) 100 or more missed pickups for more than seven (7) consecutive days. (ii) 500 or more missed pickups during any 12 -month period; or, (iii) At least 99.5% of pickups scheduled for a day, for more than ten (10) cumulative days. (4) Failure to Comply with Applicable Law. (i) Violations. A. Material. Contractor does not cure any material Violation of Applicable Law to the satisfaction of KIB or applicable Regulatory Authority within 30 days of the notice, assessment, or determination of that Violation of Applicable Law. B. Repeated. In KIB's judgment, Contractor repeatedly receives a notice, assessment or determination of the same or different 49 Page 162 of 329 Discussion Of Contract No. FY2019-2513, Amendment #2, Residential And Com... AGENDA ITEM #2.a. Contract No. FY2019-25 Violation. (ii) Appeals. If Contractor is entitled to appeal and in good faith does appeal a notice, assessment, or determination of Violation of Applicable Law, no Default will be deemed to have occurred until a final decision adverse to Contractor has been entered by the applicable authority. (5) Criminal Activity. Contractor fails to comply with the requirements of Section 16.02 of this Contract. (6) Failure to Timely Pay Contractor Payment Obligation. Contractor fails to pay any Contractor Payment Obligation within fifteen (15) days of the date it is due and payable. (7) Charping in Excess of the Amounts Listed in Contractor Service Fee Schedule. Contractor charges any Customer more than the scheduled Customer Special Service Surcharge listed in the Service Schedule and does not reimburse the excess within t h i r t y ( 30) days of Contractor's discovery thereof, KIB notice or Customer request. (8) Failure to allow KIB to perform Contract Services. Contractor fails to timely allow KIB to exercise any of KIB's rights in connection with performing Contract Services under Section 15.09. b. Performance Assurance Defaults. (1) Failure to Provide Adequate Assurances of Performance. Contractor fails to provide KIB with adequate Performance Assurance when requested. (2) Seizure and Attachment. Any Contract Service Asset is seized, attached or levied upon (other than a pre judgment attachment) so as to substantially impair Contractor's ability to timely and fully perform Contract Services, and which cannot be released, bonded or otherwise lifted within forty-eight (48) hours, excepting weekends and Holidays. (3) Insolvengy, Bankruptcy, and Liquidation. It shall constitute a Default of this Agreement if any of the following events occur, or the Contractor takes any actions in furtherance of such events: (i) Contractor files a voluntary claim for debt relief under any applicable bankruptcy, insolvency, debtor relief, or other similar law now or hereafter in effect, unless Contractor retains full control of Contract Service Assets throughout the pendency of that claim; (ii) Contractor consents to the appointment of or taking of possession by a receiver, liquidator, assignee (other than as a part of a transfer of Contract Service Assets no longer used to provide Contract Services or backup Contract Services), trustee (other than as security of an obligation under a deed of trust), custodian, sequestration, 50 Page 163 of 329 Discussion Of Contract No. FY2019-25B, Amendment #2, Residential And Com... AGENDA ITEM #2.a. Contract No. FY2019-25 administrator (or similar official) of Contractor for any part of Contractor's operating assets or any substantial part of Contractor's property; (iii) Contractor makes any general assignment for the benefit of Contractor's creditors; (iv) Contractor fails generally to pay Contractor's debts as they become due; (v) A court having jurisdiction enters a decree or order for relief in respect of this Contract, in any involuntary case brought under any bankruptcy, insolvency, debtor relief, or similar law now or hereafter in effect, or (vi) Contractor consents to or fails to oppose any similar proceeding; or, (vii) Any court having jurisdiction enters a decree or order appointing a receiver, liquidator, assignee, custodian, trustee, sequestrator, administrator (or similar official) of Contractor or for any part of Contractor's operating equipment or assets, or orders the winding up or liquidation of the affairs of Contractor. (4) Default under Guaranty. The occurrence of any default under the Guaranty. (5) Transfer. Contractor makes a Transfer without KIB's consent, as required by Section 17. (6) Subcontract. Contractor engages a Subcontractor or enters into a Subcontract without KIB's consent, as required by Section 18.10, and does not terminate that Subcontract within fifteen (15) KIB Business Days of KIB's Notice. c. False Representations and Breach of Warranties. (1) Under this Contract. (i) Contractor makes a representation or certification in or under this Contract, including Section 2, which Contractor knows, or in the course of diligently conducting business and providing Contract Services should have known, is untrue on the date Contractor made it. (ii) Contractor breaches a warranty under this Contract. (2) As Inducement to Enter Into This Contract. Contractor makes a representation or fails to make a disclosure, whether within this Contract or otherwise, to KIB in connection with or as a material inducement to entering into this Contract or any future amendment to 51 Page 164 of 329 Discussion Of Contract No. FY2019-25B, Amendment #2, Residential And Com... AGENDA ITEM #2.a. Contract No. FY2019-25 this Contract, which representation or failed disclosure is false or misleading in any material respect when made. 15.04 Excused Breaches and Defaults. a. Uncontrollable Circumstances. If the Contractor is unable to perform, or is delayed in its performance of any of its obligations under this Agreement by reason of any Uncontrollable Circumstances, or force majeure, such inability of delay shall be excused at any time during which compliance is prevented by such event and during such period thereafter as may be reasonably necessary for the Contractor to correct the qualifying event's adverse effects. (1) Notice to KIB. To be entitled to the benefit of this provision, the Contractor must give prompt written notice to KIB, which specifies in detail: (i) The nature and scope of the Uncontrollable Circumstance; (ii) Its expected duration; (iii) The ways in which the event will adversely affect the Contractor's performance of Contract Services; and, (iv) The steps that the Contractor is taking to mitigate such adverse effects. b. KIB's Rights. (1) Perform Contract Services. Notwithstanding that a Breach due to Uncontrollable Circumstances does not constitute a Default, after the continuance of the Breach for forty-eight (48) hours, in its sole discretion, KIB may nevertheless perform (or cause to be performed) Contract Services in the Contract Service Area itself under Section 15.09. (2) Exercise Other Remedies. After the continuance of any Breach for thirty (30) days, KIB may, in its sole discretion, exercise any other remedy under this Contract, including suspending or terminating this Contract under Section 16.01, 15.05 Remedies Upon Breach. a. As Provided by Law. Either Party may exercise any and all remedies available under law or equity to remedy the other Party's breach of this Contract. A Party's exercise of any one remedy, including KIB's assessing Liquidated Damages or Compensatory Damages, is not an election of remedies but is cumulative with any other available remedies. b. KIB's Additional Remedies. In addition to exercising any remedy available at law or equity, upon occurrence of a Default, KIB may exercise any or all of the 52 Page 165 of 329 Discussion Of Contract No. FY2019-25B, Amendment #2, Residential And Com... AGENDA ITEM #2.a. Contract No FY2019-25 following additional remedies: (1) Termination. Terminate this Contract or any portion of Performance Obligations, pursuant to Section 16.01(a); (2) Suspension. Suspend this Contract, pursuant to Section 16.01(b); (3) Perform Contract Services. KIB may itself perform Contractor's Performance Obligations, or cause them to be performed by another party, pursuant to Section 15.09; (4) Damages. Assess Liquidated or Compensatory Damages against the Contractor; and, (5) Exercise Financial Assurances. Draw on the Letter of Credit, demand payment under the Guaranty or any Indemnity, or submit any claim under Insurance. (6) Injunctive Relief. Contractor acknowledges that KIB may be also be entitled to injunctive relief in those instances where an award of damages to KIB for the Contractor's Breach or Default may be inadequate for reasons including the following: (i) Public Health and Safety. The urgency of timely, continuous and high- quality Contract Services, including Collection, Recycling, transportation and/or transfer and Disposal of putrescible solid wastes that constitute a threat to public health; (ii) Procurement Time and Expense. The long time and significant investment of money and personnel (including KIB' s staff, elected officials and KIB Counsel, as well as procurement counsel and consultants) necessary to: A. Develop a scope of Contract Services and Performance Obligations acceptable to KIB; B. Draft this Contract and related procurement documents; C. Solicit comments on this Contract and procurement documents from KIB (and KIB Counsel) and Persons interested in proposing to provide Contract Services D. Meet with those potential proposers to discuss their comments and answer their questions about this Contract and the procurement; E. Finalize this Contract and procurement documents; F. Solicit proposals for Contract Services; 53 Page 166 of 329 Discussion Of Contract No. FY2019-25B, Amendment #2, Residential And Com... AGENDA ITEM #2.a. Contract No. FY2019-25 G, Review and evaluate those proposals and seek clarifications of those proposals. H. Award this Contract under K113's Applicable Law; I. Finalize execution of this Contract, including reviewing commenting on and approving (if required) Contractor Documentation; and, J. Conform KIB Code to the automated Refuse Collection programs. (iii) Reliance on Contractor. KIB` s reliance on Contractor's meeting evaluative criteria on which award of this Contract was based, such as the following: A Solid waste management experience; B. KIB references; C. Qualifications of key personnel; D. Environmental programs and proposed Unpermitted Waste Screening Protocol; E. Litigation history; F. Contractor's proposed transition, Customer education, diversion and other plans; G. Acceptance of terms of this Contract; and, H. Diversion record. (iv) Re -Procurement Time and Expense. The length and significant investment of time and money described in item (ii) to develop alternative MSW Management Services comparable to Contract Services for the price provided under this Contract, and to negotiate new agreements therefore_ c. Recovery of Unpaid Contractor Payment Obligations. KIB may collect Contractor Payment Obligations due and owing by Contractor to KIB by any or all of the following means: (1) Demanding payment from Contractor or Guarantor; (2) Drawing on the Letter of Credit; 54 Page 167 of 329 Discussion Of Contract No. FY2019-25B, Amendment #2, Residential And Com... AGENDA ITEM #2.a. Contract No. FY2019-25 (3) Submitting claims as an additional insured under Insurance policies or under contractual liability provisions of insurance policies; and, (4) Directing Contractor to offset Contractor Payment Obligation from Contractor Service Fees that Contractor received from Customers to remit them to KIB. d. In the event of default by either party, the non -defaulting party shall provide notice of the default with specificity. No remedies for such default shall accrue unless and until the defaulting party shall have failed to cure said default within 10 days of receipt of such written notice of default, save and except situations that may impact public health or safety, the environment, or may be a violation of law or any provision in Section 15.03 which gives greater than 10 days to cure such particularly identified event of default. 15.06 Additional Compensatory Damages. Additional Compensatory Damages. Without limiting KIB's right to seek Compensatory Damages, pursuant to either this Contract or otherwise available at law, KIB may seek the following additional Compensatory Damages: a. Amounts equal to any Contractor Payment Obligations or other amounts that Contractor has previously paid to KIB but are subsequently recovered from KIB by a trustee in bankruptcy as preferential payments or otherwise; b. If KIB terminates this Contract for Default, KIB's Reimbursement Costs to provide or re -procure MSW Management Services; and, c. If KIB terminates this Contract for Default, KIB's projected Direct Costs of replacing MSW Management Services in excess of Contractor Service Compensation for the balance of the Term remaining if this Contract had not been terminated, as based on service fees under replacement agreements for those MSW Management Services. THIS SECTION WILL SURVIVE THE TERMINATION OF THIS CONTRACT FOR 180 DAYS OR OTHER PREFERENCE PERIOD PROVIDED UNDER APPLICABLE LAW WITH RESPECT TO BANKRUPTCY OR INSOLVENCY. KIB may draw upon the Letter of Credit, Guaranty or any other available Performance Assurance to pay compensatory damages. 15.07 Waivers. a. Waiver of Breach. No waiver of any Breach or Default constitutes a waiver of any other Breach or Default. Failure of KIB to enforce any provision of this Contract may not be construed as a waiver of KIB's enforcement rights. KlB's subsequent acceptance of any damages or other money paid by Contractor may not be deemed to be a waiver by KIB of any pre-existing or concurrent Breach or Default. 55 Page 168 of 329 Discussion Of Contract No. FY2019-25B, Amendment #2, Residential And Com... AGENDA ITEM #2.a. Contract No. FY2019-25 b. Contractor Waiver of Certain Defenses. Contractor acknowledges that it is solely responsible for providing Contract Services and by this Contract irrevocably and unconditional waives defenses to the payment and performance of its obligations under this Contract based on failure of consideration; contract of adhesion; impossibility or impracticability of performance; commercial frustration of purpose; or the existence, non-existence, occurrence or non- occurrence of any foreseen or unforeseen fact, event or contingency that may be a basic assumption of Contractor with regard to any provision of this Contract; provided that Contractor does not by this Contract waive any defenses under this Contract of Uncontrollable Circumstances. 45.08 Costs. a. Non -Prevailing Party. The non -prevailing Party in any dispute involving this Contract will pay the prevailing Party's Reimbursement Costs, including standard and reasonable attorney's fees. b. K113's Enforcement Costs. Contractor will reimburse KIB promptly upon request for either or both of the following KIB's Reimbursement Costs: (1) Costs resulting from KIB's investigation of any alleged Breach; or, (2) Costs incurred by KIB as a consequence of Contractor's Breach. 15.09 KIB Right to Perform. a. Events. KIB may perform, or provide for the performance of, any or all Performance Obligations if KIB reasonably determines that: (1) Contractor, due to Uncontrollable Circumstances or for any reason whatsoever, fails, refuses or is unable to Collect any Solid Waste and operate the Recyclables Processing f=acility for a period of forty-eight (48) hours after the Collection or acceptance was required under this Contract, and KIB determines in its sole discretion that there is a danger to the public health, safety or welfare; or, (2) KIB suspends orterminates this Contract. b. Contin uation. KIB has no obligation to continue performing or providing for the performance of any or all Performance Obligations and may at any time, in its sole discretion, cease to provide any or all Performance Obligation. However, KIB's right to perform or provide for the performance of any or all Performance Obligations will continue until either: (1) Contractor demonstrates to KIB's satisfaction that Contractor is ready, willing and able to resume timely and full performance of all Performance Obligations; or, 56 Page 169 of 329 Discussion Of Contract No. FY2019-25B, Amendment #2, Residential And Com... AGENDA ITEM #2.a. Contract No. FY2019-25 (2) KIB is capable of making alternative arrangements for providing MSW Management Services and/or Recycling service, in its judgment comparable to Contract Services in scope and price, which may include contracting with another service provider. c. Notice. KIB may give Contractor 24-hour oral notice that KIB is exercising any or all of KIB' s rights under this Section. The oral notice will be effective immediately, but to remain effective, within another 24 hours KIB must confirm that oral notice with a written Notice. d. KIB Purchase or Lease of Service Assets. Should KIB elect to exercise its authority to perform the Contract Services as provided in this Section 15.09, Contractor shall enter into good faith negotiations for the sale or lease to KIB of all Service Assets reasonably necessary to do so, consistent with Section 3.03. SECTION 16: SUSPENSION OR TERMINATION OF CONTRACT 16.01 KIB's Right to Suspend or Terminate. a. Contractor is willing to agree to commercially -standard suspension and termination provisions tied to the matters of default addressed in Section 15, but only after the right to cure period in the 16.01 f. b. Termination Events. KIB may, in its sole discretion, terminate this Contract should any of the following Termination Events occur: (1) Contractor's Default; (2) Contractor's Breach due to Uncontrollable Circumstances, which remains uncured for a period of 30 days; (3) Any Contract Provision, as defined in Section 22, is ruled unconstitutional, illegal, invalid, non-binding or unenforceable by any court of competent jurisdiction, regardless of whether it is deemed severable; or, (4) Any Guarantor transfers the Guaranty without the consent required by the Guaranty, and on or before 15 days after the transfer, the Guarantor does not provide KIB with a substitute Guarantor or alternative financial credit support satisfactory to KIB. c. Suspension Events. Upon the occurrence of any Termination Event, KIB may, in lieu of Termination, and in its sole discretion, suspend this Contract, in whole in or in part, for no longer than 30 days. During the suspension period Contractor will have the opportunity to demonstrate to the satisfaction of KIB that Contractor can once again fully perform Contract Services. If Contractor so demonstrates to satisfaction of KIB in its sole discretion, KIB's right to suspend or terminate this Contract will cease and Contractor may resume providing Contract Services. If Contractor does not so demonstrate, KIB may terminate 57 Page 170 of 329 Discussion Of Contract No. FY2019-25B, Amendment #2, Residential And Com... AGENDA ITEM #2.a. Contract No. FY2019-25 this Contract and exercise its additional rights and remedies. d. Notice to Contractor. KIB will give Contractor a Notice of Termination or Suspension effective atthe following times: (1) Immediately or upon other period stated by KIB with respect to the following Defaults, more fully described in Section 15.03: (i) Failure of Contractor to provide adequate Performance Assurances; or, (ii) Insolvency, bankruptcy, liquidation, to the extent permitted by Applicable Law (Insolvency, Bankruptcy, Liquidation); (2) Upon Contractor's receipt of Notice with respect to any other Default, unless KIB specifies an alternative date in the Notice; or, (3) Such other date as KIB may specify in the Notice. e. Reduction in Fee Upon Partial Suspension. If KIB suspends a portion of this Contract or the Contractor's Performance Obligations, Contractor will continue to fully perform its remaining Performance Obligations and the Contractor Service Fee will be adjusted to reflect reductions in Performance Obligations. If. Contractor's Right to Cure. Should KIB at any time, contend that Contractor has breached any material provision of this Agreement, KIB shall immediately notify Contractor in writing of KIB's contention. Contractor shalt have a reasonable time to cure any such alleged breach, which in all events shall not be less than thirty (30) calendar days, or any such longer period as reasonably needed to cure said breach, provided Contractor initiated curing the breach within such thirty (10) calendar day period unless agreed to in writing by the borough, and continues to diligently pursue such breach. If Contractor fails to cure the breach within such time, KIB may terminate this Agreement and/or pursue any other remedy provided for in this Agreement, at law or in equity. Classes of breach that are not subject to the "notice and cure" requirements — especially breaches resulting from the violation of laws, including laws governing life and safety. Contractor shall only have a right to cure if it has not committed the same breach 3 times within the preceding 12 months. 16.02 Criminal Activity. a. Notice. Contractor will immediately give Notice to KIB of either of the following with respect to Contractor or any Contract Manager (except for the Contract Manager in a Position of influence): (1) Conviction of a Criminal Activity ("Conviction"); or, 58 Page 171 of 329 Discussion Of Contract No. FY2019-2513, Amendment #2, Residential And Com... AGENDA ITEM #2.a. Contract No. FY2019-25 (2) Plea of guilty or nolo contendere to a Criminal Activity ("Plea"). Contractor will promptly give Notice to KIB of any of those convictions or pleas with respect to the Contractor Manager in a Position of Influence. b. Cure. Upon the occurrence of any conviction or plea defined in Subsection a, Contractor immediately will do or cause to be done both of the following: (1) Terminate from employment anyone in a Position of Influence or remove from office anyone in a Position of Influence, unless otherwise directed or ordered by a court or Regulatory Authority of competent jurisdiction and/or authority, and unless termination would subject Contractor, an Affiliate or any of its Contract Managers to substantial liability for breach of any labor agreement entered into before the Contract Commencement Date; and, (2) Refrain from employing or appointing that individual or individuals responsible for the Criminal Activity from any other Position of influence. c. KIB remedies. in the event that Contractor or any Affiliate fails to effectuate the cure described in Subsection b, or the Criminal Activity is related to this Contract or occurs within the KIB' s municipal boundaries, KIB may either suspend or terminate this Contract as it deems proper. d. Limitations on Contractor Manager. Contractor shall not permit any Person to serve as Contractor Manager who has previously been convicted of a Criminal Activity, or plead "guilty" or "nolo contendere" to any Criminal Activity. SECTION 17: TRANSFER OF CONTRACT. 17.01 Transfer by Contractor. a. Acknowledgment. Contractor evidence to KIB with respect qualifications to provide Contract expertise and qualifications were into this Contract with Contractor. acknowledges that Contractor submitted to Contractor's experience, expertise and Services, and that Contractor's experience, material considerations of KIB in entering b. KIB Consent Required. Contractor will not Transfer, in whole or in part, voluntarily or involuntarily, this Contract, the Guaranty, or any rights or duties in this Contract or under the Guaranty, without KIB's Assembly's prior, written consent, which consent shall not be unreasonably withheld, conditioned, or delayed. Contractor may not circumvent KIB's consent rights by securing Goods or Services from a Subcontractor. Contractor acknowledges that in its submitted proposal to provide Contract Services and enter into this Agreement it described the experience, 59 Page 172 of 329 Discussion Of Contract No. FY2019-25B, Amendment #2, Residential And Com... AGENDA ITEM #2.a. Contract No. FY2019-25 qualifications, and operations not only of Contractor itself, but of the following companies that are wholly owned by Contractor as of the Contract Commencement Date: (together, "Contractor's Operations"). Furthermore, in its proposal Contractor did not take an exception to its Performance Obligation to provide the Guaranty. Therefore, in lieu of providing the Guaranty, Contractor will not Transfer in whole or in part, voluntarily or involuntarily any of Contractor's Operations without KIB consent, given in KIB's sole discretion. For purposes of this Performance Obligation and KIB right, the definition of 'Transfer", the "Contractor" is deemed to include "Contractor's Operations. c. Contractor request. Without obligating KIB to give consent, Contactor will demonstrate to KIB' s satisfaction that the proposed transferee has the operational and financial ability to satisfy Performance Obligations. KIB is not obligated to consider any proposed Transfer by Contractor if Contractor is in Breach at anytime during KIB's consideration. d. Payment of KIB's Transfer Costs. (1) Transfer De osit. Contractor must make any request for KIB's consent to a Transfer in the manner prescribed by KIB. Contractor must pay KIB the Transfer Deposit before KIB will consider Contractor's request. "Transfer Deposit" means lesser of the following refundable amounts: (i) $1,500 or, (ii) KIB's anticipated Transfer Costs. (2) Additional Transfer Costs. Within 30 days of KIB's request, Contractor will further pay KIB's additional Transfer Costs in excess of the Transfer Deposit, whether or not that KIB approves the Transfer. "Transfer Costs" means such KIB Reimbursement Costs resulting from its: (i) Consideration and review of Contractor's request for Transfer; (ii) Investigation regarding the suitability of the proposed transferee; (iii) Determination of whether or not to consent; and, (iv) Preparation of those documents necessary to effectuate the Transfer. (3) KIB's Reimbursement Costs of Enforcement. Within 30 days of KIB's request, Contractor will pay KIB's Reimbursement Costs for fees and investigation costs as KIB deems necessary to enjoin the Transfer or to otherwise enforce this Section. e. Novation. If K113 consents to Transfer of this Contract, upon request of the transferee, KIB will execute a novation under which the Person which is the 60 Page 173 of 329 Discussion Of Contract No. FY2019-25B, Amendment #2, Residential And Com... AGENDA ITEM #2.a. Contract No. FY2019-25 transferee Contractor assumes all the rights and Performance Obligations of the transferor Contractor. SECTION 18: THE PARTIES 18.01 Independent Contractor. The Parties agree and the Contractor acknowledges as follows: a. Contractor is an independent entity and contractor engaged by KIS and not KIB's Related Party or a party to any joint venture with KIB. b. No employee or agent of Contractor is deemed to be KIB's Related Party. c. Contractor will have the exclusive control over the manner and means of performing Contract Services and over all Persons performing Contract Services. d. Contractor is solely responsible for the acts and omissions of Contractor's Related Parties, none of whom is deemed to be KIB's Related Party. e. Nothing in this Contract may be construed as creating an arrangement for handling Unpermitted Waste. f. Neither Contractor nor any of Contractor's Related Parties will obtain any rights to retirement benefits, workers' compensation benefits, or any other benefits that accrue to KIS employees and Contractor expressly waives any claim it may have or acquire to those benefits. g. Contractor bears the sole responsibility and liability for furnishing workers' compensation and all other benefits required by law to any individual for injuries arising from or connected with Contract Services. 18.02 Parties in Interest. Nothing in this Contract, whether express or implied, is intended to confer any rights on anyone other than the Parties and the Parties' respective representatives, successors and permitted assigns. Related Parties are third party beneficiaries of provisions in this Contract that reference them. 18.03 Binding on Successors. The provisions of this Contract will inure to the benefit of and be binding on the successors and permitted assigns of the Parties. 18.04 Further Assurances. Each Party agrees to execute and deliver any instruments and to perform any acts as may be necessary or reasonably requested by the other to give full effect to this Contract, including Contractor Documentation. Contractor will complete Contractor Documentation satisfactory to KIB by the Contract Commencement Date. 61 Page 174 of 329 Discussion Of Contract No. FY2019-25B, Amendment #2, Residential And Com... AGENDA ITEM #2.a. Contract No. FY2019-25 18.05 Actions of KIB in Its Governmental Capacity. Nothing in this Contract may be interpreted as limiting the rights and obligations of KIB in its governmental or regulatory capacity. 18.06 Contractor's Obligations Performed at Its Sole Expense. Contractor will perform Contract Services solely for the compensation expressly provided for in this Contract. 18.07 Parties Representatives. a. KIB (1) Identification. The KIB Representative is the Manager or his or her designee, as may be amended upon Notice to Contractor by KIB in KIB' s sole discretion. (2) Delegation_ By authorizing the execution of this Contract. KIB delegates to the KIB Representative the authority to exercise KIB's rights, remedies and options under this Contract and administer this Contract, except with respect to the following, which must be approved by the KIB Governing Body: (i) Extending the Term for an additional year or more; (ii) Suspending orTerminating this Contract; (iii) Approving or disapproving Transfer of this Contract; (iv) Amending this Contract, including amendments to the Contractor Service Fee due to changes in operations pursuant to Section I 1.03e, but not to annual adjustments pursuant to Section 11.03b; (v) Indemnities; and, (vi) Exercising any delegation of authority contrary to Applicable Law. b. Contractor Representative. The Contractor Representative is named in Contractor Documentation. The Contractor Representative must have at least 5 years of experience in Solid Waste collection services before being named Contractor Representative. The Contractor Representative is authorized to act on behalf of Contractor in the satisfaction of all Performance Obligations and exercise of Contractor's rights and options under this Contract. 18.08 Due Diligence. Contractor acknowledges that MSW Management Services and Recycling Services, including Contract Services, are highly regulated under Applicable Law, and that waste management is a public health and safety concern. Contractor agrees that it will exercise due diligence in performing Contract Services. 7 Page 175 of 329 Discussion Of Contract No. FY2019-25B, Amendment #2, Residential And Com... AGENDA ITEM #2.a. Contract No. FY2019-25 18.09 No Use of KIB Name. Contractor will not conduct any business related to its Performance Obligations under this Contract using any name referencing KIB, or otherwise applies association with or ownership by KIB. 18.10 Subcontractors. a. Subcontracts exceeding $50,000. Contractor will not engage any Subcontractor in an amount exceeding $50,000 for any individual Subcontractor without KIB's prior approval of the Subcontract and Subcontractor. Any Subcontract entered into without KIB's prior approval is void. Contractor will identify approved Subcontractors in Contractor Documentation. b. Contractor Responsibility. Contractor is solely responsible for directing the work of Subcontractors and paying Subcontractors' compensation. c. Removal. KIB may require Contractor to remove any approved Subcontractor for any of the following reasons: (1) Its failure to provide Contract Services; (2) Its non-compliance with Applicable Law, or (3) Its engagement in conduct that, in KIB's judgment, is abusive, rude or unsafe. d. Reference to Subcontractors. Specific reference to Subcontractors under this Contract (such as with respect to compliance with Applicable Law and meeting Insurance requirements) does not imply that lack of specific reference to Subcontractors elsewhere under this Contract Exempts Subcontractors from complying with this Contract. SECTION 19: AMENDMENTS 19.01 Amendments. a. Means of Amendment. Amendments to Contract rights, remedies and options, unless delegated to the KIB Representative, will be effective upon completion of the following actions: (1) Authorization and direction of KIB Governing Body; (2) Consent of the Contractor; and, (3) Due execution by the Parties of a written amendment to this Contract reflecting those changes. b. Consent by Representatives. All other Amendments to this Contract will be effective upon completion of the following: 63 Page 176 of 329 Discussion Of Contract No. FY2019-25B, Amendment #2, Residential And Com... AGENDA ITEM #2.a. Contract No. FY2019-25 (1) Consent of the KIB Representative, except for Contractor's amendments to Contractor Documentation that do not require KIB consent; (2) Consent of the Contractor Representative, except for amendments to this Contract that do not require Contractor consent; and, (3) Due execution by the Parties of text reflecting those changes. Examples of those amendments include the following: (i) Amendments not listed in Subsection a; (ii) Contractor Documentation; and, (iii) Exhibits or Attachments to this Contract (except with respect to Contractor Service Fee other than annual adjustments). c. Due execution. For purposes of this Section, "due execution" of amendments to the text of this Contract means that the Parties' authorized representatives: (1) Witness and sign the written amendment in the form provided on the signature page of this Contract; and, (2) Warrant that they are authorized to execute the amendment. SECTION 20• NOTICES, CONSENTS, AND APPROVALS 20.01 Notices. Notices must be given at the addresses provided in Contractor Documentation attached to this Contract, as follows: a. By Email or facsimile, promptly followed by personal or mailed delivery; b. By personal delivery to the Contractor Representative or KIB Representative, as the case may be; c. By deposit in the United States mail first class postage prepaid (certified mail, return receipt requested); or, d. By commercial delivery service providing delivery verification. Notice by KIB to Contractor of a missed pick-up or a Customer problem or complaint may be given to Contractor orally by telephone to Contractor Representative or other Contractor personnel responsible for taking complaints from KIB orthe public. Parties may change their address upon Notice to the other Party. 20.02 Writing Requirements. All Notices, reports, demands, requests, directions, selections, option exercises, orders, proposals, reviews, comments, 64 Page 177 of 329 Discussion Of Contract No. FY2019-2513, Amendment #2, Residential And Com... AGENDA ITEM #2.a. Contract No. FY2019-25 acknowledgments, approvals, agreements, consents, waivers, certifications and other communications made under this Contract must be in writing, except the following: a. Oral communication is explicitly authorized; and, b. Communication with respect to routine Contract administration, such as submitting Records or Reports, correcting Reports or, discussing Customer complaints. 20.03 Exercise of Options. Parties will exercise any approval, disapproval, consent, acceptance, option, discretion, election, opinion or choice under this Contract, make a requirement under this Contract, or interpret this Contract ("Discretionary Action") in a manner that is reasonable. Recognizing the essential public health and safety protections this Contract serves, where this Contract specifically provides that the exercise of any Discretionary Action is in either Party's independent, sole, exclusive or absolute discretion, control or judgment, the other Party will not question or challenge the other Party's exercise thereof. Parties will nevertheless exercise their rights and remedies in good faith as required by Applicable Law. Any mediator or court must find the Party's exercise to be reasonable. SECTION 21: INTEGRATIONS, GOVERNING LAW, AND VENUE 21.01 Integrations. This Contract contains the entire agreement between the Parties with respect to their rights and obligations under this Contract. This Contract completely and fully supersedes all prior understandings and agreements between the Parties with respect to their respective rights and obligations, including those contained in each of the following: a. Requests for proposals; b. Proposals; c. Memoranda; d. Correspondence; e. Telephone calls; f. Field trips; g. Interviews; h. Negotiations, and, I. Meetings of the KIB Assembly, and other commission, committees, and boards. 65 Page 178 of 329 Discussion Of Contract No. FY2019-25B, Amendment #2, Residential And Com... AGENDA ITEM #2.a. Contract No. FY2019-25 21.02 Governing Law. The Parties' respective rights and obligations pursuant to this Contract shall be determined according to, and governed by, the laws of the State of Alaska 21.03 Severability. a. Generally. Should any court of competent jurisdiction hold that any clause, sentence, provision, section, subsection, exhibit, or attachment of this Contract is unconstitutional, illegal, invalid, non-binding, or otherwise unenforceable, such determination shall not affect any of the remaining provisions of this Contract. This Contract will be construed and enforced as if the Contract Provision did not exist, and the Parties will as a result: (1) Promptly meet and negotiate a substitute for the Contract Provision and any related amendments, deletions or additions to other provisions of this Contract which together effect the Parties' original intent to the greatest extent allowable under Applicable Law; and, (2) If necessary or desirable to accomplish preceding item (1), apply to the court that declared said invalidity for a judicial construction of the substituted Contract Provision and any amendments, deletions or additions to this Contract. Within 10 days of any KIB's request, Contractor will pay KIB half of the Direct Costs of that application. However, if any Contract Provision with respect to KIB direction to a Solid Waste Management Facility is ruled unconstitutional, illegal, invalid, non- binding or unenforceable by any court of competent jurisdiction, then KIB in its sole discretion may either: (1) Sever that Contract Provision and construe and enforce this Contract under this Section; or, (2) Terminate this Contract. b. Contractor's Waiver of Certain Legal Challenges Contractor agrees not to challenge the constitutionality, legality, validity, enforceability or binding nature of either of the following provisions of this Contract: (1) Contractor's obligation to deliver Refuse to KIB Landfill; and, (2) Contractor's obligation to deliver any other type of Solid Waste (such as recyclables) to any other Solid Waste Management facility as directed by KIB. 21.04 New Contract. This Contract is a new obligation between the Parties and is a novation, substitution and replacement for any present or prior contracts or agreements between the Parties connected with or related to MSW Management Services. m Page 179 of 329 Discussion Of Contract No. FY2019-25B, Amendment #2, Residential And Com... AGENDA ITEM #2.a. Contract No FY2019-25 29.05 Venue. Any civil action arising from this Contract shall be brought in the Superior Court, Third Judicial District, State of Alaska 21.06 Costs. The non -prevailing Party in any dispute involving this Contract shall pay the prevailing Party's reasonable Reimbursement Costs, including attorney's fees. SECTION 22: ADDITIONAL TERMS AND CONDITIONS Notwithstanding anything herein to the contrary: (a) Contractor shall have no obligation to collect or transport any material which is or contains, or which Contractor reasonably believes to be or contain, radioactive, volatile, corrosive, highly flammable, explosive, biomedical, infectious, biohazardous, toxic or hazardous material as defined by applicable federal, state or local laws or regulations ("Excluded Waste"); (b) if Contractor finds what reasonably appears to be discarded Excluded Waste, Contractor shall promptly notify the KIB and the producer of the Excluded Waste, if the producer can be readily identified; and (c) title to and liability for any Excluded Waste shall remain with the producer of the Excluded Waste, even if Contractor inadvertently collects or disposes of such Excluded Waste. 2. Customers and the KIB must comply with any description of and/or procedures with respect to removal of contaminants or preparation of recyclable materials as reasonably provided by Contractor. If any customer or the KIB fails to do so, Contractor may decline to collect such materials without being in breach of the contract. Contractor shall not be responsible for and has not made any representation regarding the ultimate recycling of such recyclable materials by any third -party facilities. 3. Notwithstanding anything herein to the contrary, to the extent supplied by Contractor, in the event that a container becomes lost, unsightly, unsanitary, broken, or unserviceable because of the acts or omissions of a customer or the KIB (excluding normal wear and tear), the customer or KIB (as the case may be) will be charged for the resulting repairs or replacement and such amounts will be paid to Contractor upon demand. Any equipment furnished hereunder by Contractor shall remain the property of Contractor; however, the customers and the KIB (as applicable) shall have care, custody and control of the equipment while at the service locations. Customers and the KIB shall not overload (by weight or volume), move or alter the equipment, and shall use the equipment only for its proper and intended purpose. Customers and the KIB must provide unobstructed access to the equipment on the scheduled collection day. The word "equipment" as used in the contract shall mean all containers used for the storage of non -hazardous solid waste. 5. Except for the payment of amounts owed hereunder, neither party hereto shall be liable for its failure to perform or delay in its performance hereunder due to contingencies beyond its reasonable control including, but not limited to, strikes, 67 Page 180 of 329 Discussion Of Contract No. FY2019-25B, Amendment #2, Residential And Com... AGENDA ITEM #2.a. Contract No_ FY2019-25 riots, compliance with laws or govemmental orders, inability to access a container, fires, inclement weather and acts of God, and such failure shall not constitute a breach under the contract. SECTION 23: DEFINITIONS Affiliate means a Person that, directly or indirectly, through one or more intermediaries, controls, or is controlled by, or is under common control with, Contractor. For the purpose of this definition, "control" has the meaning provided in Rule 144 of the Securities Act of 1993. Affiliate Parent means an Affiliate that, directly or indirectly, through one or more intermediaries, controls Contractor. Annual Report means the Report required under Section 10.03 in form and content satisfactory to KIB. Applicable Laws means any or all of the following enacted, adopted, promulgated, issued, ruled, ordered, determined or otherwise made by any Regulatory Authority that apply to or govern Contract Services or the performance of the Parties' obligations under this Contract: (1) Laws, statutes (2) rules, regulations (3) guidelines, (4) Permits, (5) actions, determinations, orders, or (6) other requirements, including Applicable Law concerning the following: (7) health, (8) safety, (9) fire, (10) laborrelations, (11) mitigation monitoring plans, (12) building codes, (13) zoning, (14) non-discrimination, (15) Vehicles: such as: (i) air emissions (smog checks); tires; documentation through maintenance log or otherwise of a safety compliance report; Vehicle highway lighting, flashing and warning lights, clearance lights, a n d warning flags; registration; weight limits; cleaning; enclosure /water- tight beds; (ii) The appropriate class of drivers' licenses issued by the State Department of Motor Vehicles; (iii) any State laws relating to operating equipment construction, safety, and 68 Page 181 of 329 Discussion Of Contract No. FY2019-25B, Amendment #2, Residential And Com... AGENDA ITEM #2.a. Contract No. FY2019-25 parking and identification, (16) Carts: such as: a. maintenance and placement of Carts; b. placing Contractor's name and telephone number on Receptacle; (17) Labor: (i) Drug and alcohol testing; (ii) The Occupational Safety and Health Act, (29 U.S.C. §651 et seq.), including the Solid Waste Disposal Facility Criteria promulgated by the U.S. EPA on October 9, 1991 (40 C.F.R., Parts 257 and 258); and corresponding State requirements; (iii) immigration Reform and Control Act of 1986 (PL.99-603); (18) Environmental Protection: (i) CERCLA; (ii) RCRA; (iii) Clean Air Act, (42 U.S.C. §1351 et seq., 42 U.S.C. §7401-7642) and Clean Water Act, and; (iv) corresponding State requirements; (v) Emergency Planning and Community Right to Know Act, (42 U.S.C. §11001 etseq.); (vi) regulations governing the recovery of ozone-depleting refrigerants during the Disposal of air conditioning or refrigeration equipment, including 40 C.F.R. Part 82; (vii) any wash -down requirements for containers, trucks or facilities, (19) KIB Code, (20) Miscellaneous: (i) Civil Rights Act of 1964 (Sub chapter VI or Chapter 21 of Title 42); (ii) Customer's privacy rights. Reference to Applicable Law includes amendments and supplements to or replacement, restatement or recodification occurring after the Contract Commencement Date. Ij Page 182 of 329 Discussion Of Contract No. FY2019-25B, Amendment #2, Residential And Com... AGENDA ITEM #2.a. Contract No. FY2019-25 Base Service Level is described on the Contractor Service Fee Schedule. Bear Cart means a cart designed to be resistant to opening by bears. Breach means Contactor's failure to fully and timely meet any Performance Obligation. Bulky items) means any large item of Solid Waste that can be safely lifted by two individuals using a dolly, generated at Residential Premises and discarded at Residential Set -out Sites, such as the following: (1) furniture, including metal desks and storage cabinets, (2) pianos and organs, (3) televisions, (4) large appliances, including washers, driers, refrigerators, freezers, dishwashers and stoves, (5) toys, bikes and dismantled swing sets, (6) lawn mowers and snow blowers with no gas or oil in them, up to 4 auto or pickup tires per Customer each calendar month, with rims removed, (7) any item (other than lumber) that can be cut or broken-down meeting the following requirements: (i) no longer than 4 feet in length, (ii) weighing no more than 70 pounds. Bulky Items does not mean the following: (1) material generated at non -Residential Premises, including commercial business operations, (2) bundled Yard Waste, branches, (3) sod, soil and rock, (4) broken concrete and asphalt, (5) brick, block and stone, (6) railroad ties or similar type of retaining wall timbers, (7) remodeling debris, including shingles, (8) carpeting, (9) sinks, concrete laundry tubs and cast-iron plumbing fixtures, (10) windows and doors, (11) lumber, (12) animal waste, including all excrement from domestic animals and fowl, and all hay, straw or other materials that have been used for animals' or fowls' bedding, (13) liquids, including paint, (14) hazardous waste, including household hazardous waste, (15) fuel oil tanks, (16) any automotive parts (including vehicle batteries and tires). C&D Debris means any Solid Waste discarded in Dumpsters or Roll Off Containers that Contractor must Collect under Section 6.05, such as the following: 70 Page 183 of 329 Discussion Of Contract No. FY2019-25B, Amendment #2, Residential And Com... AGENDA ITEM #2.a. Contract No. FY2019-25 (1) bundled Yard Waste, branches, (2) sod, soil and rock, (3) broken concrete and asphalt, (4) brick, block and stone, (5) railroad ties or similar type of retaining wail timbers, (6) remodeling debris, including shingles, (7) carpeting, (8) sinks, concrete laundry tubs and cast-iron plumbing fixtures, (9) windows and doors, (10) lumber. Calendar Year means a period of 12 months of 365 or 366 consecutive days beginning January 1 and ending December 31. (Compare "Contract Year') Cardboard Recycling Container means a roll off container or dumpster with a narrow opening or slot on the side of the container that will require cardboard boxes to be first flattened in order to allow the cardboard material to be inserted into the container. Cart means a wheeled receptacle that can be emptied by either semi- or fully - automated vehicles. Change in Law means the following changes occurring after the Contract Commencement Date: (1) the adoption, promulgation, repeal, modification, amendment or other change in Applicable Law or change in judicial or administrative interpretation thereof occurring, other than: (1) laws with respect to taxes based on or measured by net income, or (ii) any unincorporated business, payroll or Contract taxes levied by any tax governmental authority (other than any taxes levied by KIB that are obligations of Contractor and not merely fees that Contractor must collect on behalf of KIB), or (iii) employment taxes; (2) any order or judgment issued by a Regulatory Authority that binds Contractor or has a material impact on Contract Service: (i) if the order or judgment is not also the result of the willful misconduct or negligent action or inaction of the Party relying thereon or of any third party for whom the Party relying thereon is directly responsible; and (ii) unless excused in writing from so doing by the other Party, the Party relying thereon will make or have made, or will cause or have caused to be made, Reasonable Business Efforts (such as retaining counsel) 71 Page 184 of 329 Discussion Of Contract No. FY2019-25B, Amendment #2, Residential And Com... AGENDA ITEM #2.a. Contract No. FY2019-25 to contest the order or judgment (it being understood that contesting in good faith an order or judgment will not constitute or be construed as a willful misconduct or negligent action of that Party); or (3) the imposition by a Regulatory Authority of any new or different material conditions in connection with the issuance, renewal, or modification of any Permit; or, (4) a Regulatory Authority's (i) failure to issue or renew any Permit, (ii) delay in issuing or renewing any Permit, or (iii) suspension, interruption ortermination of, any Permit; provided the failure, delay, suspension or termination is not due to the willful misconduct or negligent action or inaction of the Party relying thereon or any third party for whom the Party relying thereon is directly responsible. Collect, Collection or Collecting other form thereof means pick-up and removal of discarded Solid Waste required under this Contract. Collection Commencement Date means the date described in Section 3.01, on which Contractor shall begin providing certain Customer Collection services. (Compare "Contract Commencement Date ".) Collection Hours means the time during which Contractor may collect solid waste under the KIB Code. Commercial describes Persons (such as Customers) or things (such as Carts, Premises or types of Solid Waste) in the Contract Service Area that are not Residential or Multi- family. Commercial Customer means a Customer who owns or occupies a Commercial Premise. Commercial Premise means each Premise containing that is not a Residential Premise or Multi -family premise, such as businesses. Compactor means a receptacle containing a ram that pushes and compresses waste into a container or bale. Compensatory Damages means "Compensatory Damages" described in Section 15. Contract means this agreement, including all: (1) Sections; (2) Exhibits; and, (3) Other appended documentation, including Attachments, Exhibits and 72 Page 185 of 329 Discussion Of Contract No. FY2019-25B, Amendment #2, Residential And Com... AGENDA ITEM #2.a. Contract No. FY2019-25 documentation, which are incorporated in this Contract by reference as if fully set forth herein. Contract Commencement Date means the date on which this Contract is signed by both Contractor and KIB. (Compare "Collection Commencement Date") Contract Manager means the following: (1) Contractor Representative (2) Contractor's officers (3) Contractor's directors, and (4) any individual in a Position of influence. Contract Service means the MSW Management Services that Contractor must provide for Customers under this Contract, including all Performance Obligations, the future Collection of Recyclables if agreed to by the Parties, Collection from Roll -offs, Customer billing and collection, and Transportation of Collected MSW to the KIB landfill). (Compare "MSW Management Services".) Contract Service Area means all land within the boundaries of KIB where Customer's premises can be served by roads. Contract Service Asset Document means a document that encumbers or limits Contractor's interest in a Contract Service Asset or that evidences Contractor's ownership interest in the Contract Service Asset, such as: (1) lease -purchase agreement, (2) installment purchase agreement, (3) financing statement, mortgage or other instrument establishing a security interest to or by Contractor, (4) if requested by KIB, documents related to Contractor's rights with respect to the Contractor Service Asset, such as Cart warranties, and (5) if requested by KIB, documents related to operation and maintenance of the Contractor Service Asset. Contract Service Assets means all property, both tangible and intangible (such as facility leases or equipment installment purchase agreements) used directly or indirectly in performing Contract Services, including the following: (1) vehicles, (2) receptacles, (3) operation I maintenance equipment and facilities, (4) administrative/ office equipment (such as computer hardware and software, telephones/telefax) and offices. Contract Service Asset Inventory means a listing of all Contract Service Assets that includes a description of the type, size, year in service, comments regarding condition (if relevant), and useful service life for each asset. 73 Page 186 of 329 Discussion Of Contract No. FY2019-25B, Amendment #2, Residential And Com... AGENDA ITEM #2.a. Contract No, FY2019-25 Contract Service Day means a weekday or Saturday on which Contractor must perform Contract Services, Holidays excepted. (Compare "day" and 'KJB Business Day ll) Contract Service Exceptions means: (1) Solid Waste Not Properly Placed in Receptacles: discarded Solid Waste (other than any Bulky Item) that is not placed inside a Receptacle. (2) Any Receptacle that weighs more than limits prescribed on Receptacle's manufacturer warranty or other documentation acceptable to KIB and noted on the Receptacle. (3) Receptacle or Bulky Items Not Placed at Proper Set -out Site: a Receptacle is not discarded at the Set -out Site, or a Bulky Item or excess Refuse is not discarded atthe Set -out Site under 4.04. (4) Unsafe Condition: The Set -out Site is not safely accessible to Vehicles or Contractor's employees. (5) Unpermitted Waste or Unsafe Materials: Contractor observes Unpermitted Waste in a Receptacle or at the Set -out Site. (6) Any customer with a past due balance of 90 -days or greater will no longer be offered a refuse cart for curbside collection and will instead be billed the rate for residential roll -off container service. Once the customer's balance is paid in full, the customer will again be offered a refuse cart for curbside collection. Contractor means: (1) The Person named and signing the signature page of this Contract; (2) Any Transferee approved by KIB pursuant to Section 17; (3) For the purposes of indemnities, Contractor and Contractor's Related Parties. Contractor's actions and Performance Obligations include reference to any Subcontractor's actions under this Contract, as applicable, without specifying in each instance that Contractor must directly take those actions itself, or cause its Subcontractors to take those actions on Contractor's behalf. Contractor Documentation means documentation provided by Contractor to KIB under this Contract in form and content satisfactory to KIB, including those documents set forth in Exhibit B. Contractor Office means any office and other bases of operation located in KIB. Contractor Office Hours means at least 8:00 a.m. to 5:00 p.m. Monday through Friday (Holidays excepted). 74 Page 187 of 329 Discussion Of Contract No. FY2019-25B, Amendment #2, Residential And Com... AGENDA ITEM #2.a. Contract No. FY2019-25 Contractor Payment Obligations means amounts Contactor owes to KIB, including: (1) damages, including Liquidated Damages and Compensatory Damages; (2) reimbursements to KIB, including KIB's Reimbursement Costs; (3) any other amounts provided in this Contract, such as costs of applying to courts for judicial construction of Contract Provisions. Contractor Phone Hours are hours (excepting Holidays) between the following times: (1) 8:00 a.m. and 5:00 p.m., Monday through Friday, Contractor Representative means the individual or individuals authorized by Contractor under Section 18.07 and listed in Contractor Documentation. (Compare 'KIB Representative") Contractor's Reimbursement Costs means Contractor's Direct Costs plus 10% thereof. (Compare WIB's Reimbursement Costs.) Contractor's Related Parties means Contractor's employees, partners, officers, agents, Subcontractors, attorneys, consultants, licensees, invitees and Affiliates. Contractor's Related Parties are third party beneficiaries of provisions that reference them. (Compare "KIB's Related Parties".) Contractor Service Fee means the amount listed on the Contractor Service Fee Schedule. Contractor Service Fee Schedule means the schedule set forth at Section 11.01. Contractor Transition Plan means Contractor Documentation consisting of the plan required by Section 4, which has been approved by KIB. Contract Year means each 12 -month period commencing July 1 and ending June 30, or with respect to less than 12 -month periods following execution, termination or execution of the Agreement, the portion of that 12 -month period. (Compare "Calendar Year':) Criminal Activity means any of the following: (1) fraud or criminal felony offenses in connection with obtaining, attempting to obtain, procuring or performing a public or private agreement related to recyclables, yard waste, construction and demolition debris, garbage, refuse, or any other solid waste or MSW Management Services of any kind (including collection, hauling, transfer, processing, composting or disposal), including this Contract; (2) bribery or attempting to bribe a public officer or employee of a Regulatory Authority; or (3) embezzlement, extortion, racketeering, false claims, false statements, forgery. 75 Page 188 of 329 Discussion Of Contract No. FY2019-25B, Amendment #2, Residential And Com... AGENDA ITEM #2.a. Contract No. FY2019-25 falsification or destruction of records, obstruction of justice, knowingly receiving stolen property, theft, or misprision (failure to disclose) of a felony; or (4) unlawful disposal of hazardous, designated or other waste; or (5) violation of the following: (i) securities or antitrust laws (such as laws relating to price-fixing, bid -rigging and sales and market allocation), and (ii) unfair and anti-competitive trade practice laws, including with respect to inflation of waste collection, hauling or disposal fees. Cubic Yard means 46,656 cubic inches. Customer or Customers means a Person who subscribes for Contract Services from Contractor. customer Complaint Protocol means the protocol under Section 9.03 in form and content satisfactoryto KIB. Itis Contractor Documentation. Customer Service Subscription is Contractor Documentation consisting of the service order form prescribed by Section 9.08, as approved by KIB. Day means a calendar day. (Compare "KIS Business Day" and "Contract Service Day".) Default means "Default" as defined and described in Section 15. Direct Costs means the sum of the following: (1) payroll costs directly related to the performance, or management or supervision of any obligation under the provisions of this Contract, comprised of compensation and fringe benefits, including vacation, sick leave, holidays, retirement, workers' compensation insurance, federal and state unemployment taxes and all medical and health insurance benefits, plus (2) the costs of materials, services, direct rental costs and supplies, plus (3) travel and subsistence costs, plus (4) the reasonable costs of any payments to Subcontractors (with respect to Contractor) or contractors (with respect to KIB) or third party's necessary to and in connection with Performance Obligations; plus (5) any other cost or expense which is direct or normally associated with a task performed; plus (6) reasonable litigation costs and expenses, including attorneys' fees (including the reasonable value of the services rendered by KIB Counsel's Office) 76 Page 189 of 329 Discussion Of Contract No. FY2019-25B, Amendment #2, Residential And Com... AGENDA ITEM #2.a. Contract No. FY2019-25 investigation fees and expert witness fees. Which Direct Costs are substantiated by: (7) a certificate signed by the principal financial officer of Contractor or an authorized representative of KIB, as the case may be: (i) setting forth the amount of the cost and the reason why the cost is properly chargeable to KIB or Contractor, as the case may be, and (ii) stating that the cost is an arm's length and competitive price, if there are competitive prices, for the service or materials supplied; and if KIB or Contractor requests, as the case may be, the additional back-up documentation to substantiate any Direct Cost, including invoices from suppliers, Subcontractors and contractors. Direct Costs excludes profit or return on investment. Disposal or Dispose or other form thereof means final deposition or destruction of Solid Waste. Diversion or Divert means activities that reduce or eliminate the amount of Solid Waste from disposal. Drive-in Service means when the contractor is required to leave the public right-of-way and enter a driveway, private road, or private property. Dumpster means a receptacle for discarded solid waste that has slots to allow pick-up by the forklifts, generally a metal box with lid also referred to as "bin" or"container". Elderly or Handicapped means any Residential Customer who meets the following criteria: (1) has handicapped status recognized by the State Department of Motor Vehicles, or (2) is over 65 years old as evidenced by birth dates on driver's licenses, birth certificates, passports, green cards or other documentation issued by a Regulatory Authority, and (3) provides written representation that he or she is functionally unable to roll his or her Refuse Cart to the curb, and that there 'is no one else residing in that Customer's premises who is functionally able to roll that Refuse Cart to the curb. Electronic Waste means discarded computers/monitors/equipment, office electronic equipment, entertainment device electronics, mobile phones, television sets, and other materials with electronics that may be Recyclable. Goods or Services means goods or services used in providing Contract Services, including the following: (1) labor, 77 Page 190 of 329 Discussion Of Contract No. FY2019-25B, Amendment #2, Residential And Com... AGENDA ITEM #2.a. Contract No. FY2019-25 (2) leases and subleases, (3) equipment, (4) supplies, (5) capital, (6) insurance, if the insurer is an Affiliate, (7) bonds or other credit support if the surety or other provider is an Affiliate; and (8) legal, risk management, general and administrative services. Guarantor means the Person executing the Guaranty. Guaranty means the guaranty in a form approved by KIB, and signed by Guarantor. Herein, Hereof, Hereunder and variations mean "in this Contract', "of this Contract", "under this Contract'; "hereinbefore" and "hereinafter" mean before and after the Contract Commencement Date, respectively. Holidays means days on which KIB offices are closed for business to the public, comprised on the Contract Commencement Date of the following days: (1) New Year's Day, (2) Martin Luther King Day (3) President's Day (4) Seward's Day (5) Memorial Day, (6) Independence Day, (7) Labor Day, (8) Veteran's Day (9) Thanksgiving Day and the day after Thanksgiving and, (10) Christmas. Including or Include or variations thereof means "including without limitation, "including, but not limited to" and "including, at a minimum". indemnities or Indemnity or Indemnification or variations thereof means Contractor's obligation to hold KIB harmless, and all such related defenses, indemnities and releases under this Contract. Insurance means the insurance coverages required by Section 13. KIS means the following: (1) the Kodiak Island Borough; (2) any transferee of Kodiak Island Borough; and, (3) for purpose of Indemnities, Kodiak Island Borough's Related Parties. KIB Business Day means any day on which KIB Administration office is open to do business with the public. (Compare "Contract Service Day".) KIS Code means municipal law of KIB. 78 Page 191 of 329 Discussion Of Contract No. FY2019-25B, Amendment #2, Residential And Com... AGENDA ITEM #2.a. Contract No. FY2019-25 KIB Governing Body means KIB Assembly. KIB Office Hours means the hours of any KIB Business Day on which KIB Administration office is open to do business with the public. (Compare 'Contractor Office Hours".) KIB Representative means the individual holding the position named by KIB under Section 18.7 (Compare "Contractor Representative") KIB's Reimbursement Costs means KIB's Direct Costs plus 15%. (Compare "Contractor's Reimbursement Costs") KIB's Related Parties means KIB's officers, employees, agents, contractors, attorneys, administrators, affiliates, representatives, servants, insurers, heirs, assigns, volunteers and each and every one of them. They are third party beneficiaries of provisions in this Contract that reference them. (Compare "Contractor's Related Parties") KIB Landfill means the landfill owned by KIB. Letter of Credit means the letter of credit described m Section 13.03. It is Contractor Documentation. Liabilities and Losses means all of the following: (1) liabilities; (2) lawsuits; (3) claims; (4) complaints; (5) causes of action; (B) citations; (7) investigations; (8) demands; (9) clean-up orders; (10) damages (including actual, special, consequential and punitive) whether in contract or in tort, such as natural resource, property and personal injury damages; (11) costs and expenses, including (i) all costs and expenses of litigation, mediation or arbitration, accountant fees, engineer's fees, attorney's fees (whether KIB's or Contractor's staff attorneys or outside attorneys) and other consultant's fees, expert witness fees, and court costs; and, (ii) response remediation and removal costs. (12) losses; (13) debts; (14) liens; (15) mediation, arbitration, legal or administrative proceedings; 79 Page 192 of 329 Discussion Of Contract No. FY2019-25B, Amendment #2, Residential And Com... AGENDA ITEM #2.a. Contract No. FY2019-25 (16) interest; (17) fines, charges, penalties; and, (18) other detriments of every nature and description, whether under state or federal law. Liquidated Damages are described in Section 15.01 and Exhibit C. Monthly Meeting means the meeting prescribed by Section 10.03. MSW Management Services means: (1) collection, transportation, storage, transfer, or processing of solid waste; and/or (2) arranging for disposal of solid waste. Multi -family describes Persons (such as Customers) or things (such as Carts or types of Solid Waste) in the Contract Service Area that are not Residential. Multi -family Customer means a Customer who owns or occupies a Multi -Family Premise. Multi -family Premises means premises that are not residential premises (and therefore contains 4 or more dwelling units) including apartment complexes and trailer courts. Non -Collection Notice means a notice in form and substance satisfactory to KIB left by Contractor in event of Contract Service Exceptions, such as Discard of Unpermitted Materials. Notice or Notify or other variation thereof means notice given under Section 20. "Due Notice" or"Notice duly given", refers to Notice given under Section 20. Own, Owner or Ownership or other variation there or has the meaning provided in the constructive ownership provisions of Section 31 B(a) of the Internal Revenue Code of 1986, as in effect on the Contract Commencement Date, except that (1) 10% is substituted for 50% in Section 318(a)(2)(C) and in Section 318(a)(3)(C) thereof; (2) Section 318(a)(5)(C) is disregarded, and (3) ownership interest of less than 10 percent is disregarded and percentage interests is determined on the basis of the percentage of voting interest or value which the ownership interest represents, whichever is greater. Party and Parties means the following 2 Persons, individually and together: (1) KIB, and (2) Contractor. Performance Assurances means each and every Indemnity, Insurance, Letter of Credit and Guaranty, and any other instrument described in Section 13. 80 Page 193 of 329 Discussion Of Contract No. FY2019-25B, Amendment #2, Residential And Com... AGENDA ITEM #2.a. Contract No. FY2019-25 Performance Obligations means each and every obligation and liability of Contractor under this Contract. Permit means any of the following, of whatever kind and however described that Applicable Law requires Contractor to obtain or maintain with respect to satisfaction of Performance Obligations, as renewed or amended from time to time: (1) permit; (2) registration; (3) order; (4) license (including business license); (5) approval; (6) authorization; (7) consent; and, (8) entitlement Person means any of the following: (1) individual; (2) sole proprietorship (3) firm; (4) association; (5) organization; (6) partnership (whether limited or general); (7) corporation; (8) trust; (9) joint venture; (10) Regulatory Authority' or, (11) any other entity Position of Influence means a position of authority or responsibility to directly or indirectly administer, manage, direct, supervise or oversee Contract Services or this Contract, including the following: (1) Affiliate Parents' officers; (2) Affiliate Parents' directors; (3) individual who reviews or negotiates Contractor's contracts (including this Contract); (4) individual who provides in-house legal services; (5) Affiliate insurer (captive insurance), (6) Guarantor, and (7) Affiliate surety or other Person providing Performance Assurance. Premises means a tract of land with habitable buildings located in the Contract Service Area and safely accessible by Vehicles. Processing means solid waste: 81 Page 194 of 329 Discussion Of Contract No. FY2019-25B, Amendment #2, Residential And Com... AGENDA ITEM #2.a. Contract No. FY2019-25 (1) reduction; (2) separation; (3) recovery; (4) conversion; (5) recycling; and, (6) composting. Processing means `processing" of Solid Waste: it does not mean baling refuse. Promptly or Prompt means as soon as practicable, but not more than two days. Quarter means any of all of the following periods, as the context demands: (1) January, February, March ("1st Quarter"), (2) April, May, June ("2nd Quarter"), (3) July, August, September ("3rd Quarter"), (4) October, November, December ("4th Quarter"). Proposal means the response provided by the Contractor to the Residential and Solid Waste Collection and Recycling Services Request For Proposal. RCRA means the Resource Conservation and recovery Act (42 U.S.C. Section 6901 et seq. Reasonable Business Efforts means those efforts a reasonably prudent business Person would expend under the same or similar circumstances in the exercise of that Person's business judgment, intending in good faith to take steps calculated to satisfy the obligation which that Person has undertaken to satisfy. Receptacle means any Cart, Dumpster, Roll Off Container or other receptacle (such as bags designed for solid waste discard, but not shopping or grocery bags) for storing discarded Refuse. Records means information relating to Contract Services and other Performance Obligations, including documentation in any form or media, including: (1) ledgers and books of account; (2) invoices, vouchers and canceled checks; (3) logs and correspondence; (4) data and computations; (5) files; (6) reports; (7) drawings, plans and designs (other than those operations that do not involve Collection, such plans and specifications); and, (8) photographs. Recyclables means Solid Waste that is recyclable. 82 respecting facilities or facility as materials recovery facility Page 195 of 329 Discussion Of Contract No. FY2019-25B, Amendment #2, Residential And Com... AGENDA ITEM #2.a. Contract No. FY2019-25 Recyclables Processing Facility means the Contractor -operated facility where it processes recyclables for shipment to markets. Recycle, Recycling or Recyclable means the process of collecting, sorting, cleansing, treating, and reconstituting materials that would otherwise become solid waste and returning them to the economic mainstream in the form of raw material for new, reused, or reconstituted products that meet the quality standards necessary to be used in the market place. Recycled Content Procurement Policy means KIB'S current buy -recycled policy, if any. Recycling or Recycling Services means all activities related to managing Recyclables. Refuse means Solid Waste comprised of rubbish, trash and garbage, excluding any Bulky Item that Contractor Diverts. Regularly Scheduled Collection Day(s) means the same day(s) each week on which Contractor provides Collection to a Customer. Regulatory Authority means each of the following that has jurisdiction over either Party or this Contract: (1) the United States; (2) the State of Alaska and other states; (3) KIB; (4) governmental authorities, agencies and districts; (5) governmental boards and commissions; (6) federal, state and local courts; and, (7) any other municipal, governmental or public bodies. Report means any report that Contractor is obligated to provide under this Contract, including Section 10. Residential describes Persons (such as Customers) or things (such as Carts, Premises or types of Solid Waste) in the Contract Service Area that reside or are related to Residential Premises. Residential Customer means a Customer who owns or occupies a Residential Premise. Residential Premise means a premises meeting both of the following conditions: (1) It contains one, two or three dwelling unit(s); and, (2) Each dwelling unit is occupied by related individuals or by 5 or fewer unrelated individuals. Roll Off Container means an open -topped rectangular container for storage, collection and transport of Solid Waste that are rolled on and off flatbed collection vehicles via winches or reeving cylinders (hooks). Rollout Service means taking the following actions by manual means: 83 Page 196 of 329 Discussion Of Contract No. FY2019-25B, Amendment #2, Residential And Com... AGENDA ITEM #2.a. Contract No. FY2019-25 (1) dismounting from the Collection Vehicle, (2) moving a Receptacle more than five feet (6) from its storage location indicated on that Customer's Service Subscription (such as within enclosures or by garages) to the Collection Vehicle for emptying, and (3) returning the Receptacle to its storage location. Senior Discount means the amount by which the Contractor Service Fee is reduced from time to time by KIB for providing Contract Service to any Residential Customer who is over 65 years old as evidenced to KIB by birth dates on driver's licenses, birth certificates, passports, green cards or other documentation issued by a Regulatory Authority. Service Day means a weekday or Saturday, Holidays excepted, when Contractor must provide Contract Service. (Compare "KIB Business Day".) Set -out Site means the location agreed to by Contractor and the Customer and indicated on the Customer Service Subscription or required by KIB, where Customer must place its Carts for Collection, including: (1) Residential curb: on the curb in front of Residential Premises; in the street immediately adjacent to that curb or; if there is no curb, at the edge of Customer's property abutting the street, unless Contractor provides Roll-out Service or Up -the- Drive Service; (2) Roll-out Service: at the storage location agreed upon between a Residential Customer and Contractor and included on the Customer Service Subscription; and. (3) Up -the -Drive Collection: at the storage location agreed upon between a Residential Customer and Contractor. Solid waste means "municipal solid waste" defined under AS 46.03.900. Solid Waste means municipal solid waste' discarded in Receptacles, other than Unpermitted Waste, located in the Contract Service Area that Contract Must Collect, including: (1) Refuse; (2) Recyclables; (3) Bulky Items; and, (4) CBD Debris, Solid Waste Management Facility means the following facilities, individual and together, as the context demands: (1) KIB Landfill; and, (2) any other facility that handles Solid Waste and that is approved by KIB. 84 Page 197 of 329 Discussion Of Contract No. FY2019-25B, Amendment #2, Residential And Com... AGENDA ITEM #2.a. Contract No. FY2019-25 State means the State of Alaska. Subcontract means any arrangement, formal or informal, written or merely in practice, between Contractor and a Subcontractor, including: (1) contracts or agreements; (2) letters or memorandum of understanding or intent; and, (3) subscription or purchase orders. Subcontractor means anyone Person that provides Goods or Services related to Collection, transportation or storage of Solid Waste or related to Service Assets, including their operation, maintenance and repair, to or on behalf of Contractor. Such as means for example. Term of this Contract means the period beginning on the Contract Commencement Date and ending on the Termination Date. Termination Date means the date this Contract expires or is earlier terminated. Termination Events are such instances as described in Section 16.01. Ton (or Tonnage) means a short ton of 2,000 pounds avoirdupois. Transfer means any of the following: (1) selling, exchanging or otherwise transferring Ownership or control of Contractor (through sale, exchange or other transfer of outstanding stock, partnership shares, equity interest or otherwise); (2) issuing new stock or selling, exchanging or otherwise transferring 20% or more of the then outstanding common stock of, or partnership shares or equity interest in, Contractor; (3) any dissolution, reorganization, consolidation, merger, re -capitalization, stock issuance or re -issuance, voting trust, pooling agreement, escrow arrangement, liquidation, buy-out or other transaction which results in a change of Ownership or control of Contractor; (4) any assignment by operation of law, including insolvency or bankruptcy, making assignment for the benefit of creditors, writ of attachment of an execution, being levied against Contractor, appointment of a receiver taking possession of any of Contractor's tangible or intangible property (5) any sale or other transfer of 50% or more of the value of assets of Contractor except for sales or transfers to parents, grandparents, siblings, children, and grandchildren of persons having a shareholder, partnership or other equity 85 Page 198 of 329 Discussion Of Contract No. FY2019-25B, Amendment #2, Residential And Com... AGENDA ITEM #2.a. Contract No. PY2019-25 interest in Contractor on the Contract Commencement Date ("Immediate Family") or trust created primarily to benefit members of the Immediate Family; (6) substitution by a surety company providing any performance bond of another Person for Collector to perform Contract Services; and (7) assumption of any of Contractor's rights under this Contract, or (8) assumption by, delegation to or takeover of any Performance Obligations or any other Contractor's duties or responsibilities under this Contract by any Person other than Contractor, whether by Subcontract, unless approved by KIB pursuant to the requirements of this Contract, or any other mechanism. (9) any combination of the forgoing (whether or not in related or contemporaneous transactions), without consideration, which has the effect of any transfer or change of Ownership or control of Contractor. For the purpose of this definition, "control" has the meaning provided in Rule 144 of the Securities Act of 1993 Transition Plan means the Contractor Documentation consisting of the plan submitted by the Contractor pursuant to Section 4, as approved by KIB. Uncontrollable Circumstances) means any of the following events: (1) any natural disaster such as landslide, lightning, earthquake, fire, flood, tsunami, (other than reasonably anticipated weather conditions for the geographic area of KIB, such as wind, rain or snow); (2) sabotage, explosion; (3) insurrection, riot or civil disturbance, war or other emergency affecting KIB declared by the President of the United Sates or Congress of the United States, the State Governor or KIB Governing Body; (4) failure of public agency or private utility to provide and maintain water, power or service in KIB or at Contractor's operations and maintenance yard or administrative offices; (5) other catastrophic events beyond the reasonable control of that Party and not the result of willful or negligent action or inaction of that Party (other than the contesting in good faith or the failure in good faith to contest that action or inaction), which materially and adversely affects the ability of either Party to perform any obligation under this Contract despite that Party's exercise of due diligence. Uncontrollable Circumstances excludes, without limitation: (1) Breach, Default or Contractor's financial inability to satisfy its Performance Obligations; 86 Page 199 of 329 Discussion Of Contract No. FY2019-25B, Amendment #2, Residential And Com... AGENDA ITEM #2.a. Contract No. FY2019-25 (2) strikes, work stoppages or other labor disputes or disturbances of any Subcontractor or Contractor's inability to hire adequate numbers of personnel who are competent and skilled in the work to which they are assigned; (3) failure of Contractor to obtain Permits and patents, licenses, or trademarks necessary to perform Contract Services; and (4) the failure of any Contract Service Asset to function under any warranties, unless caused by Uncontrollable Circumstances. Unpermitted Waste means materials that cannot be disposed of in the KIB Landfill under Applicable Law of the State or KIS rules. Unpermitted Waste Screening Protocol is Contractor Documentation cons1stmg of the protocol that Contractor has submitted pursuant to Section 9.03, which has been approved by KIB. Vehicle means any truck used to provide Contract Services. Violation means any noncompliance with Applicable Law as evidenced by written notice, assessment or determination of any Regulatory Authority to Contractor, whether or not a fine or penalty is included, assessed, levied or attached. 87 Page 200 of 329 Discussion Of Contract No. FY2019-25B, Amendment #2, Residential And Com... AGENDA ITEM #2.a. Contract No. FY2019-25 SECTION 24: EXECUTION 24.01 Execution in Counterparts. This Contract may be signed in any number of original counterparts. All counterparts will constitute but one and the same Contract, 24.02 Authority to Execute. a. KIS. KIB warrants that its officers listed below have been duly authorized to execute this Contract on its behalf b. Contractor. Contractor warrants that the individuals listed below have been duly authorized to execute this Contract on behalf of Contractor. KODIAK ISLAND BOROUGH CONTRACTOR Alaska, olitical l;dij?n gy. By: . ,.All �2:z Name: Michael Powers Title: Boroug Manage Dated: / ATTEST: By: {, Name: Tara Welinsky Title: Boro h Clerk Dated: 7 S l Name: 14A ( )( c Title: tJ��t/�� Ui[c �(e) 14 —4 Dated: q3)q 7_kVEDS TO FORM, KIB COUNSEL Name: k b . D✓v d VBG ei'� Title: Borough Attorney 88 Page 201 of 329 Discussion Of Contract No. FY2019-25B, Amendment #2, Residential And Com... Dated: 23 EXHIBIT A REQUEST FOR PROPOSAL F� AGENDA ITEM #2.a. Contract No. PY2019-25 Page 202 of 329 Discussion Of Contract No. FY2019-25B, Amendment #2, Residential And Com... AGENDA ITEM #2.a. Contract No. FY2019-25 EXHIBIT B LIQUIDATED DAMAGES 1. Liquidated Damages. Pursuant to Section 15.01 of the Exclusive Service Contract for Residential and Commercial Solid Waste Collection and Recycling Services ("Contract") executed by and between the Kodiak Island Borough ("KIB") and ("Contractor"), Contractor shall be liable to KIB for liquidated damages in the amount of $75.00 for any first incident, $100.00 for any second incident within 12 months, and $200.00 for every similar incident thereafter within 12 months, should KIB determine that Contractor has committed certain breaches of its Performance Obligations. KIB's assessment of Liquidated Damages does not preclude KIB from enforcing the KIB Code for corresponding Violations. 2. Breaches for Which Liquidated Damages May Be Assessed. a. f=ailure to provide Contract Services to any Customer, including missed pickups; b. Failure to return emptied Containers to its Set -out site; c. Failure to deliver any collected Solid Waste to a disposal facility approved by KIB; d. Failure to maintain Records, including but not limited to Contractor's failure to record a complaint; e. Failure to timely respond to and resolve a customer complaint; f. f=ailure to deliver, repair, replace or pick up Carts, Dumpsters or Roll -offs; g. Failure to observe Collection schedule; h. Failure to observe Contractor's Office Hours; I. Failure to clean up litter, spills, and leaks; j. Transportation of collected waste and recyclables in uncovered Collection Vehicles; k. Failure to provide KIB with timely access to Records; I. Failure to display its telephone number on Vehicles; m. Failure to return KIB telephone calls; n. Failure to meet with KIB; 90 Page 203 of 329 Discussion Of Contract No. FY2019-25B, Amendment #2, Residential And Com... AGENDA ITEM #2.a. Contract No. FY2019-25 o. Failure to remedy any violation of KIB code within five (5) days of any Notice of Violation; p. Failure to submit Reports, or any other required documentation, to KIB; q. Failure to charge Customers consistent with the Contractor Service Fee Schedule; r. Engaging in discourteous behavior toward Customers; 9? Page 204 of 329 Discussion Of Contract No. FY2019-25B, Amendment #2, Residential And Com... AGENDA ITEM #2.a. Contract No. FY2019-25 EXHIBIT C CONTRACTOR'S PROPOSAL DOCUMENTS 92 Page 205 of 329 Discussion Of Contract No. FY2019-25B, Amendment #2, Residential And Com... KODIAK ISLAND BOROUGH STAFF REPORT OCTOBER 10, 2024 4 ' x ASSEMBLY WORK SESSION SUBJECT: Review of Ordinance No. FY2025-03, Amending Chapter 8.25 Solid Waste Collection And Disposal Requirements For Solid Waste Services ORIGINATOR: Dave Conrad, E&F Director/Admin Official AGENDA ITEM #2.b. Title 8 Health And Safety To Clarify Language And RECOMMENDATION: This is for discussion of the Assembly at this work session. The Assembly postponed action on this item to the October 17 regular meeting. DISCUSSION: The Kodiak Island Borough Assembly established the Solid Waste Contract Committee (SWCC) with Resolution No. FY2024-12 to evaluate, develop, and clarify inconsistencies and ambiguities present in the current solid waste contract. During their evaluation and research, SWCC discovered that the discrepancies and vagueness in the contract were also present in KIBC 8.25 Solid Waste Collection and Disposal. The SWCC held a meeting on June 4, 2024, where they approved and moved to present a second amendment to the Solid Waste Contract to the Assembly. During this meeting the Borough Manager indicated that the next step following the second amendment would be to update and clarify the KIBC 8.25 to ensure consistency in verbiage. This alignment across multiple platforms will aid the public in understanding their responsibilities and roles regarding solid waste management. The SWCC held a meeting on August 28, 2024, to review the edits provided by the Borough Attorney. Summary of Chanaes to KIBC 8.25: Updated Titles of Sections for Easier Understanding General Formatting Changes Definition Modifications Removal of Unnecessary/Ambiguous Language Added Clarification to Processes ALTERNATIVES: FISCAL IMPACT: OTHER INFORMATION: Kodiak Island Borough Review of Ordinance No. FY2025-03, Amending Title 8 Health And Safety Ch... Page 206 of 329 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 AGENDA ITEM #2.b. KODIAK ISLAND BOROUGH ORDINANCE NO. FY2025-03 AN ORDINANCE OF THE ASSEMBLY OF THE KODIAK ISLAND BOROUGH AMENDING TITLE 8 HEALTH AND SAFETY CHAPTER 8.25 SOLID WASTE COLLECTION AND DISPOSAL TO CLARIFY LANGUAGE AND REQUIREMENTS FOR SOLID WASTE SERVICES WHEREAS, the procedures set forth in Chapter 8.25 of the Kodiak Island Borough Code should be updated to clarify the language and requirements of the public for solid waste services; and WHEREAS, the Kodiak Island Borough Assembly established the Solid Waste Contract Committee (SWCC) to evaluate, develop, and clarify inconsistencies and ambiguities present in the current solid waste contract; and WHEREAS, the SWCC, during their evaluation and research, discovered that the discrepancies and vagueness in the contract were also present in KIBC 8.25; and WHEREAS, the SWCC, at their meeting on June 4, 2024, approved the final draft of the second amendment and moved for it to be presented to the Assembly; and WHEREAS, the Borough Manager and the SWCC discussed the next step for clarification for the public would be to update and clarify the language in KIBC 8.25. NOW, THEREFORE, BE IT ORDAINED BY THE ASSEMBLY OF THE KODIAK ISLAND BOROUGH that: Section 1: This ordinance is of a general and permanent nature and shall become a part of the Kodiak Island Borough Code of Ordinances. Section 2: That Section 1.20.050, Fine Schedule, of the Kodiak Island Borough Code of Ordinances is amended to modify the references for violation of KIBC 8.25.070(B) to read as follows: KIBC 8.25.070(B)(32)(bc)ISolid Waste Storaae and Set Out (1st offense) 1$50 Section 3: That Section 8.25 Solid Waste Collection and Disposal of the Kodiak Island Borough Code of Ordinances is amended to read as follows: Ordinance No. FY2025-03 Page 1 of 20 Page 207 of 329 Review of Ordinance No. FY2025-03, Amending Title 8 Health And Safety Ch... 38 39 40 41 42 43 44 45 46 47 48 49 50 51 52 53 54 55 56 57 58 59 60 61 62 63 64 65 66 67 68 69 70 71 72 73 74 75 76 77 78 79 AGENDA ITEM #2.b. Chapter 8.25 SOLID WASTE COLLECTION AND DISPOSAL Sections: 8.25.010 Purpose. 8.25.020 Definitions. 8.25.030 Constructionw Interpretations. 8.25.040 Solid Wwaste Aaccumulation and Pprevention of Nouisance. 8.25.050 Litter. 8.25.060 Solid _Wwaste Ceollection Sservice. 8.25.070 Solid _Wwaste Sstorage and Sset-Oeut Sites. 8.25.080 . Contract Hauler Refusal of Service. 8.25.090 Billing and collection-. For Contract Hauler Services. 8.25.100 Transportation of Solid Waste. 8.25.110 Proper Disposal of Ssolid Wwaste. 8.25.120 Disposal of Hhazardous and Ttoxic Wwastes:—Used Mmotor Ooil or— Electronic Wwaste. 8.25.130 Prohibition on Bburning of Ssolid Wwaste. 8.25.140 Solid _Wwaste Contract Hauler Only. handling sepfin^c. 8.25.150 General CEonditions of Sservice. 8.25.160 Prohibition of Sscavenging and Ttampering. 8.25.170 Ownership. 8.25.180 Baler Ffacility and Ssanitary Llandfill. 8.25.190 User Ffee Sschedule. 8.25.200 Prohibited Ddisposal. 8.25.210 Applicability of Ffederal, Sstate, and Llocal Ssolid Wwaste Llaw. 8.25.220 Administration, limplementation, and Eenforcement. 8.25.230 Repealed. 8.25.240 Violations, Eenforcement Aactions and Rfemedies. 8.25.010 Purpose. As authorized by AS 29.35.210(a)(4), the purpose of this chapter is to regulate the management of municipal solid waste, including storage, collection, processing, recovery, and disposal of solid waste, for the following reasons: A. To protect the public safety, health, and welfare of the people of the borough; B. To protect, preserve, and enhance the environment of the people of the borough; and C. To provide fiscally responsible solid waste management. 8.25.020 Definitions. In this chapter, each of the following terms has the respective corresponding meaning: "Account Holder" means the owner of a premises, or the person or entity identified by the owner as being the responsible party for the unit(s) payment for the required solid waste collection services available to a residential or commercial customer. When the account Ordinance No. FY2025-03 Page 2 of 20 Page 208 of 329 Review of Ordinance No. FY2025-03, Amending Title 8 Health And Safety Ch... AGENDA ITEM #2.b. 80 holder is a person or entity other than the owner, they may be referred to as the "authorized 81 account holder". 82 "Bear cart" means a cart designed to be resistant to opening by bears. 83 , 84 -as; these haviRg a three tG eight yaFd GapaGity, semetimes referred- te- as -;; "d-i-impster." 85 "Borough landfill' means the landfill owned by the borough. 86 "Bulky item(s)" means any large item of solid waste that will not fit through a dumpster or roll 87 off container door or opening that is generated at a unit and discarded at the borough 88 landfill. For purposes of on-call or specially scheduled bulky item pickup, bulky item shall 89 include any item which can be safely lifted by two individuals using a dolly, generated at 90 residential premises or at a set out site. s determined frem time +e time by the manager, 91 whiGh GaR be safely lifted by two iRdividuals USiRg a dolly, geRerated at resideRtial premises and 92 dionar.ded at r sidestial set _out sates ,nh as the felle,. i W. 93 1. FurnituFe, 'RG:6id:ngmett-a; desks a„d-storageGab:,aets; 94 2. RaRes and 95 3. Teleuisiens; 96 4. Large appliaRGes, 'RGluding washers, driers, refrigeraters, freezers, dishwashers and 97 steues; 98 5. Toys, bikes, and aismaRtled sw;,;g sets; 99 Awp MAwpri.; ;;Ad .;AA;Ao hlAwersv ith Re gas er effil 'R them, up to four auto or pickup tires 100 ver G 1stemer ea..h valenrlar month with rorns rprnAved; aR d 101 7. AlYi+em ether than lumber, that n n he n. rF er breken dewn meeting the fe lewing 102 103 a. Net lGRger than fe, it fee+ in leRgth; nnr! 104 b. Weign;ngRe more than 7, ,ds. 105 "Q„IL„ i+emc" Agee net me n the felleudne• 106 107 epee +ienT 108 2. BUnaled yard waste, braRGhes; 109 , 110 4.epretpAnda SpIrI 111 5. BFiGk blOGk and ste%� 112 6, R-amilreact,ieS-0r�.lrnr—+pne-vf retammgvrnII +irmh er� 113 7. Rdel;ng debris, GlUdirng shingle -s; 114 8. GaFpet+RW, 115 g. BiRkS, GGRGrete la„n,dn,+ubs, and Gast 'FOR plumbiRg;i,xtures; 116 1 Q. monde- .,san,d�As 117 11. 118 119 . Ordinance No. FY2025-03 Page 3 of 20 Page 209 of 329 Review of Ordinance No. FY2025-03, Amending Title 8 Health And Safety Ch... 120 121 122 123 124 125 126 127 128 129 130 131 132 133 134 135 136 137 138 139 140 141 142 143 144 145 146 147 148 149 150 151 152 153 154 155 156 AGENDA ITEM #2.b. "C&D (construction and demolition) debris" means any solid waste diSGarded i^ r,,,., Asters or r^"- nff AAAI ,inorc thatdet thethe r.AAtr,r.+ h",l,,. generated at a construction site either residential or commercial must be collected under the on-call temporary dumpster and roll -off collection service section of the approved collection contract. Examples of such items are the following: SUGh as the fGl1GWiRg: 1. Bundled yard waste, branches; 2. Sod, soil and rock; 3. Broken concrete and asphalt; 4. Brick, block, and stone; 5. Railroad ties or similar type of retaining wall timbers; 6. Remodeling debris; 7. Carpeting; 8. Sinks, concrete laundry tubs and cast-iron plumbing fixtures; 9. Windows and doors; and 10. Lumber. "Cart" or "Roll -Cart" means a wheeled receptacle for storing solid waste that can be emptied by either semi- or fully -automated vehicles. "Collection contract" means the contract described between the contract hauler and the borough for collection of solid waste and transportation to the borough landfill. "Collection service area" means all premises and all units on or within a premises accessible via roads maintained by the state of Alaska, the borough, the city of Kodiak, or the U.S. government, in and around Kodiak City and within the boundaries of the borough, except for the USCG facilities and past milepost one of Anton Larsen Road. "Commercial Account" means a premises or unit that is or would be required to be, serviced by a dumpster. This includes premises used for commercial purposes, premises with more than three residential units, premises with more than three units of any type, and premises which requires a dumpster for solid waste services for any reason. Premises serviced by four roll carts due to lack of space for a dumpster shall be considered commercial. Commercial premises or unit which qualify under the solid waste collection contract for service less than four roll carts shall be treated as residential container for purposes of this chapter. "Commercial Customer" means the owner or authorized account holder of a premises or unit receivina commercial solid waste collection services. Ordinance No. FY2025-03 Page 4 of 20 Page 210 of 329 Review of Ordinance No. FY2025-03, Amending Title 8 Health And Safety Ch... 157 158 159 160 161 162 163 164 165 166 167 168 169 170 171 172 173 174 175 176 177 178 179 180 181 182 183 184 185 186 187 188 189 AGENDA ITEM #2.b. "Compactor" means a receptacle containing a ram that pushes and compresses waste into a container or bale. "Container" means any type of storage receptacle for solid waste; cart, roll -cart, dumpster, or roll -off. "Contract hauler" means the contractor under the municipal solid waste collection contract. "Customer" or "Customer Account" means the person or entity whose name and billing information is associated with the solid waste service beina provided at a unit. either residential or commercial. "Customer Count" is used to calculate the annual fee adjustment for solid waste collection rates for the following contract year. The equation is as follows: number of residential customer accounts plus the number of commercial containers in service. For residential units serviced by self -haul or roll -cart, the customer count is defined by the number of residential customer accounts in service. For a commercial unit serviced by self -haul or roll -cart, the service or container will be counted towards the residential customer accounts number. For commercial units serviced by two -yard front load dumpsters or larger, the customer count is calculated by the number of containers that are in sarviCB_ "Dead animal" means the carcass from an animal, large or small, except part of an animal used for food or other beneficial purpose in accordance with federal, state, or local laws and regulations. Does not include fish or other primarily aquatic animal. "Disposal" or "dispose" means the act or action of discarding solid waste. "Dumpster" means a receptacle for storing solid waste that is picked up with front-end loading vehicles, such as those having a two -to -eight -yard capacity. "Hazardous or toxic waste" means any material that meets the definition of 40 C.F.R. 261 and AS 46.03.900, such as poisons, pesticides, acids, batteries, caustics, infectious or pathological wastes, radioactive materials, explosive or highly flammable materials, oil and petroleum products, and burning or smoldering materials. "Household hazardous waste" means hazardous waste generated atee residential premises or unit. Ordinance No. FY2025-03 Page 5 of 20 Page 211 of 329 Review of Ordinance No. FY2025-03, Amending Title 8 Health And Safety Ch... AGENDA ITEM #2.b. 190 "Manager" means the borough manager or designee 191 "Multifamily" describes people, such as customers, places, such as premises, or thiRgs, SuGh as 192 . 193 "Multifamily premises" meaRS premises that are ROt resideRtial premises, and therefore GGRtaiRS 194 four eF more dwelling units, inGluding , artmeRt , ple„es and trailer ,.OUFts 195 "Owner" means each person or entity identified as holding the title of ownership for a 196 premises or unit. The owner is the responsible party for the unit(s) signing up for a solid 197 waste services account and maintaining that account in good standing with the contract 198 hauler. Owners of multiple premises or units will have more than one account. 199 "Premises" means a tract of land with a building or buildings that generate solid waste which 200 are habitable and located in the contract service area and are safely accessible by vehicles. 201 . 202 "Recyclables" means materials which can be reprocessed, reconditioned, or adapted to use again 203 or for a new use or function. 204 "Residential Account" means a premises or unit that is designed to be a dwelling and that 205 is not included in a commercial account serviced by a dumpster. Residential accounts are 206 serviced by either roll -cart or self -haul services. 207 "Residential Customer" means the owner or authorized account holder of a premises or 208 unit receiving residential solid waste service. 209 . 210 1. it contaiRG ., e two or throe dwellingr,it(s); and 211 2. EaGh dwelling unit is GGGUpied by related iRdividuals, er by five GF feWeF URrelated 212 Vis. 213 "Roll -off' means an open -topped rectangular receptacle for storage, collection, and transport of 214 solid waste that is rolled on and off flatbed collection vehicles via winches or reeving cylinders 215 (hooks). 216 "Scavenging" means the controlled removal of waste materials for recycling or reuse. 217 "Self -Haul" means a residential customer who hauls their own solid waste to a public roll - 218 off dumpster site location and/or the borough landfill. Commercial self -haul is a 219 commercial customer that hauls their own solid waste to the borough landfill. 220 "Sewage solids" means waste that passes the paint filter test, EPA Test Method 9095, published 221 in Test Methods for Evaluating Solid Waste, Physical/Chemical Methods, SW- 846, adopted by Ordinance No. FY2025-03 Page 6 of 20 Page 212 of 329 Review of Ordinance No. FY2025-03, Amending Title 8 Health And Safety Ch... 222 223 224 225 226 227 228 229 230 231 232 233 234 235 236 237 238 239 240 241 242 243 244 245 246 247 248 249 250 251 252 253 254 255 256 AGENDA ITEM #2.b. reference in 18 AAC 60.365, and has been removed from a wastewater treatment system, sewer, septic tank, or other wastewater handling equipment; "sewage solids" includes lagoon dredge, sewer cleanout waste, barscreen grit, and wastewater treatment sludge. "Sharing of a Dumpster" means a dumpster on a premises that has multiple units, and the dumpster is shared between the owners and/or account holders of the units. Owners and/or account holders that elect to share a dumpster need to do so with a written agreement between themselves and the contract hauler. See section 8.25.070.D. "Sole Purpose Dumpster" means a dumpster that is rented from the contract hauler by a customer in which only one type or category of solid waste is allowed to be deposited. See section 8.25.060.8. "Solid waste" means "municipal solid waste" as defined in AS 46.03.900. "Solid waste collection" means the act of removing solid waste from the central storage point of a primary generating source, such as a residence or business, to a place of solid waste disposal. "Solid waste disposal" means the orderly process of finally disposing of solid waste. "Solid waste generator" means anyone who creates solid waste during everyday living and working. "Solid waste storage" means the interim containment of solid waste, in an approved manner, after generation and prior to collection and disposal. "Uninhabitable" means a unit that is not suitable for living or working in. The account holder may apply for this categorization but must prove they do not have any other utility services: electricity, water/sewer, or heat. "Unit" means a whole building, or any portion of a building which is designed for separate occupancy for commercial or residential purposes, which generates solid waste. Units in a single structure with separate entrances and separated by a common wall, are considered separate units regardless of whether they have separate addresses for utility services. "Unit Occupant" means the person or entity occupying, or who has the right to occupy, a unit. 8.25.030 Interpretation. A. Citations. References to "section" or "article" refer to sections or articles in this chapter, unless other citation is provided. References to "subsection" refer to subsections within that section. B. Designees. Reference to any individual borough staff person by title, such as the manager, includes reference to the designee. Ordinance No. FY2025-03 Page 7 of 20 Page 213 of 329 Review of Ordinance No. FY2025-03, Amending Title 8 Health And Safety Ch... AGENDA ITEM #2.b. 257 8.25.040 Solid Wwaste Aaccumulation and Pprevention of Nouisance. 258 A. Solid waste generators may not accumulate/store solid waste at en their premises or unit 259 longer than the period between their regularly scheduled collections or two weeks, whichever is 260 greater. 261 B. A solid waste generator must keep solid waste stored at en that generator's premises or unit 262 as follows: 263 1. In a clean and sanitary manner that does not create a public nuisance or health hazard, 264 in the judgment of the manager; and 265 2. In accordance with all other applicable federal, state and municipal statutes, ordinances, 266 rules, and regulations. 267 The borough may clean up solid waste that is not kept as required and charge the account holder 268 ownerofthe premises the cost, in addition to prosecuting the owner for violation of this chapter. 269 C. While storing or handling human food, animal food, or solid waste, no one may violate 5 AAC 270 92.230 which prohibits the feeding of game and deleterious exotic wildlife, nor in a manner that 271 attracts game, deleterious exotic wildlife, dogs, or cats. 272 273 8.25.050 Litter. 274 In addition to the prohibitions in Chapter 8.20 KIBC, no one may leave solid waste outside a 275 container or place solid waste in another account holder's ; iT cart or dumpster re 1- 276 s# -without that account holder's PeKsen'-S consent. 277 278 8.25.060 Solid Wwaste Csollection Sservice. 279 A. Regular Service. Every owner of a premises or unit in the collection service area must 280 subscribe to and solid waste collection service for its premises or unit by the contract 281 hauler at least weekly, in carts, including bear carts, dumpsters bies, or roll -offs, as administered 282 by the manager, even if that owner self -hauls all or a portion of its solid waste for disposal at the 283 borough landfill or recycling at a processing facility. An owner may authorize a person or entity 284 as the account holder responsible for payment for service for the premises or unit. Regular 285 service must be paid for in accordance with section 8.25.090 of this Chapter at the rates 286 provided in the Borough Solid Waste Collection contract as it may be approved by the 287 Assembly from time to time. If service paid through an authorized account holder other 288 than the owner is either cancelled or becomes more than ninety (90) days delinquent for 289 residential service, or more than sixty (60) days delinquent for commercial service, upon 290 notice to the owner, responsibility for payment for that service from and after the date of 291 notice may revert to the owner. 292 B. Temporary Service h3--�Dumpsters. Any customer who ARyeRe who has a temporary 293 need or conducts construction or demolition at on its premises or unit may subscribe to and pay 294 for solid waste collection service from the contract hauler for container bia or dumpster service. 295 This service is also known as sole purpose dumpster use, where the container used is 296 intended for one type of solid waste. See "sole purpose dumpster" in definitions. 297 298 8.25.070 Solid Wwaste Sstorage and Sset-oeut Sites. 299 A. Storage. Each unit occupant selod waste g8Rerator is responsible for the placement of that 300 unit's container a so that it will not easily be tipped, such as by an animal or the Ordinance No. FY2025-03 Page 8 of 20 Page 214 of 329 Review of Ordinance No. FY2025-03, Amending Title 8 Health And Safety Ch... AGENDA ITEM #2.b. 301 wind. Lids on bins e carts or dumpsters must be kept closed to keep out rain, snow, and animals. 302 Surplus liquids must be drained from solid waste and placed in watertight bags before discarding 303 them in containers. 304 B. Set -Out. 305 1. Site. Carts or dumpsters bias must be placed in the following locations by the contract 306 hauler or unit occupant. selid waste ^„u^^+,^., seFViGe reGipieRt: 307 a. Roadside; 308 b. In an adjacent alley; or 309 c. Within five (5) three feet of the drivable roadway on which the contract hauler can 310 drive its collection vehicles. 311 For example, if the serviced premises or units are adjacent to more than one street, alley, 312 or roadway, the contract hauler may instruct the account holder ^„mer to set out 313 containers on only one specified street, alley, or roadway. 314 The contract hauler may require alternative placement based on site-specific conditions. 315 2. Proper Handling of Solid Waste and Storaqe Containers. RequiFed AGUPPR AeyeRe 316 wine ro a waste ^01184_, �o 317 a. All customers, whether with in a cart, dumpster, bid or roll -off, must do the following: 318 i. a— Discard only securely bagged or bundled solid waste inside the cart, 319 dumpster, bid or roll -off provided by the contract hauler for that account holder's 320 use; and 321 ii. b— Clean up any solid waste discarded, scattered, littered, or otherwise strewn 322 outside the container (no matter the size) ^^rt, h;^ GF FAIT-^ff caused by the 323 person discarding the waste or by improper use of the container Gart, NR OF F^" 324 of -which causes solid waste to be left outside the container.. 325 improper use of a Gart, biR OF Fell Off ORGIU 326 iii. The limitations in (i) and (ii) do not apply to set out of bulky items for 327 pickup in accordance with the terms for bulky item pickup service under the 328 Solid Waste Collection contract as it may be approved by the Assembly from 329 time to time. 330 b. Improper Use and/or Prohibited Conduct: 331 The following conduct relating to use of waste containers is improper and is 332 prohibited: 333 i. Discarding any prohibited material in a container for collection by the contract 334 hauler except solid waste. 335 ii. Discarding solid waste in containers in excess of the weight limit that the 336 contract hauler prescribes on the container. 337 iii. Leaving any container lid or door open. 338 iv. Placing solid waste on top of or allowing solid waste to protrude from the 339 container. 340 v. Discarding dead animals in the container. 341 vi. Placing the solid waste container, intended for pick-up, anywhere except 342 the designated set -out site. 343 vii. Using another container that was not provided by the contract hauler for 344 that unit's solid waste collection service. Ordinance No. FY2025-03 Page 9 of 20 Page 215 of 329 Review of Ordinance No. FY2025-03, Amending Title 8 Health And Safety Ch... AGENDA ITEM #2.b. 345 viii. Discarding commercial waste in a residential roll -off. 346 ix. Discarding any solid waste outside the container, including the following 347 items; 348 a. Litter, 349 b. Bulky items, 350 c. C&D debris, or 351 d. Hazardous or toxic waste. 352 c. Violations. 353 It shall be a violation of this section for any person to place or discard waste 354 in a manner prohibited in subsection (B)(2)(b) of this section. 355 H. I0s g selfidwaste ei-i+fie +he solid , os+e eente fine eXGept fer bulky i+ems 356 d'SGarwed at the time when nrl plaGe where the r n+ra Gt hauler i abligated to 357 eollee+ bulky items. 358 i+i. �,m,gte�,h+�o� Ie+eh e e p+ finer Ifid� 359 iy Planing solid waste on top of or allowingolid waste to protrude from the 360e�,er 361 362 healer n rihes nn the eontomer 363 vi. DOSGaFding solid waste feF PiGkUp anywhere eXGept at the set out site deSigRated 364 by the eentraet ha,,Ier 365 366 i. a op„ene ,.,he ne rd , ,�+e r--.- eeue tfinn ,gt n„+ dfiseerd 367 deed o -FIs OR the Gert The dfiseerdipo of a olid waste outside the ear+ is 368 else prehihited induding the felIeWine i+ems. 369 370 H. Bulky items as deffined by KIQ(' 8.25. n7n 371 .... G&D dehris as defiped by KIBG Q a§ njn• and 372 W. Hazardeus er+o..fie waste as definer! by KIBG 8.25.024. 373 b. ARYGRe who utilizes selid waste biR OF Fell Off GE)I!eGt'OR sepfiGes must seGUFelY GI 374 and lea-ratdh. he Idm a eII off de vim- The die rain of e elid , ste hside +ho 375 hip eir rell eff is Fehihi+ed ORGlUding, but not limited to, the following 'tome. 376 i 377 ii. Bulky items as defined by KIBG Q 25 n'Jn 378 i+i G&D dehros as defined by KIBG and 379 jy ua_erde, er to.,fie ,.,acS+e EAS deffined h„ KIBG 8.25.02-0-. 380 Ale OR e . diseer . o motorial OR roll oa ep+ for the Fell eff n „idea by the 381 ntreet he, filer fer that n elfid I.A.9aRme eelleo+fine J;PWOAPI 382 C. Clearance and Access. An account holder serviced by a roll -cart GaFt GuSteme must 383 maintain a minimum of five 5 three feet of clearance between each roll -cart and any mailbox, 384 vehicle, snow berm, or other object that would obstruct collection, including the arm on an 385 automated collection truck. An account holder serviced by a roll -cart Gert Gustemer must 386 maintain clear access to the roll -cart set -out site so that the collection vehicles can lift and empty 387 roll -carts, including clearing away snow and other obstructions, such as parked vehicles. Ordinance No. FY2025-03 Page 10 of 20 Page 216 of 329 Review of Ordinance No. FY2025-03, Amending Title 8 Health And Safety Ch... 388 389 390 391 392 393 394 395 396 397 398 399 400 401 402 403 404 405 406 407 408 409 410 411 412 413 414 415 416 417 418 419 420 421 422 423 424 425 426 427 428 429 430 AGENDA ITEM #2.b. D. Dumpster Bin Sharing. A premises that has multiple units may elect to share a dumpster if they have the following: i. Account holders that elect to share must have a written agreement outlining the shared responsibility. ii. Written consent, agreement, and confirmation from the contract hauler. If the contract hauler directs multiple units to share a dumpster on the contract hauler's initiative, the contract hauler must provide written notice as required by the Solid Waste Collection contract as it may be approved by the Assembly from time to time. E. Safety. Each account holder must maintain its set -out site so that it is safely accessible to contract hauler's vehicles and employees. If the contract hauler determines that the set -out site is not safe, it is not obligated to provide collection service there. Contractor will coordinate safe set -out location with the account holder GUFfor each occurrence. 8.25.080 Sniod dmgnard Contract Hauler Refusal of Service. A. The contract hauler is not obligated to provide collection service in any of the events listed in this section or in the collection contract. 1. Solid Waste Only. No one may discard any material in a container for collection by the contract hauler except solid waste. The contract hauler may inspect the contents of any container. The contract hauler must not collect any container that stores materials other than solid waste. In that event, the account holder ^�,�e must pay the contract hauler the fee outlined in the approved fee schedule in the Solid Waste Collection contract as it may be approved by the Assembly from time to time. the ,marag8f-. 2. Containerized. No one may discard any solid waste for collection by the contract hauler outside their container eXGept fer bulky items diSGard-ed At the tome when and plaGe where the G RtraGt hauler ; obligated +„ GE)I!eGt bulky item He The unit occupant must tightly close container lids. They may not place solid waste on top of a container or allow solid waste to protrude from the container. The contract hauler may refuse to collect any overfilled container. 3. Within Weight Limits. No one may discard solid waste in containers in excess of the weight limit that the contract hauler prescribes on the container. The contract hauler may refuse to collect any overweight container. 4. At Proper Set -Out Site. No one may discard solid waste for pickup by the contract hauler anywhere except at the set -out site designated by the contract hauler. The contract hauler may refuse to collect any misplaced container or bulky waste. 5. Unsafe Condition. The contract hauler is unable to safelv access the solid waste container to be collected. 6. Past Due Balances. Dumpster customers with a past due balance on their account of sixty (60) days or more. Roll -cart customers with a past due balance on their account of ninety (90) days or more. Ordinance No. FY2025-03 Page 11 of 20 Page 217 of 329 Review of Ordinance No. FY2025-03, Amending Title 8 Health And Safety Ch... AGENDA ITEM #2.b. 431 7. &-Contaminated Recyclables. If the contract hauler provides recyclables collection service, 432 no one may discard any material in a recyclables container for collection by the contract 433 hauler except recyclables. The contract hauler may inspect the contents of any recyclables 434 container. If the The contract hauler finds a recyclables MUSt ^„Ile,.+ +h ,+ container that 435 contains other materials other than recyclables they must document the misuse of the 436 recyclable container, notify the unit account holder by phone, email, and written letter 437 form, of the documented misuse. The account holder will be required to pay the fee 438 associated with the misuse outlined in the approved fee schedule in the Solid Waste 439 Collection contract as it may be approved by the Assembly from time to time. and 440 diSGard its Gentents as refuse. in that event, the Uo+r,mer must pay the ntraGt ha. for 441 $50 .00, er n+her a n+ established by the m 442 B. No Refills. No one may discard a second load of solid waste in a cart or dumpster 443 immediately after the contract hauler lifts and dumps the container. 444 C. Non -Collection Fees. 445 1. In the event of a customer is in violation of a Contract Service Exception at a 446 premises or unit, the contract hauler is required to notify the customer in writing of 447 the specific violation. 448 2. The authorized account holder may be subject to fees outlined in the contract 449 Service Fee Schedule. 450 451 8.25.090 Billing and- for Contract Hauler Services. 452 A. Payment. Every owner of a premises or unit in the collection service area must have an 453 open and good standing account either in their own name or through an authorized 454 account holder. Each account holder shall pay the contract hauler for solid waste collection 455 service at the following times: 456 1. Monthly by the twenty-fifth day of each month, in advance, or other time provided in the 457 collection contract; or 458 2. As determined by the manager. 459 B. Late Fees. If the contract hauler is not timely paid, the contract hauler may charge the 460 following late payment fees: 461 1. Established under the collection contract; or 462 2. One percent per month on the outstanding balance with a minimum of $1.00 for each 463 month. 464 C. Deposits. If, following request by the contract hauler, the borough reasonably determines that 465 an owner of or account holder of a premises or unit who is commencing new service, or who 466 is becoming responsible for existing service, has not established sufficient credit in the 467 community to assure timely payment of solid waste collection service charges, the contract hauler 468 may require a deposit in an amount equal to two months' billings for the collection service 469 requested, or other amount determined by the manager. The contract hauler may retain the 470 deposit for up to one year, after which the owner may request the contract hauler to return the 471 deposit if the owner has established a record of timely payment. Neither the borough nor the 472 contract hauler is obligated to escrow or pay interest on the deposit. 473 D. Responsibility. If the owner of a premises or unit has authorized a separate designated 474 account holder per the aareement between owner and account holder. the authorized Ordinance No. FY2025-03 Page 12 of 20 Page 218 of 329 Review of Ordinance No. FY2025-03, Amending Title 8 Health And Safety Ch... AGENDA ITEM #2.b. 475 account holder will be held responsible as the account holder for the account with the 476 contract hauler. If an authorized account holder who is not the owner terminates services, 477 is residential and ninety (90) days delinquent in payment on the account, or is commercial 478 and sixty (60) days delinquent in payment on the account, the contract hauler may, 479 following the procedures in the Solid Waste Collection contract as it may be approved by 480 the Assembly from time to time, terminate the account of the authorized account holder 481 and place the service in the name of the owner as the account holder. Any delinquent 482 amount accrued due to non-payment by an authorized account holder who is not the owner 483 shall remain the responsibility of the authorized account holder. 484 485 8.25.100 Transportation of Solid Waste. 486 Everyone who transports cargo such as ashes, leaves, or other materials that might blow, fall, 487 spill, drop, leak, sift, or otherwise escape from the transport vehicle during passage over a public 488 alley, street, or road must contain the cargo by either of the following means: 489 A. Tight enclosure or container that is an integral part of the vehicle; or 490 B. A separate cover that is fastened onto the vehicle and secures the top and all sides of the 491 cargo. 492 493 8.25.110 Proper Disposal of Ssolid Wwaste. 494 No one may dispose of solid waste generated in the contract collection service area or --USCG 495 except at state -permitted solid waste processing and disposal facilities in the borough, including 496 any recyclables processing center operating in compliance with law and the borough landfill, 497 unless exempted in writing by the manager. 498 499 8.25.120 Disposal of Hazardous and Toxic Wastes: Used Motor Oil or Electronic Waste. 500 hazardous and toxicwastes— Used motor om! — Electronic write. 501 A. Non -borough Materials Banned. No one may dispose of hazardous or toxic waste, or used 502 motor oil, which is generated from outside the borough; at the borough's landfill, a disposal 503 facility that has permitted requirements that must be followed. is the borough. 504 B. Residential Used Motor Oil. All residents must dispose of used motor oil at the borough 505 landfill or a facility operating in compliance with the law to retain used motor oil. The 506 borough will charge fees in accordance with the Kodiak Island Borough Fee Schedule as 507 it may be approved by the Assembly from time to time. F„^n,^RB must dispose of a ed 508 Fneter eil generated on residential premises, at aRY faGility eperating on GemplianGe with law, 509 iRGIWdiRg the bGFGUgh Iandfill. The beFeugh Iandfill Will Gharge the f()lI0WiRq fees er ether fees 510 deter..,iRed by the r 511 1. Up to five gallons per month without charge; or 512 2. In excess of five gallons per month, but less than 10 gallons per month in containers not 513 exceeding five gallons in size, for the charge in the borough user fee schedule. 514 C. Household Hazardous Waste. All residents must Everyone must dispose of household 515 hazardous waste at the borough landfill, or other designated borough facility operating in 516 compliance with the law to retain the household hazardous waste, or at a sponsored 517 collection event. The borouah will charae fees in accordance with the Kodiak Island Ordinance No. FY2025-03 Page 13 of 20 Page 219 of 329 Review of Ordinance No. FY2025-03, Amending Title 8 Health And Safety Ch... AGENDA ITEM #2.b. 518 Borough Fee Schedule as it may be approved by the Assembly from time to time., and pay 519 the borough the fellowing fees or other fees as determined by the m 520 1. Up to 40 pounds per month without charge; or 521 2. More than 40 pounds per month for the charge in the borough user fee schedule. 522 D. Electronic Waste. All residents EveFYGRe—must dispose of electronic waste, computer 523 monitors, cathode ray tubes, circuit board containing components, cables, and cable boxes, 524 generated on premises that are not residential, such as businesses or schools, at a facility 525 designated by the manager, or, absent designation, at a facility operating in compliance with law 526 and pay the charges established at the facility. 527 528 8.25.130 Prohibition on Bburning of Ssolid Wwaste. 529 In addition to complying with Chapter 8.35 KIBC, no one may burn any materials that cause odor 530 or black smoke that has an adverse effect on nearby persons or property, as determined by the 531 manager, including the following: 532 A. Animal carcasses; 533 B. Petroleum-based materials such as plastic bags, or other materials contaminated with 534 petroleum or petroleum derivatives; and 535 C. Any other solid waste. 536 537 8.25.140 Solid Wwaste Contract Hauler Only. handling services. 538 No one may directly or indirectly provide, organize, manage, direct, or sponsor solid waste 539 handling services to someone else for compensation in cash, kind or credit, except the following: 540 A. The contract hauler; and 541 B. Someone transporting solid waste as an incident of its primary business, such as a contractor 542 transporting construction and demolition debris, in its own vehicles to the borough landfill. 543 544 8.25.150 General Cc-onditions of Sservice. 545 A. Collection Hours. Monday through Friday, 5 a.m. until 5 p.m. or as determined from time to 546 time by the manager. 547 B. Vehicles. Contract hauler will keep each vehicle that it uses to provide solid waste collection 548 service clean, flushed and washed daily, well painted, and in good repair, in reasonable judgment 549 of the manager. 550 C. Carts and Dumpsters &-s. The contract hauler will provide everyone that receives cart or 551 dumpsterbk4 services with use of a cart(s) or dumpster(s), G h'n „r h'ns for storage of solid 552 waste. Carts and dumpsters bills will remain the property of the contract hauler, unless otherwise 553 provided in the collection contract. 554 D. Self -Haul. The contract hauler must provide residential roll -off services to be collected 555 at a frequency that coincides with the number of residential self -haul customers to receive 556 a standard weekly service. 557 E. B. Account Holder Customer Rights Notice. The contract hauler must provide each account 558 holder sesternef with a written "account holder's ^-,s+timer's rights" notice, in format and content 559 satisfactory to the manager, including the following: 560 1. Type and capacity of subscribed containers; 561 2. The day(s) s of service; Ordinance No. FY2025-03 Page 14 of 20 Page 220 of 329 Review of Ordinance No. FY2025-03, Amending Title 8 Health And Safety Ch... AGENDA ITEM #2.b. 562 3. The location of the container set -out site; 563 4. A description of "solid waste" that may be discarded, and a list including examples of 564 materials that may not be discarded, such as household hazardous waste, bulky items, and 565 electronics with alternatives for safe and legal discard; 566 5. Schedule of monthly service charges; 567 6. A description of optional services, such as scheduled or on-call collection of bulky waste, 568 collection of containers from atee the premises or unit rather than at the public set -out site, 569 certain container exchanges, dumpster bimp locks, etc., with applicable charges; and 570 7. Any other matters required by the manager. 571 572 8.25.160 Prohibition of Sscavenging and Ttampering. 573 A. Solid Waste Removal Wwithout Permission. No one may remove solid waste from another 574 customer's SeMeGne elS container. See "container" in definitions. w+h^„+ the ,.,ri++on 575 P8FMiG6ieR of the individual or entity that pays for solid waste collection services with that 576 rnntainer n oi.vns, that G.AtA o n+ the fGlIe .,iRg: 577 1. The contract hauler; 578 2. A law enforcement officer; 579 3. A borough employee; or 580 4. Someone authorized and directed by the manager., S„^h as snmenne ^„n,+,,,.+in,. selid 581 wast.9��te au,++s 582 B. Use of Container Wwithout Permission. No one may tamper with or use another customer's 583 selmleelne else's container for any purpose without the written permission of the individual or entity 584 that pays for solid waste collection services with that container or owns that container. 585 586 8.25.170 Ownership. 587 Solid waste, or any other discarded material, remains the property of the generator until the 588 occurrence of any of the following events: 589 A. Public Trash Cans. The generator legally discards the solid waste; for example, a restaurant 590 customer discards a beverage container into a refuse receptacle provided by the restaurant where 591 the customer purchased the beverage; or an automobile passenger discards litter in a refuse 592 receptacle located at a gas station for use of customers. 593 B. Self -Haul. The owner, account holder, or unit occupant, delivers and deposits the solid 594 waste generated at their premises or unit into a residential roll -off container or at the 595 landfill. 596 PFeM4686 Where G-Glid- I.Yalste .*6 @IGRWated F8.M.0-V883 Gelid M.0 -A648 .1A_G_AtP_d_ GR the pFemises and legally 597 diSGards the solid waste; for example, a resideRt self hauls yard debris to the bOFE)Ugh baleF and 598 lel 599 C. Contract Hauler Collection. The contract hauler collects solid waste and recyclables (if 600 applicable) from its account holder's G "vcSten,ce set out site and recycles or disposes of it in 601 accordance with law. 602 Absent the occurrence of these events, solid waste, or other material, remains the property of the 603 generator even if the generator abandons the solid waste, exercises no dominion or control over 604 the solid waste or asserts no ownership of the solid waste. If the generator abandons that solid Ordinance No. FY2025-03 Page 15 of 20 Page 221 of 329 Review of Ordinance No. FY2025-03, Amending Title 8 Health And Safety Ch... AGENDA ITEM #2.b. 605 waste, for example by litter or illegal dumping, the manager may clean up and discard the solid 606 waste and charge the generator the related solid waste handling costs. 607 608 8.25.180 Baler Ffacility and Ssanitary =landfill. 609 A. The borough will provide for the disposal of solid waste generated in the collection service 610 area, at the borough baler facility and sanitary landfill or at another facility or in another manner 611 approved by the assembly, such as a materials processing or composting facility. 612 B. At the borough baler facility and sanitary landfill, no one may do any of the following: 613 1. Enter outside of posted opening hours, unless otherwise authorized by the borough; or 614 2. Deliver any materials prohibited under KIBC 8.25.200; or 615 3. Discard any material without first paying applicable user fees under KIBC 8.25.190; or 616 4. Dispose of any material in an area other than a designated area. 617 618 8.25.190 User Ffee Sschedule. 619 A. Enterprise Funding. By resolution, the assembly will set fees for solid waste management 620 services provided at the borough owned or operated facilities, including disposal of solid waste 621 and household hazardous waste at borough's baler facility and the sanitary landfill, sufficient to 622 cover the facilities' costs of operation, maintenance, and capital improvements without subsidy 623 from any other source, as an enterprise and nonsubsidized freestanding operation. 624 B. Cash or Commercial Charge Accounts. No one may deliver any material to a facility owned 625 or operated by the borough without paying applicable fees established by resolution of the 626 assembly in cash upon delivery, except the following users: 627 1. The contract hauler and other commercial users determined by the manager, such as 628 contractors that regularly deliver construction and demolition debris to the borough landfill, 629 which may establish charge accounts under subsection D of this section. 630 C. Schedule. The assembly will establish a user fee schedule, which may provide fees for 631 different categories of service, including the following: 632 1. Per unit of weight, such as ton, of solid waste; 633 2. Per unit of time, such as a half-hour, for materials that require special handling by facility 634 personnel upon delivery, in addition to the applicable fees per ton; 635 3. For types and amounts of hazardous and toxic waste; or 636 4. For any other materials. 637 D. Charge Accounts. The manager may extend credit for user fees as follows: 638 1. An applicant may obtain a credit application from the director of finance or their his 639 designee; 640 All credit applications are subject to approval by the director of finance in their hiss discretion 641 and this may include a deposit. The borough may retain the deposit for up to one year, after 642 which the owner may request the return of the deposit if borough determines that the 643 applicant has established a record of timely payment. The borough is not obligated to escrow 644 or pay interest on the deposit; 645 2. The charge account holder must pay bills within 30 days after the borough mails the 646 monthly bill; and 647 3. The director of finance may revoke credit and charging privileges without notice to the 648 charge account holder at any time an account becomes delinquent. Ordinance No. FY2025-03 Page 16 of 20 Page 222 of 329 Review of Ordinance No. FY2025-03, Amending Title 8 Health And Safety Ch... AGENDA ITEM #2.b. 649 650 8.25.200 Prohibited Ddisposal. 651 A. Unpermitted. No one may deliver to, deposit at, or dispose in the borough landfill any of the 652 following materials: 653 1. Material prohibited under the borough's solid waste disposal permit issued by the Alaska 654 State Department of Environmental Conservation; 655 2. Polluted or contaminated soil as defined in 18 AAC 60, 18 AAC 75 or 18 AAC 78; and 656 3. Sewage sludge for which no test results, required by law (e.g., 18 AAC 60.365) or as 657 determined by the manager, have been submitted to the borough. 658 B. Exceptions. Exempt waste described below is prohibited from disposal unless it meets the 659 following requirements: 660 1. It is mixed with nonexempt waste; 661 2. There is a public health, safety, or welfare threat or environmental problem associated 662 with management of the exempt waste as determined by the manager; or 663 3. The exempt waste is being managed in a manner that causes or contributes to a 664 nuisance. 665 "Exempt wastes" means the following: 666 1. Land clearing waste, including excavated dirt, rock, soil, butt ends, stumps, and other 667 similar waste; 668 2. Tree limbs and other foliage or woody debris, sometimes referred to as "slash," in a timber 669 harvest area; 670 3. Bricks, mortar, and Portland cement type concrete, including reinforcing steel that cannot 671 be easily removed; 672 4. Crumb rubber used in asphalt paving; 673 5. Crushed glass; 674 6. Crushed asphalt pavement used: 675 a. In a building pad or parking area as road base, or pavement; or 676 b. As a material to construct a containment berm for a tank farm. 677 678 8.25.210 Applicability of Ffederal, Sstate, and Llocal Ssolid Wwaste Llaw. 679 Solid waste law and the rules, regulations, provisions, and conditions promulgated under that law 680 (as they may be amended, repealed, or replaced) applies in the borough and failure to comply 681 with solid waste law is a violation of this chapter. The borough may, but is not obligated to, take 682 enforcement actions or seek remedies for violation of solid waste law. 683 Examples of solid waste law follow: 684 A. With respect to environmental protection: 685 1. Comprehensive Environmental Response, Compensation and Liability Act of 1982 (42 686 U.S.C. Sections 9601 et seq.) ("CERCLA"); 687 2. Resource Conservation and Recovery Act (42 U.S.C. Sections 6901 et seq.) ("RCRA"); 688 3. Clean Air Act (42 U.S.C. Sections 1351 et seq., 42 U.S.C. Sections 7401 — 7642); and 689 California Clean Air Act (Health and Safety Code Sections 1251 et seq. and Health and Safety 690 Code Sections 39000 et seq.); 691 4. Emergency Planning and Community Right to Know Act (42 U.S.C. Sections 11001 et 692 seq.); Ordinance No. FY2025-03 Page 17 of 20 Page 223 of 329 Review of Ordinance No. FY2025-03, Amending Title 8 Health And Safety Ch... AGENDA ITEM #2.b. 693 5. Alaska Department of Environmental Conservation, Solid Waste (18 AAC 60); 694 6. Litter receptacles (18 AAC 64.005 — 18 AAC 64.250); 695 7. Hazardous waste (18 AAC 62.010 — 18 AAC 62.990); 696 8. Pesticide control (18 AAC 90.010 — 18 AAC 90.990); and 697 9. Oil and other hazardous substances pollution control (18 AAC 75.005 — 18 AAC 75.990). 698 B. With respect to solid waste handling labor: 699 1. Occupational Safety and Health Act (29 U.S.C. Sections 651 et seq.), including the Solid 700 Waste Disposal Facility Criteria promulgated by the U.S. EPA on October 9, 1991 (40 C.F.R., 701 Parts 257 and 258); 702 2. Immigration Reform and Control Act of 1986 (PL.99-603). 703 C. Miscellaneous: 704 1. Civil Rights Act of 1964 (Subchapter VI or Chapter 21 of Title 42). 705 706 8.25.220 Administration, limplementation, and Eenforcement. 707 The manager is authorized to administer, implement, and enforce this chapter and promulgate 708 related solid waste policy, unless this chapter expressly names another person. The manager 709 may request assistance from other persons or request that other persons administer, implement 710 and enforce all or a portion of this chapter. Examples of other persons are: 711 A. The director of finance or the auditor -controller, for example, with respect to collection of user 712 fees; 713 B. City of Kodiak police department; 714 C. Borough attorney; 715 D. Other borough departments; 716 E. District attorney; 717 F. Alaska State Department of Environmental Conservation; 718 G. Alaska Department of Fish and Game; 719 H. Alaska State Troopers; and 720 I. A code enforcement officer designated under KIBC 1.20.030. 721 722 8.25.230 Enforcement Oefficer. 723 Repealed by Ord. FY2020-09. 724 725 8.25.240 Violations, Eenforcement A_actions and Rr-emedies. 726 A. Violations. 727 1. Per Failure. Each failure to comply with any provision of this chapter or any regulation 728 promulgated under this chapter constitutes a separate violation. For example, scavenging is 729 a separate violation for each container from which materials are scavenged. 730 2. Per Day. Each day a violation continues is a separate violation. For example, failure to 731 maintain a collection vehicle in accordance with KIBC 8.25.150(B) is a separate violation for 732 each day until the vehicle is repaired. 733 B. Enforcement Actions and Remedies. 734 1. Actual Violations. If the manager believes that someone has violated any provision of this 735 chapter, whether that person is acting or failing to act in the capacity of a principal, agent, Ordinance No. FY2025-03 Page 18 of 20 Page 224 of 329 Review of Ordinance No. FY2025-03, Amending Title 8 Health And Safety Ch... 736 737 738 739 740 741 742 743 744 745 746 747 748 749 750 751 752 753 754 755 756 757 758 759 760 761 762 763 764 765 766 767 768 769 770 771 772 773 774 775 776 777 778 779 AGENDA ITEM #2.b. employee or otherwise, then the manager may institute any enforcement action and exercise any legal or equitable remedy available to the borough under law, such as the following: a. Civil actions seeking a penalty of up to $250.00 per violation; b. Civil actions seeking injunctive relief; c. Civil suits seeking damages or civil penalties, including the costs of any corrective action that the manager deems necessary to mitigate consequences of violations, whether acts or omissions; or d. Proceedings to declare a property a public nuisance and abate the nuisance as authorized by AS 46.03.870(c). 2. Imminent Violations. If the manager believes that a person will imminently violate any provision of this chapter, whether that person is acting or failing to act in the capacity of a principal, agent, employee, or otherwise, then the manager may exercise any equitable remedy available to the borough under law, such as a temporary restraining order or injunction. 3. Enforcement Actions and Remedies Are Cumulative, Not Exclusive. Enforcement actions and remedies are cumulative, not mutually exclusive. The manager may institute any single enforcement action or exercise any single remedy or a combination of multiple enforcement actions and remedies, separately or simultaneously. The manager need not conclude any particular enforcement action or exhaust any particular remedy before instituting other enforcement action or exercising any other remedy. 4. Penalties and Remedies Are Not Limited. The penalties and remedies provided for violation of this chapter are in addition to and not in lieu of any other penalty or remedy provided for in state law or otherwise. Effective Date: This ordinance takes effect upon approval of this Ordinance. ADOPTED BY THE ASSEMBLY OF THE KODIAK ISLAND BOROUGH THIS DAY OF , 2024 KODIAK ISLAND BOROUGH Scott Arndt, Borough Mayor ATTEST: Nova M. Javier, MMC, Borough Clerk Introduced by: Manager/Solid Waste Contract Committee First reading: Second reading/public hearing: VOTES: Ayes: Noes: Ordinance No. FY2025-03 Page 19 of 20 Page 225 of 329 Review of Ordinance No. FY2025-03, Amending Title 8 Health And Safety Ch... AGENDA ITEM #2.b. 780 781 Ordinance No. FY2025-03 Page 20 of 20 Page 226 of 329 Review of Ordinance No. FY2025-03, Amending Title 8 Health And Safety Ch... KODIAK ISLAND BOROUGH STAFF REPORT OCTOBER 10, 2024 ASSEMBLY WORK SESSION AGENDA ITEM #2.c. SUBJECT: Discuss Ordinance Amending Various Sections Of The Kodiak Island Borough Code Title 17 Zoning To Include Defined Intent And Development Standards For Accessory Dwelling Units ORIGINATOR: Chris French, CDD Director RECOMMENDATION: For Assembly discussion. DISCUSSION: The Kodiak Island Borough Planning & Zoning Commission began working on potential amendments related to accessory dwelling units starting with a work session in May of 2023. After many months of reviewing the existing regulations in light of accessory dwelling unit regulation guides from AARP and AML; the Commission held its first public hearing on amendments related to accessory dwelling units on February 21, 2024. The Commission held three public hearings on the amendments, making multiple revisions to the draft ordinance. On June 18, 2024, the Planning & Zoning Commission voted 4 to 1 to recommend approval of Ordinance No. FY2025-03 to the Assembly. As a part of the Commission's review of potential amendments related to accessory dwelling units, the Commission reviewed several documents; the most important ones being the ABCs of ADUs from AARP and the ADU's and Don'ts from AML. Both of these documents are attached to this agenda item. The work session on the ADU amendments will be split into two meetings to increase focus on the proposed changes. The first is on October 10, 2024, this meeting will focus on half of the changes proposed in the ordinance. The changes to be discussed at the October 10, 2024 meeting will be: • Removal of the conditional use permit (CUP) requirement for those ADUs that meet the development standards. The CUP remains an option for ADUs that do not meet one or more development requirements. • Changes to the current definition of an accessory dwelling unit based on best practices. • Changes to the parking requirement of ADUs within the City of Kodiak and those outside the City. The proposed changes would require one space for ADUs in the City of Kodiak and two spaces for ADUs in the borough. This issue garnered a lot of discussion at the Planning & Zoning Commission meetings. • Changes to the size restriction to 800 square feet for all ADUs no matter the zoning district. At the October 31, 2024 Assembly work session the following changes will be discussed: • The deletion of the requirement that the owner of the property must live in either the principal unit or the accessory dwelling unit. This change garnered a lot of discussion at the Commission meetings. Kodiak Island Borough Page 227 of 329 Discuss Ordinance Amending Various Sections Of The Kodiak Island Borough... AGENDA ITEM #2.c. KODIAK ISLAND BOROUGH STAFF REPORT OCTOBER 10, 2024 ASSEMBLY WORK SESSION Added a requirement that ADUs must be behind or to the side of the principal dwelling unit on the property. This was added to address concerns that an ADU could be placed in front of the principal structure; therefore, it would not have the appearance of being an accessory unit. Added a requirement that a property must meet the minimum lot size of the zoning district the property is located in before the property is allowed to apply for an ADU. Removed the R2 zone from the list of zones that permit ADUs. This was removed because the R2 zone already permits two units on a property. ALTERNATIVES: FISCAL IMPACT: OTHER INFORMATION: Kodiak Island Borough Discuss Ordinance Amending Various Sections Of The Kodiak Island Borough... Page 228 of 329 AGENDA ITEM #2.c. The Al of ADUc I A guide to Accessory Dwelling Units and how they expand housing options for people of all ages n�� DETACHED ADU GARAGE -CONVERSION ADU AARP.org/ADUs BASEMENT ADU ATTACHED ADU SECOND -STORY ADU Page 229 of 329 Discuss Ordinance Amending Various Sections Of The Kodiak Island Borough... .T.1��0 Websites: AARP.org and AARP.org/Livable Email: Livable@AARP.org Facebook: /AARPLivableCommunities Twitter: @AARPLivable Free Newsletter: AARP.org/LivableSubscribe Orange Splot LLC Website: OrangeSplot.net Email: eli@OrangeSplot.net AGENDA ITEM #2.c. AARP is the nation's largest nonprofit, nonpartisan organization dedicated to empowering people 50 or older to choose how they live as they age. With nearly 38 million members and offices in every state, the District of Columbia, Puerto Rico and the U.S. Virgin Islands, AARP strengthens communities and advocates for what matters most to families: health security, financial stability and personal fulfillment. The AARP Livable Communities initiative works nationwide to support the efforts by neighborhoods, towns, cities, counties, rural areas and entire states to be livable for people of all ages. Orange Splot LLC is a development, general contracting and consulting company with a mission to pioneer new models of community -oriented, affordable green housing developments. Orange Splot projects have been featured in the New York Times, Sunset magazine and on NBC's Today show. (The detached ADUs on page 3 and the back cover are by Orange Splot.) Company founder Eli Spevak has managed the financing and construction of more than 300 units of affordable housing, was awarded a Loeb Fellowship by the Harvard University Graduate School of Design, cofounded the website AccessoryDwellings.org and serves as chair of Portland, Oregon's Planning and Sustainability Commission. AARP and Accessory Dwelling Units Visit AARP.org/ADU to order or download our free publications and find more resources about ADUs. AARP The ABCs of ADUs A guide to Accessory Dwelling Units and how they expand housing options for people of all ages Y. AARP..,g/ADUs .......o.o. ss.�e..e.w -_AARP CCESSORY WELLING 1 NITS Model State Act and Local Ordinance IIIIIIIII AARP's ADU Publications (from left): This introductory guide; guidance about creating an ADU model state act or local ordinance; a detailed guide to design and development. Copyright ©AARP 2021, 2nd edition (1st edition published in 2019) 1 AARP is a registered trademark. I All rights reserved. No part of this publication may be reproduced in any form or by any means without the prior written permission of AARP, except brief quotations in connection with reviews written specifically for inclusion in magazines, newspapers or websites, or limited excerpts strictly for personal use. Page 230 of 329 Discuss Ordinance Amending Various Sections Of The Kodiak Island Borough... AGENDA ITEM #2.c. Welcome! Come On In Accessory dwelling units are a needed housing option for people of all ages We know from surveys by AARP and others that a In fact, in the 2021 AARP Home and Community majority of Americans prefer to live in walkable Preferences Survey, adults age 18 or older who would neighborhoods that offer a mix of housing and consider creating an ADU said they'd do so in order to: transportation options and are close to jobs, schools, • provide a home for a loved one in need of care (86%) shopping, entertainment and parks. • provide housing for relatives or friends (86%) These preferences — coupled with the rapid aging of the United States' population overall, the decrease in households with children and the national housing shortage — will continue to boost the demand for smaller homes and affordable, quality rental housing. As small houses or apartments that exist on the same property lot as a single-family residence, accessory dwelling units — or ADUs — play a major role in serving a national housing need. This traditional home type is reemerging as an affordable and flexible housing option that meets the needs of older adults and young families alike. • have a space for guests (82%) • create a place for a caregiver to stay (74%) • increase the value of their home (69%) • feel safer by having someone living nearby (67%) • earn extra income from renting to a tenant (63%) Since ADUs make use of the existing infrastructure and housing stock, they're also environmentally friendly and respectful of a neighborhood's pace and style. An increasing number of towns, cities, counties and entire states have been adapting their zoning or housing laws to make it easier for homeowners to create ADUs. ■ DETACHED ATTACHED INTERIOR (UPPER LEVEL) ABOVE GARAGEGARAGE CO_JL_ 6 NVERSION A Accessory dwelling units (or ADUs) come in many shapes and styles. The ABCs of ADUs is a primer for elected officials, policymakers, local leaders, homeowners, consumers and others to learn what accessory dwelling units are and how and why they are built. The guide also suggests best practices for how towns, cities, counties and states can support the creation of ADUs as a way to expand and diversify housing options. The ABCs of ADUs I AARP 1 Page 231 of 329 Discuss Ordinance Amending Various Sections Of The Kodiak Island Borough... AGENDA ITEM #2.c. What ADUs Are And What They Can Do ADUs are a family -friendly, community -creating type of housing the nation needs more of Although many people have never heard the term, accessory dwelling units have been around for centuries (see page 6) and are identified by many different names. To be clear about what's being discussed: • An ADU is a small residence that shares a single-family lot with a larger, primary dwelling • As an independent living space, an ADU is self-contained, with its own kitchen or kitchenette, bathroom and sleeping area • An ADU can be located within, attached to or detached from the main residence • An ADU can be converted from an existing structure (such as a garage) or built anew • ADUs are found in cities, in suburbs and in rural areas, yet are often invisible from view because they're positioned behind or are tucked within a larger home • Because ADUs are built on single-family lots as a secondary dwelling, they typically cannot be partitioned off to be sold separately • An ADU can enable family members (including family caregivers) to reside on the same property while having their own living spaces • An ADU can provide housing for a hired caregiver • An ADU can provide rental income to homeowners • ADUs are a practical option for tenants seeking small, affordably priced rental housing • For homeowners looking to downsize, an ADU can be a more appealing option than moving into an apartment or, if they're older, an age -restricted community • ADUs can help older residents remain independent and "age in place" • As an adaptable form of housing, ADUs provide flexible solutions for changing needs. ■ 1. Accessory dwelling units show up in neighborhoods throughout the country — and even in pop culture. One example: In the sitcom Happy Days, Fonzie (right) rents an above -garage ADU from the Cunningham family in 1950s -era Milwaukee, Wisconsin. ADUs Are Also Known As ... • accessory apartment Although most local governments, zoning codes and planners in the United • backyard bungalow States use the term accessory dwelling unit or ADU, these small homes and • basement apartment apartments are known by dozens of other names. The different terms conjure • casita up different images. (Who • carriage house wouldn't rather live in a • coach house "carriage house" than in an • English basement accessory or "ancillary" unit?) . garage apartment o Even if you've never heard • granny flat ~7 of accessory dwelling units • guest cottage �j or ADUs, you have likelyo 1-r heard of and perhaps a , • guest house j know the locations of — • in-law suite some of the home types • Janeway house noted in the list at right. ■ • multi -generational house m Renting out this 350 -square -foot garage -conversion ADU in Portland, Oregon, helps the • un ob unit property owner, who lives in the lot's primary residence, pay her home mortgage. • secondary dwelling unit 2 AARP I The ABCs of ADUs Page 232 of 329 Discuss Ordinance Amending Various Sections Of The Kodiak Island Borough... ADUs Come in Many Shapes and Styles Since ADUs are custom designed and created, they're able to fit discreetly into all sorts of locations, including suburban subdivisions, walkable towns, urban neighborhoods — and, of course, large lots and rural regions. AGENDA ITEM #2.c. A DETACHED ADU (aka DADU) is a stand-alone home on the same lot as a larger, primary dwelling. Examples include backyard bungalows and converted outbuildings. Location: Portland, Oregon Photo by David Todd A An ATTACHED ADU connects to an existing house, typically through the construction of an addition along the home's side or rear. Such units can have a separate or shared entrance. In this example, the owners built a connection between the house and what was a detached garage. The addition and the space above the garage contain the ADU, which has its own entrance (pictured at right). Location: Anne Arundel County, Maryland Photo by Melissa Stanton, AARP ► Access to an UPPER-LEVEL ADU can be provided through a stairway inside the main home or directly from an exterior staircase. This 500 -square -foot ADU is part of a 1,900 -square -foot primary dwelling. Location: Portland, Oregon Photo by Eli Spevak, Orange Splot LLC A A GARAGE ADU converts all or part of an attached or detached garage into a residence. Other options: adding an ADU above a garage or building a new unit for both people and cars. Location: Cape May, New Jersey Photo by Melissa Stanton, AARP A A LOWER -LEVEL ADU is typically created through the conversion of a home's existing basement (provided that height and safety conditions can be met) during construction of the house or (above and on page 7) as part of a foundation replacement and house lift. Location: Portland, Oregon I Photo by Chris Nascimento The ABCs of ADUs I AARP 3 Page 233 of 329 Discuss Ordinance Amending Various Sections Of The Kodiak Island Borough... AGENDA ITEM #2.c. ADUs Ara Good fca* People and Places Communities that understand the benefits of ADUs allow homeowners to create them ADUs are an economical housing option ADUs can generate rental income to help homeowners cover mortgage payments or simply make ends meet. The income provided by an ADU tenant can be especially important for older people on fixed incomes. • Since the land on which an ADU is built already belongs to the homeowner, the expense to build a secondary residence is for the new structure only. • Many ADUs are created for family members or friends to reside in for free or at a discounted rate. In fact, when a loved one is in need of care or can't live alone, an ADU can be a viable alternative to a costly assisted -living facility. • Although market rate rents for ADUs tend to be slightly more than for similarly sized apartments, they often represent the only affordable rental choices in single-family neighborhoods, which typically contain few or no small or rental housing options at all. . The state of California and some municipalities are boosting ADUs by providing grants and other incentives as part of affordable housing and anti -displacement strategies to help lower-income households build ADUs or reside in them at reliable rents. 4 AARP I The ABCs of ADUs ADUs are community - compatible • ADUs offer a way to include smaller, relatively affordable homes in established neighborhoods with minimal visual impact and without adding to an area's sprawl. • ADUs provide a more dispersed and incremental way of adding homes to a community than other options, such as multistory apartment buildings. • ADUs are typically managed by homeowners who live on the premises. Such landlords are less likely to tolerate a destructive tenant. ADUs are good for the environment • ADUs require fewer resources to build and maintain than full-sized homes. • ADUs use significantly less energy for heating and cooling. (Of all the ADU types, internal ones tend to have the lowest building and operating costs.) ADUs are just the right size • Generally measuring between 600 and 1,000 square feet, ADUs work well for the one - and two-bedroom homes needed by today's smaller, childless households, which now account for nearly two- thirds of all households in the United States. ADUs are able to house people of all ages • ADUs offer young people entry-level housing choices. • ADUs enable families to expand beyond their primary home. • ADUs provide empty nesters and others with the option of moving into a smaller space while renting out their larger house or letting an adult child and his or her family reside in it. • An ADUs use can be adapted for different household types, income levels, employment situations and stages of life. ■ Big houses are being built, small houses are needed Do we really need more than three times as much living space per person as we did in 1950? Can we afford to buy or rent, heat, cool and care for such large homes? FACT. ADUs house more people per square foot of living area than single-family homes do. Page 234 of 329 Discuss Ordinance Amending Various Sections Of The Kodiak Island Borough... HOME VISIT #1 Attached ADU Addition Santa Cruz, California Size: 500 square feet AGENDA ITEM #2.c. The area with the darker roof shingles is the ADU that was added onto the home of Carrie and Sterling Whitley. V The Whitleys' ADU (that's Carrie showing off the front yard's new paths and plantings) has its own entrance on the side of the home and is being rented to the couple's daughter so she can help her elderly parents when needed. When Carrie and Sterling Whitley bought their house in 1971, they paid less than $15,000. Nearly 50 years later, similar homes on their street have sold for more than $1 million. THE PROBLEM: The Whitleys, who are in their 80s, own the house outright and don't want to move. But the financial and physical demands involved in maintaining the house are a challenge. A SOLUTION: To help low-income homeowners age 62 or older live independently and keep their homes, the Monterey Bay affiliate of Habitat for Humanity and the City of Santa Cruz launched My House My Home: A Partnership for Aging -in -Place. The pilot program builds accessory dwelling units so older homeowners can downsize into a new, aging -friendlier home and earn rental income from their original house. Or such homeowners can remain in their house and rent out the new, smaller residence. Participating homeowners are required to charge an affordable rental rate. REALITY CHECK: When the Whitleys' project broke ground in April 2017, they were the first homeowners to receive an ADU through the program, which worked with them to design the ADU as an addition to their existing home. Since the dwelling was built with accessibility features, Carrie and Sterling know they can downsize into it if they ever need to. Until then, their daughter, Brenda, resides in the addition. REAL LIFE: "I'm right next door to my parents in case they need me or need any help," Brenda says. Design: Historic Sheds I Builder. Historic Sheds I Cost to build. $758,000 in 2077 (not including volunteer labor) I Photos by Michael Daniel I Article adapted from Where We Live: Communities for All Ages (AARP 2018) The ABCs of ADUs I AARP 5 Page 235 of 329 Discuss Ordinance Amending Various Sections Of The Kodiak Island Borough... AGENDA ITEM #2.c. ADUs Are an American Tradition While today's interest in ADUs may be new, the housing type is centuries old Early settlers often built a small home to live in while constructing their larger, primary house nearby. When farming was a source of survival for most of the nation's households, families routinely constructed additional homes on their land when needed. People with wealth and acreage regularly populated their lands with secondary mansions and ancillary buildings independent of the main estate house. In fact, until the 20th century, people who owned land built as many homes as they wished, often for extended family or workers. There were few or no zoning rules, municipal services or infrastructure needs (utilities, roads, schools, trash collection, first -responders) to consider. A historic precedent for the modern day accessory dwelling unit is the "carriage house," or "coach house." Originally built for horse-drawn carriages, the structures associated with grander homes were frequently large enough to double as living quarters for workers such as stable hands. Decades later, in response to housing shortages and economic needs, many surviving carriage houses were V This carriage house containing a one -bedroom, one -bath ADU above a two -car garage sits behind a six -level, Gilded Age, Hoboken, New Jersey, townhome that was built in 1883. The dual residence property was on the market in 2018 for $5 million. converted into rental homes. By becoming landlords, the owners gained income from their often unused outbuildings. Automobile garages have a similar history. Some were originally built with a housing unit upstairs. Over time, many garages were converted (often illegally or under zoning codes no longer applicable today) into small homes when the spaces became more valuable for housing people than vehicles. With the rise of suburban single-family home developments following World War II, ADUs practically ceased to be built legally in the United States. Then as now, residential zoning codes typically allowed only one home per lot, regardless of the acreage and with no exceptions. Attached and detached garages occupied yard space that might otherwise have been available for ADUs. Some cities, including Chicago, grandfathered in pre-existing "coach house" ADUs — but only if they remained consistently occupied. In Houston's historic and trendy Heights neighborhood, old and new garage apartments are common and desired. Many communities don't allow new ADUs, even if they did in the past. Even in rural areas with ample land, property owners are often prohibited from creating secondary dwellings or continuing to live in preexisting ones. Countless units in single-family homes or yards are technically illegal simply because they date from when such units were not allowed. ADUs began making a comeback in the 1980s as cities explored ways to support smaller and more affordable housing options within single -dwelling neighborhoods. In 2000, in response to a growing demand for ADU- supportive guidelines, AARP and the American Planning Association partnered to release a model state act and local code for ADUs. An updated resource was published by AARP in 2021. (See an image of it on the inside front cover of this guide.) Many state and local governments are legalizing and encouraging the creation of ADUs (see page 8), driven by high housing costs and, in some cases, the belief that homeowners with suitable space shouldn't be so restricted in the use of their property. ■ Page 236 of 329 Discuss Ordinance Amending Various Sections Of The Kodiak Island Borough... AGENDA ITEM #2.c. HOME VISIT #2 "1 see our ADU as something very similar to a student loan," says Garage Apartment ADU Mara Owen. "It's something you invest in the future with. It was cheaper than buying a house for Mom, and it lets her have Denver, Colorado Size: 360 square feet independence. It's great knowing we can check in on her whenever." A The apartment above the garage can be reached from inside the garage or from an exterior side entrance accessed from the yard it shares with the primary residence. HOME VISIT #3 Basement ADU Portland, Oregon Size: 796 square feet The transformation of this colorful Victorian was both a preservation and expansion project. TEACHING MOMENT: "Here's a very welcome breath of fresh air, especially in the face of so much gentrification that is going on in Portland!" declared Mark A By lifting the house and digging beneath it, designers, engineers and Lakeman, principal of Communitecture, an builders turned a two-story, single-family home into a three-story, ng an hittural, plannid design firm, multifamily residence. (The ADU's entrance is pictured on page 3.) arcec about the pictured remodel. Writing on his company's website, he says the project provides a lesson in how to "adapt and reuse our precious historic houses so they can accommodate more people while also providing more income to support the existing home" AH -HA MOMENT: Owen, her partner, Andrew, and their three dogs were sharing a one -bedroom, one -bath house with her mother, Diane. When Owen learned that ADUs were allowed in the city, she decided the best way to get more space for her small home's many residents would be to remove their "leaky and defunct" garage and build a new two -car garage with an apartment above it. WISE ADVICE: "Get a really great builder and architect," says Owen. "Interviewing architects was similar to a first date. It's not just who you feel connected with. That's important, but get to the values. It's a niche market, so see if you can find someone who has built ADUs before, because ADUs are a little different" FUTURE PLANS: The stairs to Diane's apartment are wide enough for a stair lift, if it's ever needed. The roof was built at the correct slope for the eventual installation of solar panels. Design: Hive Architecture I Builder: Hive Architecture I Cost to build: $167,000 in 20161 Photo by Mara Owen I Article adapted from `ADU Case Studies" by Lina Menard on AccessoryDwel li ngs.org. Visit the website to read about and see photographs of more ADU projects. HOW'D THEY DO IT? To add a basement rental unit, engineers lifted the house. The resulting ADU is roughly four feet underground and four feet above. THE ACHIEVEMENT. Adds Lakeman: "Unlike the seemingly pervasive method of simply tearing down existing buildings so that new, giant ones can be built, this approach achieves upgrades in energy efficient living places and adds density while retaining the continuity of our beloved historical urban environment." Design: Communitecture I Home Lift: Emmert International Builder: Tom Champion I Cost to build. $125,000 in 20151 Photos by Communitecture (before) and Chris Nascimento (after) The ABCs of ADUs I AARP 7 Page 237 of 329 Discuss Ordinance Amending Various Sections Of The Kodiak Island Borough... AGENDA ITEM #2.c. The Time Is Now Rules for ADUs continue to evolve and frequently differ from one town to the next Some communities allow almost any home to be set up with an ADU — so long as size limits, property line setbacks and placement caveats in relation to the primary dwelling are met. Others start with those basic standards and then layer on extra requirements that can make it challenging to create an ADU. (Learn more on pages 14 and 15.) Municipalities nationwide have been relaxing their restrictions against ADUs, and several states now require communities to allow them. Some examples: • New Hampshire and Vermont allow ADUs nearly everywhere single-family housing is permitted. New Hampshire's 2017 legislation stemmed in large part from the frustration of builders who couldn't construct the backyard cottages and garage apartments their clients desired. In 2020, the California legislature declared that "allowing accessory dwelling units in zones that allow single-family and multifamily uses provides additional rental housing, and is an essential component in addressing California's housing needs." The state allows up to one ADU and one JADU per lot. (What's a JADU? See page 14.) • Oregon requires cities and counties of certain sizes to allow ADUs in all single-family areas within urban growth boundaries. In 2021, the state extended ADU rights to rural residential areas. Other states allowing ADUs include Connecticut, Rhode Island and Utah. Many cities now allow ADUs, including Anchorage, Alaska; Atlanta, Georgia; Annapolis, Maryland; Asheville, North Carolina; Austin, Texas; Denver, Colorado; Honolulu, Hawaii; Houston, Texas; Louisville, Kentucky; Philadelphia, Pennsylvania; Phoenix and Tucson, Arizona; Seattle, Washington; and Washington, D.C.■ 01 Located on the lowest floor of a town house, an English basement is a partially belowground apartment that has its own exterior entrance. They are typically found in older cities such as New York or (pictured) Washington, D.C. In the past, property owners used the space as servant quarters. Today, these essentially built-in ADUs are often used as rental apartments. 8 AARP I The ABCs of ADUs To Encourage ADUs LOCAL OFFICIALS can ... • allow all ADU types (detached, attached, interior) • simplify the building permit process for ADUs • waive or reduce permit and impact fees • establish funding programs to help homeowners create ADUs • let garages be converted into ADUs without requiring replacement off-street parking • allow for the creation of a second ADU, subject to a combined size cap COMMUNITY PLANNERS can ... • adopt simple, flexible but nondiscretionary ADU rules about setbacks, square footage and design compatibility with the primary dwelling LENDERS can ... • work with homeowners to finance the construction of ADUs by using renovation loans ADVOCATES can ... • organize tours of completed ADUs in order to inform and inspire the community • educate homeowners, real estate agents, architects and builders about local zoning regulations and the permit process REAL ESTATE AGENTS can ... • educate themselves and their clients about rules for the construction of ADUs LOCAL MEDIA can ... • report on how and why homeowners build ADUs Page 238 of 329 Discuss Ordinance Amending Various Sections Of The Kodiak Island Borough... x O 0 0 D 0 n D AH -HA MOMENT. According to Joan Grimm, who owns the home with Rita Haberman: "What we were looking for in terms of a community and aging in place was right under our noses. Remove a fence and create a shared open space. Build a wall and create a second dwelling unit. It doesn't have to be complicated" REAL LIFE: "Creatively carving out an ADU from the main floor of our house saved on design and construction costs," Grimm adds. "It provides an opportunity for rental income, with no significant compromise to the livability of our home." HOME VISIT #5 Internal ADU (Lower Level) Portland, Oregon Size: 795 square feet AGENDA ITEM #2.c. A The steps and side entrance lead to the studio apartment ADU, which was crafted out of an existing space. The covered porch to the right leads to the primary residence. The ADU contains a kitchen, small dining and living area, sleeping area, bathroom and laundry area. (See two interior photos on pages 19 and 20.) Design: Rita Haberman I Builder: RS Wallace Construction Cost to build: $55,000 in 2015 (with some work done by the homeowners) Photos courtesy Billy Ulmer I Article adapted from `ADU Case Studies" by Lina Menard on AccessoryDwellings.org "We were looking for a way to live in our house for the rest of our lives and to generate at least some income in the process," Robert Mercer and Jim Heuer wrote for the program guide of the annual Portland ADU Tour when their home was part of the lineup. "An ADU offers the possibility of caregiver lodging in the future or even a place for us to live while we rent out the main house if we get to the point where we can't handle the stairs any longer." THE SOUND OF SILENCE: Internal ADUs often require that soundproofing insulation be installed between the primary dwelling and the accessory unit that's below, above or beside it. In Portland, the building code for duplex residences requires a sound insulation rating of at least STCC45. To property owners thinking about a similar ADU setup, the duo advise: "Think about how you live in your home and how having downstairs neighbors will change what The door to the right of the garage leads to a ground -floor ADU with windows along the back and side walls. The upper-level windows are part of the main residence. you can and can't do with your space and what investment you are prepared to make in sound insulation." AN ADDED BONUS: "We are pleased that we have been able to provide more housing density on our property and still be in keeping with the historic character of our home" Design: DMSArchitects I Builder: Weitzer Company I Cost to build.• $261,000 in 2016 1 Photo by Melissa Stanton, AARP Article adapted from the 2017 ADU Tour project profiles on AccessoryDwellings.org The ABCs of ADUs I AARP 9 Page 239 of 329 Discuss Ordinance Amending Various Sections Of The Kodiak Island Borough... �{=•`3 HOME VISIT #4 Internal ADU Level) .j (Main l Portland, Oregon Size: 220 square feet'i S Even small homes can have enough space for an - r ADU. An underused main floor bedroom in this 1.5 -story, 1,500 -square -foot bungalow was �1 transformed into a studio apartment. AH -HA MOMENT. According to Joan Grimm, who owns the home with Rita Haberman: "What we were looking for in terms of a community and aging in place was right under our noses. Remove a fence and create a shared open space. Build a wall and create a second dwelling unit. It doesn't have to be complicated" REAL LIFE: "Creatively carving out an ADU from the main floor of our house saved on design and construction costs," Grimm adds. "It provides an opportunity for rental income, with no significant compromise to the livability of our home." HOME VISIT #5 Internal ADU (Lower Level) Portland, Oregon Size: 795 square feet AGENDA ITEM #2.c. A The steps and side entrance lead to the studio apartment ADU, which was crafted out of an existing space. The covered porch to the right leads to the primary residence. The ADU contains a kitchen, small dining and living area, sleeping area, bathroom and laundry area. (See two interior photos on pages 19 and 20.) Design: Rita Haberman I Builder: RS Wallace Construction Cost to build: $55,000 in 2015 (with some work done by the homeowners) Photos courtesy Billy Ulmer I Article adapted from `ADU Case Studies" by Lina Menard on AccessoryDwellings.org "We were looking for a way to live in our house for the rest of our lives and to generate at least some income in the process," Robert Mercer and Jim Heuer wrote for the program guide of the annual Portland ADU Tour when their home was part of the lineup. "An ADU offers the possibility of caregiver lodging in the future or even a place for us to live while we rent out the main house if we get to the point where we can't handle the stairs any longer." THE SOUND OF SILENCE: Internal ADUs often require that soundproofing insulation be installed between the primary dwelling and the accessory unit that's below, above or beside it. In Portland, the building code for duplex residences requires a sound insulation rating of at least STCC45. To property owners thinking about a similar ADU setup, the duo advise: "Think about how you live in your home and how having downstairs neighbors will change what The door to the right of the garage leads to a ground -floor ADU with windows along the back and side walls. The upper-level windows are part of the main residence. you can and can't do with your space and what investment you are prepared to make in sound insulation." AN ADDED BONUS: "We are pleased that we have been able to provide more housing density on our property and still be in keeping with the historic character of our home" Design: DMSArchitects I Builder: Weitzer Company I Cost to build.• $261,000 in 2016 1 Photo by Melissa Stanton, AARP Article adapted from the 2017 ADU Tour project profiles on AccessoryDwellings.org The ABCs of ADUs I AARP 9 Page 239 of 329 Discuss Ordinance Amending Various Sections Of The Kodiak Island Borough... AGENDA ITEM #2.c. Bringing Back ADUs The reasons for creating or living in an ADU are as varied as the potential uses ADUs are flexible. Over time, a single ADU might be used in many ways as an owner's needs and life circumstances change. Following are just a few reasons why ADUs are created and by whom: EMPTY NESTERS can build an ADU and move into it, then rent out the main house for supplemental income or make it available to their adult children. FAMILIES WITH YOUNG CHILDREN can use an ADU as housing for a nanny or au pair or even a grandparent or two, who can then help raise their grandkids and be assisted themselves as they age. INDIVIDUALS IN NEED OF CARE can reside in an ADU to be near family members, or they can use the ADU to house a live-in aide. (In fact, ADUs can be an affordable and more comforting alternative to an assisted -living facility or nursing home.) HOME BUYERS can look forward to the rental income from an ADU to help pay their mortgage or finance home improvements, especially in expensive housing markets. HOME-BASED WORKERS can use an ADU as their office or workshop. HOMEOWNERS can use an ADU for guests or as housing for friends or loved ones who: • aren't yet financially independent, such as new high school or college graduates • need temporary housing due to an emergency or while renovating their own home • have disabilities but can live independently if family reside nearby ■ A The zoning code in Evanston, Illinois, permits accessory dwelling units, creating an opportunity for the owners of this 1911 home with an outbuilding in the backyard. 10 AARP I The ABCs of ADUs Page 240 of 329 Discuss Ordinance Amending Various Sections Of The Kodiak Island Borough... HOME VISIT #6 Detached ADU (One -Story) Decatur, Georgia Size: 800 square feet When Walt Drake decided to downsize, his son Scott purchased his dad's house for himself and his family and built a detached ADU (or DADU) for Walt. "From not finding what we wanted for Dad, we decided to create it," says Scott. "Neighborhoods built in the 1920s have carriage houses. Building an ADU was a modern day version of something people have been doing on their property in this area for a hundred years." NEAR AND FAR: "We wanted the houses to be separate and to feel like we're each on our own property, but we're there for each other," says Scott. AGING -FRIENDLY: Building the ADU meant Walt didn't have to leave his home and neighborhood. "He was able to keep his own stuff and turn over what he didn't need to us," says Scott. "It kept my dad in place, which I think was important." FUTURE PLANS: Scott says the ADU is "serving its intended purpose" but that someday down the road it could be used as a long- or short-term rental. "The ADU could turn into lots of different things over the course of its lifetime." Design: Adam Wall, Kronberg Wall I Builder: Rob Morrell I Cost to build: $350,000 in 2014 1 Photo by Fredrik Brauer I Floor plan by Kronberg Wall Architects I Article adapted from `ADU Case Studies" by Lina Menard on AccessoryDwel I i ngs.org AGENDA ITEM #2.c. �i A Walt Drake's southern -style, one -bedroom ADU has an outdoor, wraparound porch that can be accessed without using steps. The design is in keeping with other buildings in the neighborhood. The ABCs of ADUs I AARP 11 Page 241 of 329 Discuss Ordinance Amending Various Sections Of The Kodiak Island Borough... AGENDA ITEM #2.c. ADUs Are Age -Friendly Housing New -construction ADUs can be created with "universal design" features An "age -friendly" home has a zero -step entrance and includes doorways, hallways and bathrooms that are accessible for people with mobility differences. Converted garages (such as the one pictured on page 2) are among the easiest and least expensive ADU solutions for aging in place since they're preexisting structures and generally have no -step entries. To learn more about making a home aging -friendly, download or order the AARP HomeFit Guide at AARP.org/HomeFit. HOME VISIT #7 Detached ADU (Two -Story) Seattle, Washington Size: 800 square feet Evelyn Brom's plan was to build a backyard cottage and rent it out. She would keep living in her two- bedroom home. AH -HA MOMENT: As the design developed, Brom realized that she wanted to live in the stunning wood -and -glass ADU. It was a good decision. A week before moving in, Brom was laid off from her job. REAL LIFE: The $3,000 a month Brom receives in rent for the main house (which is occupied by a three -generation family) provides a needed income. "Being laid off has made this arrangement a lifesaver," Brom says. If the stairs in the cottage ever become too hard to navigate, she can move back into her original one-story house and rent out the cottage instead. "Now I have options," she says. Design: Chrystine Kim, NEST Architecture & Design I Builder: Ian Jones, Treebird Construction I Photo by Alex Hayden Cost to build: $250,000 in 2014 1 Article adapted from Where We Live: Communities for All Ages (AARP 2018) 12 AARP I The ABCs of ADUs Page 242 of 329 Discuss Ordinance Amending Various Sections Of The Kodiak Island Borough... A There's a powder room, open kitchen and living room on the first � floor, with a bedroom i and bathroom upstairs. 22STOr RggOOSFDADII �nF E%ISiING ' S Although Brom's SINGLE FAMILY I property is only 0.13 RESIDENU acres, it's large enough to accommodate two homes, a patio, a lawn €RiSTIHG j ,�6i„ and a garage. A slatted I wood fence with a gate divides the space between the two houses and provides privacy. Design: Chrystine Kim, NEST Architecture & Design I Builder: Ian Jones, Treebird Construction I Photo by Alex Hayden Cost to build: $250,000 in 2014 1 Article adapted from Where We Live: Communities for All Ages (AARP 2018) 12 AARP I The ABCs of ADUs Page 242 of 329 Discuss Ordinance Amending Various Sections Of The Kodiak Island Borough... HOME VISIT #8 Detached Bedroom St. Petersburg, Florida Size: 240 square feet Bertha and her son John talked about someday buying a house with a mother-in-law suite. "Then one day someone came along and wanted my house, so I up and sold it," she explains. "But that left me homeless. I asked John if I could build a small house in his backyard and he agreed." CREATIVE THINKING: A detached bedroom is a permanent, accessory structure that, unlike ADUs, lacks a kitchen. But that's what makes these cabin -like homes more affordable to build than many ADUs and even tiny houses. WHAT'S INSIDE: Bertha's home contains a sleeping and living area and a full bathroom. "I paid for the little house and it's on my son's property. So I figured, if I'm cooking I can do it at my son's house," she says. (Her laundry is also done at his house.) �LJLJ �'Qoru AGENDA ITEM #2.c. r A A detached bedroom, which contains a bathroom but no kitchen, can provide housing for a loved one or serve as a home office or guest cottage. REAL LIFE: "Having access to my son's house makes it livable. Otherwise, I personally would not be happy. It's very comforting to know that John is close by. Hopefully this will be my home forever." Design: Historic Sheds I Builder: Historic Sheds I Cost to Build: $50,000 in 2077 1 Photo by Historic Sheds I Article adapted from 'ADU Case Studies" by Lina Menard on AccessoryDwellings.org Page 243 of 329 Discuss Ordinance Amending Various Sections Of The Kodiak Island Borough... AGENDA ITEM #2.c. Practical Solutions for ADUs Local laws can both allow and appropriately control the creation of accessory dwellings There are more than 19,000 cities, 16,000 towns and 3,000 counties in the United States. ADU regulations are typically adopted at the local level, although several state legislatures have required cities to allow them. Where it's legal to build ADUs, homeowners still need to follow rules about where it can be done, how many square feet they can contain, how they can be used. These rules can be found in the local zoning code. There is a balance to strike between prudent ADU laws and encouraging their construction. For instance, after Portland, Oregon, relaxed its ADU rules in 2010 and waived impact fees (a savings of up to $12,000), the number of ADUs built rose from about 30 per year between 2000 and 2009 to nearly one a day in 2015. Changes in California's ADU rules saw Los Angeles go from 80 applications in 2016 to nearly 2,000 in 2017. Allowing Sonoma County homeowners to add both an ADU and a JADU (see the green box below) were among the policies adopted in the wake of the area's many devastating fires. Rules that discourage ADUs • ADU-specific regulations that don't also apply to primary dwellings (e.g., owner -occupancy requirements) • complex design compatibility criteria and approval steps • off-street parking requirements beyond those required for the primary dwelling • restrictions that limit ADUs to certain areas, particular zoning categories or to large lots • caps on square footage relative to the primary house that make it easy to add an ADU to a large home but hard or impossible to add one to a small home Well-intentioned but burdensome rules can stymie the creation of ADUs. ADU-related zoning codes should be restrictive enough to prevent undesirable development but flexible enough that ADUs get built. When a community is worried about a potentially undesirable outcome, it can — and many do — craft regulations to prevent particular building types, locations or uses. A city concerned about the environmental impact of new structures might prohibit placing detached ADUs in precarious locations, such as on steeply sloping lots. Communities wary of ADUs becoming, for instance, off -campus student housing can establish occupancy rules. Every community has its own priorities and concerns, and there's a wide enough range of regulatory controls that communities can write appropriate ADU rules. This inherent flexibility in the form and function of ADUs allows them to pass political muster and get adopted in a wide range of places. (See page 16 for more about uses and rules.) ■ Are ADUs allowed? Find out by calling your town, city or county office in charge of land use and permits — or stop by in person. You can also search for and read the zoning code through the local government's website. • If ADUs are allowed, ask what conditions, permit needs and impact fees apply. • If ADUs are not allowed and you want them to be, ask an elected official or your community's department of zoning and planning how the codes can be updated. • Then get organized and start advocating! 14 AARP I The ABCs of ADUs Page 244 of 329 Discuss Ordinance Amending Various Sections Of The Kodiak Island Borough... AGENDA ITEM #2.c. Creating (or Understanding) an ADU Zoning Code The ADU section of a community's zoning code needn't be overly complicated. It just needs to establish clear, objective and fair rules for the following: 1. A Definition: A good zoning code clearly defines its terminology. Here, for example, is a useful outline for what, in the real world, is a very fluid term: "An ADU is a smaller, secondary home on the same lot as a primary dwelling. ADUs are independently habitable and provide the basic requirements of shelter, heat, cooking and sanitation" 2. The Purpose: This is where the code describes key reasons a community allows ADUs. They should: • increase the number of housing units while respecting the style and scale of the residential neighborhood • bolster the efficient use of existing housing stock and infrastructure • provide housing that's affordable and responds to the needs of smaller, changing households • serve as accessible housing for older adults and people with disabilities 3. Eligibility: Who can build an ADU and on what type of lot? A statement in this part of the code clarifies that an ADU can be placed only on a "residentially zoned lot" (Some communities provide lot size standards.) 4. Creation: The code sets out how an ADU can be built. For instance: "An ADU may be created through new construction, the conversion of an existing structure, as an addition to an existing structure or as a conversion of a qualifying existing house during the construction of a new primary dwelling on the site" S. Quantity: Most municipalities that permit ADUs allow one per lot. Those allowing two typically permit one internal and one external. Some allow duplexes or townhomes to have an ADU, either in the backyard or on the ground floor. 6. Occupancy and Use: A code should state that the use -and -safety standards for ADUs match those used for the main dwelling on the property. (See page 17 for more.) Visit AARP.org/ADU to download Accessory Dwelling Units: Model State Act and Local Ordinance, a free publication that can be used by state and local officials to develop ADU policies. 7. Design Standards: • Size and height: A zoning code might specify exactly how large and tall an ADU is allowed to be. For instance: "An ADU may not exceed 1,000 square feet or the size of the primary dwelling, whichever is smaller." Codes often limit detached ADUs to 1.5 or 2 stories in height. An example of that language: "The maximum height allowed for a detached ADU is the lesser of 25 feet at the peak of the roof or the height of the primary dwelling." • Parking: Most zoning codes address the amount and placement of parking. Some don't require additional parking for ADUs, some do, and others find a middle ground — e.g., allowing tandem parking in the driveway and/or on -street parking. (See page 16 for more about parking.) • Appearance: Standards can specify how an ADU's roof shape, siding type and other features need to match the primary dwelling or neighborhood norms. Some codes exempt one-story and internal ADUs from such requirements. (See page 16 for more.) 8. Additional Design Standards for Detached ADUs: • Building setbacks: Many communities require detached ADUs to either be located behind the primary dwelling or far enough from the street to be discreet. (A code might exempt preexisting detached units that don't meet that standard.) Although such a rule can work well for neighborhoods of large properties with large rear yards, communities with smaller lot sizes may need to employ a more flexible setback -and -placement standard. • Building coverage: A code will likely cap the combined lot coverage of a detached ADU and the primary dwelling to a specific percentage. • Yard setbacks: Most communities have rules about minimum distances to property lines and between buildings on the same lot. ADUs are typically required to follow the same rules. ■ The ABCs of ADUs I AARP 15 Page 245 of 329 Discuss Ordinance Amending Various Sections Of The Kodiak Island Borough... AGENDA ITEM #2.c. ADU "Hot Topics" As communities allow ADUs or update existing zoning codes and rules to be more ADU-friendly, they inevitably wrestle with some or all of the following issues: Adding ADUs to neighborhoods Recognizing that ADUs may represent a new housing type for existing neighborhoods, communities often write special rules to ensure they'll fit in well. These guidelines typically address visual compatibility with the primary dwelling, appearance from the street (if the ADU can be seen) and privacy for neighbors. Rules that help achieve these goals include: • height and size caps mandating that ADUs be shorter and smaller than the primary dwelling • requirements that detached ADUs be behind the main house or a minimum distance from the street • mandates that the design and location of detached ADUs be managed the same way as other detached structures (e.g., garages) on the lot • design standards for larger or two-story ADUs so they architecturally match the primary dwelling or reflect and complement neighborhood aesthetics • encouragement for the creation of internal ADUs, which are often unnoticeable from the street Each community can strike its own unique balance between strict rules to ensure that ADUs have a minimal impact on neighborhoods and more flexible rules that make them easier to build. Providence, Rhode Island, has many homes that were built as or long -ago converted into multidwelling units. (Notice the two front doors.) A homeowner can live in one apartment while renting out the other. 16 AARP I The ABCs of ADUs Providing places to park ADU regulations often include off -street -parking minimums on top of what's already required for the primary dwelling. Such rules can prevent homeowners from building ADUs if there's insufficient space for added parking. However, the extra parking often isn't needed. Studies of Portland, Oregon, and the San Francisco Bay area found that ADU households own an average of 0.9 cars. That's half the national average of 1.8 cars per household. With just over 2 percent of Portland homes having an ADU (the highest percentage of any large city in the country), there's roughly one extra car parked on the street every six blocks. This suggests that, even in booming ADU cities, any impact on street parking from ADUs is likely to be very small and dispersed. More -realistic parking rules might: • require the creation of new parking only if the ADU displaces the primary dwelling's existing parking • waive off -street -parking requirements at locations within walking distance of transit • allow parking requirements for the house and ADU to be met by using a combination of off-street parking, curb parking and tandem (one car in front of the other) parking in a driveway Dealing with unpermitted ADUs It's not uncommon for homeowners to convert a portion of their residence into an ADU in violation (knowingly or not) of zoning laws or without permits. Such illegal ADUs are common in cities with tight housing markets and a history of ADU bans. One example is New York City, which gained 114,000 apartments between 1990 and 2000 that aren't reflected in certificates of occupancy or by safety inspections. Sadly, in 2021, several city residents living in unsafe basement apartments drowned in their homes due to flooding caused by Hurricane Ida. Some cities have found that legalizing ADUs, simplifying ADU rules and/or waiving fees can be effective at getting the owners of illegal housing units to "go legit" — and address safety problems in the process. ■ Page 246 of 329 Discuss Ordinance Amending Various Sections Of The Kodiak Island Borough... 0 0 D 0 D AGENDA ITEM #2.c. Allowing and Restricting Uses Communities get to decide whether to let ADUs be used just like any other housing type or to create special rules for them. Some municipalities prefer the simple approach: regulating ADUs like other homes. So if a home-based child-care service is allowed to operate in the primary dwelling, it is also allowed in an ADU. Conversely, communities sometimes adopt ADU-specific regulations in order to avoid undesirable impacts on neighbors. Examples of those regulations include: Limiting short-term rentals ADUs tend to work well as short- term rentals. They're small and the owner usually lives on-site, making it convenient to serve as host. However, if ADUs primarily serve as short-term rentals, such as for Airbnb and similar services, it undermines the objective of adding small homes to the local housing supply and creating housing that's affordable. In popular markets, short-term rentals can be more profitable than long-term ones, allowing homeowners to recoup their ADU expenses more quickly. In addition, short-term rentals can provide owners with enough income that they can afford to occasionally use the ADU for friends and family. A survey of ADU owners in three Pacific Northwest cities with mature ADU and short-term rental markets found that 60 percent of ADUs are used for long-term housing as compared with 12 percent for short-term rentals. Respondents shared that they "greatly value the ability to use an ADU flexibly." For instance, an ADU can be rented nightly to tourists, then someday rented to a long-term tenant, then used to house an aging parent. ADUs intended primarily for visting family are sometimes used as short-term rentals between visits. Cities concerned about short-term rentals can regulate them across all housing types. Doing so might mean that special rules are not needed. An approach employed in Portland, Oregon, is to treat ADUs the same as other residences except that any financial incentives (such as fee waivers) to create them are available only if the property owner agrees not to use the ADU as a short-term rental for at least 10 years. Requiring owner occupancy Some jurisdictions require the property owner to live on-site, either in the primary house or its ADU. This is a common way of addressing concerns that absentee landlords and their tenants will allow homes and ADUs to fall into disrepair and negatively impact the neighborhood. Owner -occupancy rules are usually implemented through a deed restriction and/or by requiring that an annual statement confirming residency be filed. Some cities go further, saying ADUs can be occupied only by family members, child- or adult -care providers, or other employees in service of the family. Owner -occupancy requirements make the financing of ADUs more difficult, just as they would if applied to single-family homes. But as ADUs have become more common, owner -occupancy restrictions have become less so, which is good. Such requirements limit the appraised value of properties with ADUs and reduce options for lenders should they need to foreclose. Enforcing owner -occupancy laws can be tricky, and the rules have been challenged in courts, sometimes successfully. However, according to a study by the Oregon Department of Environmental Quality, more than two-thirds of properties with ADUs are owner - occupied even without an owner - occupancy mandate. ■ The zoning code of Brevard, North Carolina, a city of fewer than 10,000 residents, allows ADUs, which are referred to as "secondary dwelling units" and are allowed "within residentially -zoned, single-family and duplex lots." The code states that such homes "shall be encouraged and designed to meet housing needs," adding that "[s]econdary dwelling units shall be accessory and subordinate to the primary living quarters." In the image at left, the one-story cottage is the primary dwelling. The apartment above the detached garage is the secondary dwelling. The ABCs of ADUs I AARP 17 Page 247 of 329 Discuss Ordinance Amending Various Sections Of The Kodiak Island Borough... AGENDA ITEM #2.c. Inside Spaces ADUs vary from studio apartment -like spaces to multi -bedroom, multi -story structures. Regardless of size, the result is a needed residence A top floor ADU can be a suitable rental for a student or someone who travels a lot for work. ADU expert Kol Peterson grew up in a home with an attic ADU that was usually rented to law school students. "They had to walk up the primary house's interior stairs in order to access the affordable attic unit," he writes in Backdoor Revolution: The Definitive Guide to ADU Development. "Over the years that each of them lived there, the tenants became part of our family." rpt The alcoves in the ADU area above a garage provide a This studio apartment internal ADU uses a wardrobe light -filled work space in one, and a reading nook in the cabinet to separate the bedroom from the living area other. (See the attached ADU's exterior on page 3.) and kitchen (seen on page 19). 18 AARP i The ABCs of ADUs Page 248 of 329 Discuss Ordinance Amending Various Sections Of The Kodiak Island Borough... AGENDA ITEM #2.c. A As an independent living space, an ADU has its own bathroom and kitchen. Depending on the available square footage — and sometimes on the local zoning code or the property's plumbing and utility connections — an ADU might have a full kitchen with full-sized appliances and a dining area (top) or a smaller but functional kitchenette. This interior is from the detached ADU pictured below right and on the back cover. Fun fact: A coat closet and extra kitchen shelving are built into the base of the circular staircase. In a small home, every bit of space counts! v� V L A The kitchen of this internal ADU (also seen at the top of page 9 and in the bedroom image at left) has a full-sized range but a mini -refrigerator. Some ADU owners install a one- or two -burner electric cooktop and a convection microwave in lieu of an oven. A The second story of this detached ADU is accessed by the spiral staircase shown in the image at top. The space features a bedroom and a sitting area that could be used as a nursery, office or den. A full-sized, stacked washer -dryer is hidden behind a closet door. The ABCs of ADUs i AARP 19 Page 249 of 329 Discuss Ordinance Amending Various Sections Of The Kodiak Island Borough... AGENDA ITEM #2.c. Just One More While not technically ADUs, tiny houses can serve a similar purpose Because tiny houses are typically built on a trailer with wheels rather than a fixed foundation, they are usually treated by zoning as recreational vehicles (RVs) or manufactured (aka mobile) homes. In Portland, Oregon, and a growing number of smaller cities, tiny houses can be legally occupied on any residentially -zoned lot. Since they're small — typically under 400 square feet — tiny houses can fit in a space too small for an ADU. Many include a kitchen and bathroom. Some function more like a detached bedroom. A unique plus: Unlike ADUs, tiny houses can move to a new location as needed. Top: Design and Builder: Lina Menard, Niche Consulting I Photos by Guillaume Dutilh, PhotoXplorer Bottom: Design and Builder: Benn Kovco I Photos by Jeff Freeman Photography 20 AARP i The ABCs of ADUs t A "The Lucky Penny" tiny house measures 8 feet wide by 14 feet, 6 inches long and provides 100 square feet of living space. The home, which is located in the backyard of a single-family residence, features a pullout bed, a kitchenette, a shower, built-in storage, and three large windows plus a skylight to provide lots of nature light. ADUs are sometimes used as short-term rental units for travelers. The "Kangablue," is one of several units at Caravan, the "world's first tiny house hotel." At 170 square feet, the home is the largest tiny house on the lot, located in the Cully neighborhood of Portland, Oregon. The tiny space includes a kitchen, living area, bathroom (with a shower and toilet) and a sleep loft. Page 250 of 329 Discuss Ordinance Amending Various Sections Of The Kodiak Island Borough... AGENDA ITEM #2.c. The ABCs of ADUs A guide to Accessory Dwelling Units and how they expand housing options for people of all ages WRITTEN AND EDITED BY: Eli Spevak, Orange Splot LLC I Melissa Stanton, AARP Livable Communities ART DIRECTOR: Mlml Park, Design Park, Inc. COPY EDITOR: Don Armstrong I ART PRODUCTION: Steve Walkowiak PROJECT ADVISERS AND REVIEWERS: Danielle Arigoni, Director, Livable Communities, AARP Government Affairs Karen Chapple, Professor, University of California, Berkeley Lina Menard, Founder, Niche Consulting Heather Peters, Senior Housing and Community Development Policy Analyst, San Mateo County, California Kol Peterson, Cofounder, AccessoryDwellings.org I Owner, Accessory Dwelling Strategies LLC, Portland, Oregon Denise Pinkston, Partner, TMG Partners Harriet Tregoning, (Past) Principal Deputy Assistant Secretary, U.S. Housing and Urban Development Jake Wegmann, Assistant Professor, University of Texas at Austin COVER IMAGE CREDITS (clockwise from top left) Front: Alex Hayden I Communitecture: Architecture, Planning, Design I AccessoryDwellings.org I Melissa Stanton, AARP I AccessoryDwellings.org Back: Kol Peterson, BuildingAnADU.com I Eli Spevak, Orange Splot LLC I Schuyler Smith, Polyphon Architecture & Design, LLC A NOTE TO READERS: Many of the photographs and project examples in this publication are from Portland, Oregon, which was one of the first municipalities in the nation to allow and encourage the creation of accessory dwelling units. To learn more about ADUs — and to order or download this guide — visit AARP.org/Livabie. Other useful resources include: • AccessoryDwellings.org • BuildingAnADU.com • Planning.org (the website of the American Planning Association) • And the websites of the states, cities and towns mentioned in this guide as allowing and encouraging the creation of accessory dwelling units. Page 251 of 329 Discuss Ordinance Amending Various Sections Of The Kodiak Island Borough... AGENDA ITEM #2.c. ABOVE -GARAGE ADU DETACHED -BEDROOM ADU .7:111/_N1:1:1.7_1Dili An accessory dwelling unit is a small residence that shares a single-family lot with a larger primary dwelling. • As an independent living space, an ADU is self-contained, with its own kitchen or kitchenette, bathroom and living/sleeping area. (Garage apartments and backyard cottages are each a type of ADU.) • ADUs can enable homeowners to provide needed housing for their parents, adult children, grandchildren or other loved ones. • An ADU can provide older adults a way to downsize on their own property while a tenant or family member resides in the larger house. • Since homeowners can legally rent out an ADU house or apartment, ADUs are an often -essential income source. • ADUs help to improve housing affordability and diversify a community's housing stock without changing the physical character of a neighborhood. • ADUs are a beneficial — and needed — housing option for people of all ages. or Learn more about ADUs and order or download P L ting Sign weekly 11 AARP Livable Communities Be among to learn when AARP releases more livability guides and resources. AV QW D2o473 Page 252 of 329 Discuss Ordinance Amending Various Sections Of The Kodiak Island Borough... AKDUYS AND DON'TS � A Practical Approach to Bringing Additional Dwelling Units to Alaska Communities AGENDA ITEM #2.c. ® ALASKA .• MUNICIPAL •• LEAGUE This publication was authored by Abigail Barton, a member of the Alaska Fellows Program, and Alicia Hughes-Skandijs. It was made possible through generous support provided by the AARP Community Challenge Grant. The AARP Community Challenge Grant is part of a nationwide livable communities initiative to help communities become great places to live for residents of all ages. Page 254 of 329 Discuss Ordinance Amending Various Sections Of The Kodiak Island Borough... AGENDA ITEM #2.c. AKDU'S AND DON'TS 1.0 Introduction 1.1 OvarvialAr of Hnucinn rri5ic in Mack Alaska communities face an extreme shortage of affordable, decent housing. Almost eighty thousand Alaska households are considered cost burdened, meaning that they pay more than a third of their income toward their housing costs. Of Alaska's renter population 37% are cost burdened, with 18% severely cost burdened, meaning they pay more than half of their income towards housing. The statewide rate of overcrowding is twice the national average, with some regions experiencing rates twelve times greater. Rural communities where the population majority is Alaska Native are hit the hardest. In some areas, as many as half of all households live in homes that are too small for the number of occupants. Excessively high construction costs and limited senior housing result in households taking in family and community members who would otherwise be homeless. In 2018, the Alaska Housing Finance Corporation estimated that new construction would have to increase 11 % each year to meet projected population growth by 2025. At that time, they found that to achieve that goal, the annual construction output would have to increase ninety percent over the previous five-year average. Since that time, the number of new units built in Alaska dropped precipitously during the pandemic and has yet to return to 2019 levels. Page 255 of 329 Discuss Ordinance Amending Various Sections Of The Kodiak Island Borough... 2 1 AKDU'S AND DON'TS 1.2 Overview of Senior Demographics .- Al--I,- The population of Alaska is rapidly aging. Currently, Alaskans aged 60 and older make up about one in five residents statewide. Aging individuals are most concen- trated in Southeast Alaska, where the rate is one in four. The population of people 65 and older is expected to double by 2030. In the previous decade, the population of Alaskans aged 70 and older increased 97 percent. Data collection conducted in Anchorage, Fairbanks, Juneau, Kenai Peninsula, and Copper Center through the Alaska Senior Needs Assessment found that all regions reported a shortage of affordable independent senior housing. A survey of over 2,000 senior citizens across these communities found that accessible and affordable housing was the third most pressing issue in their lives, closely behind financial security and healthcare. Population Age 65+, Alaska, 1980 to 2050 180:000 160:006 140.000 120.000 100:000 ao:o00 60.000 40.000 20:000 I --- Middle Scenario — Historical AGENDA ITEM #2.c. 1980 1990 2004 2014 2024 2034 2046 2056 Source: Alaska Department ofLobor and Workforce Development Research and Analysis Section 1.3 Accessnry Dwellinq Units! A Creative Solution The pressing issue of affordable, accessible housing in Alaska requires immediate attention. Accessory Dwelling Units, or"ADUs;'can provide a cost-effective means for quickly increasing the affordable housing stock. Also known as"granny flats;"'mother-in-law apartments;' and backyard cottages, ADUs are small residences that are attached to an existing single-family home or built as a free-standing unit on the same lot as an existing home. Though usually no larger than one or two bedrooms and typically much smaller than the primary residence, ADUs are entirely independent dwellings, equipped with their own kitchens, bathrooms, and other amenities necessary for full-time occupancy. ADUs allow communities to take advantage of existing infrastructure and add affordable homes in existing neighborhoods. IN IN ■ ■ Irm M . ■ . ■ DETArxHE❑ ATTACHED INTERIOR (UPPER LEVEL IN ■ ■ OEM OEM ON EM INTERIOR (LOWER LEVEL) ABOVEGARAGE GARAGE CONVERSION Source: AARP's 'Accessory Dwelling Unit Model State Act and Local Ordinance." Page 256 of 329 Discuss Ordinance Amending Various Sections Of The Kodiak Island Borough... ADUs certainly do not replace the large-scale invest- ment and development necessary to meaningfully alleviate the affordable housing crisis in Alaska, but in addition to contributing to that effort, ADUs have the ability to provide unique benefits to communities. As Alaska's population rapidly ages, adult children of aging parents and older homeowners face limited affordable, close, and independent living options. Adding an ADU to the property of a family member or to that of an older homeowner can allow aging individ- uals to maintain their independence and remain within their community. An ADU can act as caregiver housing or allow an elderly person to move closer to family. For aging homeowners concerned primarily with financial security, ADUs can be used to generate income to cover property taxes and maintenance during retirement. Though a meaningful intervention for senior Alaskans looking to avoid residential facilities, ADUs built for this reason can also go on to serve multiple purposes. ADUs built specifically for senior occupancy can be accessi- bly constructed to specifically meet new age-related mobility needs. While affordable housing is scarce, affordable housing that is also accessible is almost nonexistent in many communities. ADUs can make a dramatic impact on the accessibility of a region's affordable rental stock, dramatically increasing the inclusivity of a community. Additionally, an investment in an ADU for an aging relative can later be used to house young adult family members. By facilitating multi -generational living, ADUs can help keep families and communities together. Where commercial developers may have a wide range of financial and logistical considerations when deciding whether or not to go forward with a new development, the potential gains to a private home- owner in a community may increase the likelihood of adding a new housing unit. For that reason alone it is worth considering from the municipal perspective whether this could be a tool to add to your bucket in efforts to increase housing. AGENDA ITEM #2.c. AKDU'S AND DON'TS Former Alaska State Representative Alyce Hanley standing before the basement apartment she added to her Home, allowing her to live with her children while retaining her own living space. Source: KTOO—Anchorage DailyNews'Alosko cities, facing housing_ crunch, encourage backyard cottages and apartment additions" (2018). 31 -year-old Sitka resident Adrienne Wilber standing before her partially constructed ADU built on the corner of her parent's lot Source: KCAW'ADUs Could Make Sitka's Housing More Affordable. Advo- cates Want to Make them Easier to Build" (2021) Page 257 of 329 Discuss Ordinance Amending Various Sections Of The Kodiak Island Borough... AGENDA ITEM #2.c. AKDU'S AND DON'TS 2.0 Snapshot of Alaska Communities with Existing ADU Ordinances Structure & Lot Parking Occupancy Permitting Process Aesthetics/ Additional Des Details/ City and Borough of Juneau Structure: Lots up to 125% + 1 If the homeown- Applicants building on lots that None. Accessory Dwelling Unit Grant Program: Created a of the required minimum: required er funds their exceed the minimum lot size re- max area 600 ftz. Lots larger ADU construction quirements for their zoning district dedicated grant program than 125%: can be up to with a grant from and are connected to city sewer providing up to $13,500 50% of the net floor area of Juneau's Accesso- services are subject to ministerial for ADU construction to 16 the primary dwelling but ry Dwelling Unit approval. Those not connected homeowners annually. cannot exceed 1000 ftz. Grant Program, to the sewer will need to include Lot: Lot must meet the they must record verification from the Dept. of minimum lot size require- a deed restriction Environmental. Conservation that ment for the zoning district. agreeing not to their wastewater disposal system use the ADU as a can handle the additional use from short-term rental the ADU. Conditional use permits for the first five are required for all ADUs built on a years. sub -standard sized lot. City and Borough of Sitka Structure: Max. 800 ftz Parking plan Long term rentals Two zones are eligible for"by Requires 22.20.160 Accessory dwell - ing units (ADUs). Lot: Lots must be served by required but (90+ days) only. right" permitting if all regulations that ADUs be a publicly maintained right can rededi- are met, three additional zones designed so that of way. Cannot be con- cate existing are automatically subjected to the structure structed on lots accessed primary conditional evaluation as well as maintains"to through easements. dwelling all applications that do not meet the greatest unit spaces. regulations. Conditional permitting extent possible" process: applications must be filed the appearance at least 3 weeks in advance of the of a single - Planning Commission meeting family property. where they are subject to a public [22.20.160 (c) hearing. Applicants are required (8)] to attend and answer questions. Decisions are typically made at the first meeting. Kodiak Island Borough Structure: 575-725 ftz (de- 5 for <600 No short-term Permitted use for attached ADUs in None. 17.160.070 - Accessory pendent on zoning district) ft'; +6 for uses such as bed five residential districts zoned for dwelling units. Lot: No lot size restrictions >600 ftz and breakfasts. single-family, two-family, rural, specified. Owner required and conservation. Conditional use to occupy either for detached ADUs in single-family ADU or principal residential districts and certain ru- dwelling. ral residential districts. Additional rural residential district requires conditional permitting for both detached and attached ADUs. Page 258 of 329 Discuss Ordinance Amending Various Sections Of The Kodiak Island Borough... AGENDA ITEM #2.c. AKDU'S AND DON'TS Structure & Lot Parking Occupancy Permitting Process Aesthetics/ Additional Des Details/ Petersburg Borough Structure: 800 ftZ or 40- None. None. Attached ADUs are permitted ADU must be Detached Accessory Dwell - ing Unit Standards 80% of the principal dwell- by right. The borough's website constructed ing's area depending on the requests that homeowners inter- with the same/ size of the lot. Height shall ested in constructing a detached similar materials not exceed the height of ADU contact the borough building as the principal the principal dwelling (no official for more information. dwelling. exceptions) Neither the code nor the website Lot: Addition of ADU specifies if a permit is explicitly cannot exceed maximum required. lot coverage, which for most residential properties is 35%. City of Palmer Structure: Min 300 ft'; Max Studio/1 bd Owner must All applications are reviewed by Attached ADUs The zoning administrator 900 ft'. Can't be larger than ADU require occupy either the zoning administrator within must main- is required to furnish the 40% of main property and +1 spaces; the principal 30 calendar days. Applications tain style and planning and zoning can't have more than 2 bd. 2 bd requires or accessory require a $100 non-refundable fee exterior finishes commission with an annual Max height 25 ft. +2 spaces. dwelling for at and a notarized affidavit stating consistent with ADU report. The commission Lot: One ADU permitted least 6 months the owner will occupy either the the existing is required to reassess their per+1OK ftZ lot zoned each year principal or accessory dwelling and structure. Exte- ordinance if records indicate residential or agriculture. that the ADU is compliant with all rior finishes for that 20% of single-family Attached ADUs may be requirements. detached ADUs structures within the city added to single-family Detached ADUs are required to be must comply have ADUs. [17.86.110] dwellings if they are the placed in the rear of the lot at least with local indus- sole principal dwelling on 10 feet behind the front plain of try standards for Chapter 17.86ACCESSORY DWELLING UNITS the lot. Detached ADUs only the primary dwelling, but appli- residential ex- allowed on lots +20K ftz cants can ask the planning and terior cladding. No lot size restrictions for zoning commission for a waiver if Exteriors must central business district. it negatively impacts a neighbor's be compliant view. Applicants are encouraged to within 8 months gather testimony from impacted from start of neighbors. [17.86.040] construction. City of Soldotna Structure: Max. 750 ft' +1 required. Short term All interested applicants must sub- None. 17.10.390 - Accessory (total lot coverage cannot rentals allowed mit a site plan and obtain a zoning dwelling units. exceed limit for single if principal permit and a building permit. structure) residence is ADUs are permitted within the Lot: Must meet minimum owner -occupied Single -Family, Single -Family/ lot size requirements for Two -Family, Rural Residential, and the zoning district Multi -Family residential zoning districts. Page 259 of 329 Discuss Ordinance Amending Various Sections Of The Kodiak Island Borough... AGENDA ITEM #2.c. AKDU'S AND DON'TS Structure & Lot Parking Occupancy Permitting Process Aesthetics/ Additional Des Details/ Municipality of Anchorage Structure: Max. size is None. Owner occupancy Acessory dwelling units are a per- Formerly The Anchorage Assembly the larger of either 900 is not required. mitted use in all zoning districts. required recently passed massive ft' or 40% of the primary Applicants must obtain a building a purpose reforms to their ADU ordi- dwelling up to 1200 ftz . or land use permit from the Devel- statement on nance to eliminate barriers Max. height of a detached opment Services Department and appearance and and encourage develop- ADU is 25 ft. If ADU is built submit all required documents to character, but ment. Removing owner over a garage, height max. the Building Safety Department at it was removed occupancy requirements extended to 30 ft. No 4700 Elmore Road. Applicable per- in a massive (previously homeowners limit on the number of mit fees vary. For projects under overhaul of the had to live on the property bedrooms. $40k, the permitting fee is $175 ADU code in at least 6 months out of the Lot: ADUs allowed in all per inspection used. Additional 2023. year) opened an additional residential and commercial fees for residential plan review, 10,500 single family rental zones whether there is building safety review, and land homes to ADU develop - another dwelling. Also use plan review add an additional ment. By allowing ADUs allowed on all kinds of $75+ each. on multifamily homes, an housing, including large, estimated 8,000 properties multi -family buildings. became newly eligible Setbacks restrictions are for a bonus dwelling. You the same as those imposed can find more information on the principal structure about these changes at the with exceptions for ADUs Municipality of Anchorage's taller than 15 ft. ADU "Accessory Dwelling Unit (ADU) Project Page" doors may face the street. Residential zoning regulations in both the City of Homer and the Matanuska-Susitna Borough specify that accessory dwelling units are "by -right" permit- ted uses in most single-family and some commercial districts. The Matanuska-Susitna Borough allows two attached or detached accessory dwelling units not exceeding 50% of the total floor area of the primary residence in single-family residential districts, but they can only be used for"guests, family members, or persons provid- ing domestic or health services to the residents of the principal structure : AGENDA ITEM #2.c. AKDU'S AND DON'TS This publication is not a comprehensive list of all ADU ordinances in Alaska. To check if your community has an ADU specific ordinance, you can look up your municipal code at library.municode.com, your local government's website, or contact your city clerk. If you are confused about what codes apply to you, consult the brief overview below on how planning powers are divided in Alaska. 2.1 overview of Powers and Duties of Boroughs & Cities in Relation to Planning, Platting & Land Use Regulation :. Unified Municipality & Home Rule Borough Powers The borough or unified municipality must exercise the powers areawide, but not necessarily in accordance with AS 29.40 First Class Borough The borough must exercise the powers areawide; in accordance with AS 29.40; the borough may allow cities to assume such powers within their boundaries Second Class Borough City Governing Structure Same as for a first class borough Planning, Platting & Land Use Regulation Powers Home Rule City Cities in unorganized boroughs must exercise the powers; if in an organized borough, it may be permit- ted by borough to exercise the powers First Class City Same as for a Home Rule City, except exercised in accordance with AS 29.40 (governance by assembly) Second Class City The City is not required to exercise powers, but may be permitted in the manner described for First Class Boroughs References: AS 29.35.260(c) AS 29.35.260(c) Page 261 of 329 Discuss Ordinance Amending Various Sections Of The Kodiak Island Borough... AGENDA ITEM #2.c. 8 1 AKDU'S AND DON'TS 3.0 Best Practices to Encourage ADU Development In recent years, communities across the United States have turned to ADUs to address the affordable housing crisis. Experts in planning, policy, design, and aging have dedicated considerable time and energy to studying these communities to understand what works and what does not. A recommended first step for communities interested in increasing ADU development is the creation of a dedicated ADU ordinance. This clarifies the ADU development process for applicants and municipal officials and removes barriers that may have been hindering development under existing general zoning regulations. Section 3.1 provides a brief overview of the "Dos" and "Don'ts" of creating ADU-friendly zoning ordinances. Section 3.2 goes in depth into these recommendations, providing questions and considerations for com- munities seeking to improve their existing ADU regulations as well as additional guidance for those who are considering creating an ADU-specific ordinance for the first time. Creating an ADU-specific ordinance and/or focusing on reducing regulatory barriers is not the most effective approach for encouraging ADU development in communities that have no zoning regulations. If you have no exist- ing zoning regulations your largest barriers are likely construction costs due to a lack of contractors or shipping expenses. The most relevant advice for these communities is in section 5 dedicated to financing recommendations. 3.1 Creating ADU-Friendly Regulations ✓ Blanket use permissions for ADUs in all areas zoned for single-family housing. ✓ Allowing ADU development "By-right"/ministerial approval rather than through a discretionary approval process. ✓ Clear, objective standards intended to mitigate environmental hazards and impact on city resources ✓ Regulations should reflect community values without hindering development. ✓ Set a realistic timeline for producing decisions. ✓ No additional off-street parking requirements. ✓ Reasonable size/height/setback requirements that ensure resulting unit can meet the needs of long-term rentals and aging individuals. X Excessive Size/Height/Setback Restrictions - Inhibit development in dense areas with smaller lots where demand for rentals is likely higher. - Lead to "micro" units that can make it difficult to ensure bathrooms and living spaces are of adequate size to accommodate accessibility devices such as wheelchairs or allow caregiver support. X Discretionary Permitting Processes - Creates uncertainty and slows development timelines. X Off -Street Parking Regulations - Stifles development on smaller lots. X Owner -Occupancy Requirements - Can impact appraised home values and complicate rental configurations, suppressing available units. X Aesthetic Design Standards - Makes construction more costly and technically complex. - Vague rules add subjectivity to conditional permitting processes. Page 262 of 329 Discuss Ordinance Amending Various Sections Of The Kodiak Island Borough... AGENDA ITEM #2.c. AKDU'S AND DON'TS The immense diversity in zoning practices, environments, and needs across Alaska communities means that there is no one -size -fits -all approach to increasing development of accessory dwelling units. The considerations included below are split into two buckets, those for communities that have an existing ADU-specific ordinance and those that do not have a specific ordinance but maintain robust zoning and permitting regulations, but the recommendations are relevant to local officials in either position. IF YOU HAVE AN ADU-SPECIFIC ORDINANCE IN PLACE: THE PERMITTING PROCESS Does your ordinance allow ADUs "by right" or subject to discre- tionary approval / a conditional permitting process? "BY RIGHT": Allowing ADUs by right means that anyone who complies with the existing regulations may build an ADU. An application may still be involved, but it is subject to purely ministerial approval (AARP - Expanding ADU Development, 42). Research on ADUs across the U.S. shows that by right approvals encourage ADU development because they remove uncertainty and are usually much quicker than discretionary processes. DISCRETIONARY/CONDITIONAL APPROVAL: There are many valid reasons for local officials and planners to favor a discretionary approval process for ADUs, especially if there is community resistance ADU devel- opment. However, subjecting all ADU development to a conditional permitting process has been shown to greatly discourage development. Discretionary approval processes are often opaque and subjective, which can be intimidating and burdensome for applicants. SPLIT PROCESSES: It is common to allow by right approval for ADUs if they fit all the required regulations and require applicants who do not meet the requirements apply for exceptions through a conditional permitting pro- cess. This can be helpful for some communities, especially if within zoning districts lot sizes are nonuniform and access to city sewage/water/electricity varies. However, if you are currently operating this way, it is important to examine how ADU applications have split between the two processes. If you find that so far, most applicants have had to go through a conditional permitting process, you should reconsider if your baseline standards are too strict. • Consider: Are there clear standards that applicants have a difficult time meeting, such assize limits, parking requirements, or design regulations? How long does your permitting process take? Lengthy and undefined permitting processes create uncertainty and stall development. Experts recommend that at minimum, local officials publish a realistic timeline for their review processes and stick to a set timeframe for producing decisions. Ideally, that timeframe is as quick as possible. Page 263 of 329 Discuss Ordinance Amending Various Sections Of The Kodiak Island Borough... AKDU'S AND DON'TS IF YOU ALREA1 HAVE AN ADU-SPECIFIC ORDINANCE IN PLACE: OFF-STREET PARKING Does your ordinance require additional off-street parking spaces? If you require additional off-street parking spaces, is the requirement equal to or greater than that for a single-family home? Requiring any additional off-street parking spaces for ADUs can stifle development, especially for those hoping to build on smaller lots. Experts recommend no additional off-street parking requirements for ADUs. Usually, single-family zoning regulations already require several off-street parking spots for the principal dwelling, which can often meet the needs of accessory dwelling, especially if it is constructed for an existing member of a household. Community concerns about public street parking can be mitigated by restricting off-street parking requirements to certain zoning districts of concern, such as commercial business districts and the residential areas that border them. But even in these cases, mandating more than one additional off-street parking space is unreasonable considering that ADUs rarely accommodate more than 2 people. AGENDA ITEM #2.c. IF YOU HAVE AN ADU-SPECIFIC ORDINANCE IN PLACE: SIZE/HEIGHT/SETBACK REQUIREMENTS Certain zoning restrictions can inadvertently hamper construction based on universal design standards. Square footage restrictions can make it difficult to ensure bathrooms and living spaces are of adequate size to accommodate accessibility devices such as wheelchairs or caregiver support. Restrictions regard- ing the ADUs proximity to the primary dwelling and/or to the edge of the lot can make it difficult to construct an entrance that is both covered and allows a car to deliver a person right to the door. Communicating accessibility needs to your builder can be intimidating and difficult. Universal design prin- ciples offer helpful guidance about how to construct ADUs to meet the mobility needs of aging individ- uals. Universal Design is defined as"an approach to design that recognizes and accommodates the ordi- nary changes people experience over their lives due to aging and life circumstances. As such, universal design benefits people through all life stages, including children and adults" (Recommendations for Essential and Advanced Universal Design Features and Product Characteristics in New Single -Family Housing, 2009). Additional information about accessible design and universal design principles can be found at the end of this publication. Does your ordinance have a size limit for ADUs? If yes, are the square footage require- ments based on a ratio relative to the primary residence? Size regulations tying the size of the ADU to a percent of the primary dwelling make adding an ADU to a larger home easy but make adding an ADUs prohibitive for smaller homes. Page 264 of 329 Discuss Ordinance Amending Various Sections Of The Kodiak Island Borough... Excessive size limits can hinder the development of accessible living spaces. If your community is interested in encouraging ADUs to facilitate aging in place, excessive size restrictions can make the resulting accessory dwelling unit inaccessible to seniors and all populations with mobility needs. Highly restrictive square footage restrictions can make it difficult to ensure bathrooms and living spaces are of adequate size to accommodate accessibility devices such as wheelchairs or allow caregiver support. Does your ordinance have setback requirements? Municipalities should avoid imposing setback requirements that would result in excessively small developable areas because this can lead to "micro" units that fail to meet the needs of long-term renters and aging individuals. Restrictions regarding the ADUs proximity to the primary dwelling and/or to the edge of the lot can make it difficult to construct an entrance that is both covered and allows a car to deliver a person right to the door. Excessive setback requirements can also inhibit ADU development in smaller and moderately size lots. AGENDA ITEM #2.c. AKDU'S AND DON'TS Does your ordinance have height requirements? Excessive height requirements (such as 10 or 12 ft) inhibit two story ADUs, which can incorporate design elements, such as a mezzanine floor, that make the best use of the small space. Does your ordinance impose minimum lot size requirements? Minimum lot size requirements inhibit development in more dense single-family districts with smaller lots where demand for rentals is likely higher. An ADU Built Above a Garage in Anchorage. Source: Siahtline Institute. 'Anchorage Needs More Moderately Priced Homes: Lets Start with ADUs" (2021). Page 265 of 329 Discuss Ordinance Amending Various Sections Of The Kodiak Island Borough... AKDU'S AND DON'TS IF YOU ALREADY HAVE AN ADU-SPECIFIC ORDINANCE IN PLACE: OCCUPANCY RESTRICTIONS Does your ordinance have occupancy requirements? Putting restrictions about how ADUs can be used by homeowners can be important to ensuring that ADU development meaningfully expands the community's affordable housing stock. Areas highly dependent on tourism may choose to prohibit ADUs from being used for short-term rentals to ensure that they will be accessible to full time residents. However, prohibiting homeowners from using ADUs as rentals to nonfamily members dramatically inhibits development. In addition to being self-defeating for municipalities hoping to increase their affordable housing stock, homeown- ers often rely on future rental income to finance ADU development, subsidize increased property taxes, and generate income during retirement. Even if rentals are allowed, owner -occupancy requirements are generally discouraged by housing experts. Mandating that homeowners must live in the primary residence to rent the ADU creates a myriad of legal burdens. This requirement means that if they choose to move, they cannot legally rent out both units. If they want to allow another family member to live in the primary residence, they must add them to the deed to continue renting the ADU. If a person inherits a single-family home with an ADU, they are unable to rent out both residences unless they move into the primary residence. Homeowners also are prevented from living in the ADU and renting out the primary dwelling. These complications can impact appraised home values and further restrict available rental properties. • Caveat: Municipalities interested in encouraging tourism but concerned about mitigating its impacts in residential areas may prefer to impose own- er -occupancy requirements only for ADUs used for short-term rentals. IF YOU ALREAC HAVE AN ADU-SPECIFIC ORDINANCE IN PLACE: AESTHETIC STANDARDS AGENDA ITEM #2.c. Does your ordinance impose discretionary design standards related to neighborhood character and aesthetic compatibility? Community concerns about how ADUs will influence neighborhood character and aesthetics are common. Regulations imposing discretionary design standards may have been important to garnering the political support necessary to pass an ADU ordinance. Yet, it is important to evaluate if the goals of these requirements are worth the increased burden to applicants. Aesthetic design standards increase costs and add technical complexity to the ADU construction and permitting processes. Requiring ADUs to match the appearance of the principal dwelling or to be constructed to maintain the appear- ance of a single-family structure can hinder accessible design, delay construction, and intimidate otherwise interested homeowners. When these provisions are vague, they create uncertainty for applicants and introduce considerable subjectivity and bias to the permitting process. Page 266 of 329 Discuss Ordinance Amending Various Sections Of The Kodiak Island Borough... AGENDA ITEM #2.c. AKDU'S AND DON'TS IF YOU DO NOT HAVE AN ADU-SPECIFIC ORDINANCE, BUT THERE ARE EXISTING REGULATIONS REGARDING PERMITTING AND CONDITIONAL USE Do you have existing ADUs in your community? If yes, what processes have homeowners gone through to build them? In communities where ADUs can already be created by right, creating an ADU-specific ordinance may not be necessary. Rather, an informational campaign or a dedicated grant program may be more effective. Do you have existing restrictions concerning structural changes in single-family residential districts? Adding an accessory dwelling unit to a single-family home may already be a permitted use in your code. Alternatively, your existing code could consider the addition of an accessory dwelling an a violation of single and multi -family housing zoning regulations, deeply complicating the ADU development process. What is your conditional permitting process like? It is important to realistically evaluate the time, effort, and objectivity of your existing process, as it can greatly impact the development of ADUs if you choose to create an ADU ordinance that relies partly or entirely on your existing conditional permitting process. • Do applicants often have to apply several times before getting approval? • Are there municipal staff members dedicated to sup- porting applicants through the process? • How frequently does your planning commission review applications? • Do planning commission meetings regularly fail to cover all the necessary topics/applications because there is too much on the schedule? Does your community have concerns about infill and/or increased density? Is political and community sentiment particularly favorable or hostile toward ADUs? It may be difficult to judge public sentiment about ADUs specifically, but prior hostility to multi -family housing developments in areas with majority sin- gle-family homes can indicate there may be pushbacks to encouraging ADU development. When drafting an ADU ordinance, it is important to identify and address community concerns. ADU ordi- nances can be curated to the specific needs of your community while still following the recommendations of experts. Certain approaches may include: • Instituting by right permitting processes for ADUs in some zoning districts and requiring a discretionary use permit in others • Crafting different regulations for internal, attached, and detached ADUs. • Restricting use of ADUs as short-term rentals. Page 267 of 329 Discuss Ordinance Amending Various Sections Of The Kodiak Island Borough... AGENDA ITEM #2.c. AKDU'S AND DON'TS 4.0 Financing ADUs in Your Community While ADUs are cheaper than constructing an entirely new single-family home, they can still be cost -prohibitive for many homeowners. In a 2022 survey of Anchorage homeowners with ADUs, over fifty percent of respondents reported that they earned over $150,000 annually (ADU ANC Survey). The Sightline Institute, a thin ktank dedicated to promoting sustainable communities across the Pacific Northwest, estimates that attached ADUs created by modifying an existing structure cost about $32,000 on average in Anchorage. Detached ADUs requiring a newly built structure are estimated to cost about $79,000. For much of the rest of the state, especially the most rural regions, costs are likely much higher. In the North Slope Borough, construction costs per square root can range from $448 (in Nuiqsut) to $660 (in Point Lay) and more. Depending on the village, a 1,500 square foot home—only slightly larger than the average ADU—can cost between $672,000 to $990,000 (NSB Comprehensive Plan 2019). Municipal officials can reduce financial barriers in a variety of ways: Designated Municipal Funding Scheme Grant -Based Subsidies Municipalities across the country have established grant programs to subsidize the cost of ADUs. Providing cash subsidies to incentive ADU development allows communities to leverage the financial capacity of local homeowners and produce more affordable rent units at a fraction of the cost of a typical publicly funded affordable housing development. In 2018, the City and Borough of Juneau appropriated $480,000 for an incentive grant program providing up to $6,000 to homeowners interested in constructing and ADU. In August of 2023, the Assembly voted to expand this effort, creating the Accessory Dwelling Unit Grant program (ADUG). ADUG provides grants up to $13,5000 to 16 homeowners annually, allocated on a first come, first served basis. In addition to meeting all ADU regulations and passing a final inspection within two years of being issued a building permit, recipients must record a deed restriction agreeing not to use the ADU as a short-term rental (fewer than 30 consecu- tive days) for the first five years. More information can be found online and on the website for the Cites Borough of Juneau. For municipalities that do not have the funds or polit- ical will to establish such a program, local officials can also look to establish partnership with local founda- tions to either fund a grant program or provide seed funding to local non-profit design, construction, and development organizations. Loans Local jurisdictions can also provide subsidies through low-interest loans, loan forgiveness, and by estab- lishing local loan pools. Low interest loans and loan forgiveness can be a more financially and politically viable option for some municipalities. Like the City and Borough of Juneau's ADUG program, eligibility for low interest loans and loan forgiveness can be restricted to homeowners who agree to use their ADU as a long term, affordable rental or for facilitating aging at home. Local loan pools leverage private loan funds generated from partnership with local banks and philanthropic organizations to provide below-market loans to income -eligible homeowners for ADU construction. Attached ADU Added to the Basement of a Juneau Home Through the ADUG Program Source: KTOO -Anchorage Daily News 'Alaska cities, facing housing crunch, encourage backyard cottages and apartment additions" (2018). Page 268 of 329 Discuss Ordinance Amending Various Sections Of The Kodiak Island Borough... Property Tax Abatement The increased property tax burden resulting from the value added by an ADU can intimidate interested homeowners. Reducing or postponing that burden through property tax abatement can be a powerful incentive. In 2022, Anchorage Mayor Dave Bronson's adminis- tration proposed postponing property tax increases tied to the creation of an ADU for ten years. Assembly member Meg Zalatel proposed applying this abate- ment only to ADUs offered as long-term housing. Though this proposal was not adopted by the Assembly, a major overhaul of ADU regulations was passed in 2023. Whether, how, and to what end your local government is able to offer property tax exemptions varies by gov- erning structure. Interested officials should consult Title § 29.45.050 of the Alaska state statues, which identifies an extensive list of optional exemptions a municipality may enact. Design Incentives Design and development costs can force interested homeowners to pay thousands before they even break ground on a new ADU, especially if project plans must be revised multiple times during the permitting process. Municipalities can offset these costs by pro- viding free design and project support to applicants. Additionally, planning officials can save homeowners thousands of dollars by offering applicants the option to use pre -approved, permit -ready plans for ADUs of a range of sizes. Providing model plans can also reduce administrative burdens for municipalities by simpli- fying the permitting process and promote aesthetic standards favored by the planning commission without burdening applicants with additional regulations. (AARP ADU Design & Development) Construction & Permitting Incentives Permit and development fees can be a significant deterrent. Many municipalities have chosen to reduce permit fees, offer fee waivers, or completely remove fees for ADU permit applications. Doing this in conjunc- tion with removing other fees, such as infrastructure AGENDA ITEM #2.c. AKDU'S AND DON'TS impact charges, can make a significant impact on the total cost. Additionally, any measures you can take to facilitate a faster permit review process, such as hiring or training staff dedicated to ADU permit review, can meaningfully reduce costs. (AARP ADU Design & Development) Facilitating Economies of Scale Communities that struggle with exorbitant construc- tion costs often also have high rates of overcrowding and limited or no senior living facilities. Local officials can help reduce construction costs in rural regions by encouraging interested homeowners to work together to create economies of scale. Though it applies to new single-family homes, not ADUs, RurAL CAP's Mutual Self -Help Housing Program provides an excellent model of how economies of scale and "sweat equity" can operate in Alaska. Facilitated in partnership with USDA Rural Development and Alaska Housing Finance Corporation, the Mutual Self -Help Housing Program provides first-time home buyers with the opportunity to buy a home without a down payment. Groups of six to twelve participants work together to build one another's homes under the guid- ance of a RurAL CAP construction supervisor, providing at least 65% of the labor and working a minimum of 35 hours per week. All homebuyers contribute to the construction of all the homes, and no one moves in until every house is complete. The"sweat equity" created by the participant's labor eliminates the down payment and reduces their resulting mortgage, which are originated by RurAL CAP and can have interest rates as low as 1 %. For aging communities or those who cannot invest "sweat equity"for other reasons, prefabricated units are an excellent option to speed up the process and simplify logistics. Interested homeowners can possibly reduce design and transportation costs by approaching a prefabrication contractor as a group. Additional information about prefabrication options can be found at the end of this publication. Page 269 of 329 Discuss Ordinance Amending Various Sections Of The Kodiak Island Borough... AGENDA ITEM #2.c. AKDU'S AND DON'TS Additional Resources ArCnccihln nncinr • Northwest Universal Design Council (NWUDC): https://www.environmentsforall.org/ - The Council acts as an expert resource on universal design in the Pacific Northwest. Their website provides a simplified overview of the principles and guidelines of universal design, a detailed home checklist which provides essential guidelines for each room and element of a house as well as additional considerations, and a library of resources and research from organizations and universities across the country. • "Aging in Place Alaska" (University of Alaska Fairbanks Cooperative Extension Service): https:Hhomemods.org/materials/aging-in-place-in-alaska/ - This 20 -minute video, narrated by Art Nash, Energy Specialist at the University of Alaska Fairbanks Cooperative Extension Service, examines universal design principles as they related to Alaskan homes. • Alaska Independent Living Centers - These are individual organizations which act as an access point for disability -related services for individuals across Alaska. - Southeast Alaska Independent Living (SAIL) operates the Home Modifications for Aging in Place (HomeMAPTM) Program, which provides expert evaluations of mobility and construction needs. A SAIL team conducts a home survey and produces a written report that lays out the homeowner's individualized needs. This report can then be used to guide construction and communicate design needs to contractors. > https://www.sailinc.org/home-modifications-for-aging-in-place/ - For those residing outside the southeast, Access Alaska and Arctic Access - Nome can provide information regarding programs and services that may be helpful during the design process. > Access Alaska: htti2s://www.accessalaska.orci > Arctic Access - Nome: https://www.facebook.com/people/Arctic-Access-Inc/100068189572892/ * Email: arcticaccessnome@cici.net • Alaska Organizations that are affiliated with or employ a National Association of Home Builders Certified Aging -In -Place Specialist. Those with this certification can provide expert advice regarding accessible design. - Alaska Housing Finance Corporation: https://www.ahfc.us/senior-support - Alaska Community Development Corporation: http://www.alaskacdc.org/ - Cold Climate Housing Research Center: https:Hcchrc.org/- Prefabricated Units FabCab: https://fabcab.com/about/our-story-and-bios/ - A company based in Pacific Northwest specializing in incorporating universal design principles into prefabricated homes. Their founder is a member of the Northwest Universal Design Council. Skyline Homes & Champion Homes: - National companies that supply manufactured homes through a nationwide network of independent dealers. These companies have manufacturers in Oregan and British Columbia and have shipped homes to Alaska. They also have model ADUs. Both companies have a search function to find retailers near where you live, but it is best to contact them directly for more detailed information about Canadian suppliers. - Skyline: https://www.skylinehomes.com/ - Champion: https://www.championhomes.com/ Page 270 of 329 Discuss Ordinance Amending Various Sections Of The Kodiak Island Borough... AGENDA ITEM #2.c. AKDU'S AND DON'TS ADU Finance, Policy, & Development • "Accessory Dwelling Units: A Step by Step Guide to Design and Development" (AARP): https://www. aarp.org/pri/topics/livable-communities/housing/accessory-dwelling-units-guide-design-development/ • "Expanding ADU Development and Occupancy: Solutions for Removing Local Barriers to ADU Construction" (AARP and the American Planning Association): httpss://www.aarp.org/pri/topics/ livable-communities/housing/expanding-adu-development-solutions-local-barriers.html • "Overcoming Barriers to Bringing ADU Development to Scale" (Enterprise Community Partners): https://www.enterprisecommunity.org/resources/overcoming-barriers-bringi na-adu-development-scale-11049 • The ABCs of ADUs: A guide to Accessory Dwelling Units and how they expand housing options for people of all ages (AARP): https://www.aarp.org/livable-communities/housing/info-2019/accessory- dwel ling-units-guide-download.html Powers and Duties of Boroughs & Cities in Relation to Planning, Platting & Land Use Reaulation • Alaska Planning Commission Handbook (Department of Commerce, Community, and Economic Development; Division of Community and Regional Affairs): https://www.commerce.alaska.gov/web/ Portals/4/pub/Planning%20Commission%20Handbook%20Jan%202012.pdf • Planning Powers for Alaska Communities (Alaska Dept. Of Transportation and Public Facilities): https://dot.alaska.gov/creci/planninci/assets/Planning Power for Alaskan Communities.pdf • Alaska's Local Government: State Commitments, Local Roles and Responsibilities (Alaska Municipal League): https://www.akmi.org/wp-content/uploads/2023/02/AML-Govt-Primer-2023-revise-web.pdf Page 271 of 329 Discuss Ordinance Amending Various Sections Of The Kodiak Island Borough... AGENDA ITEM #2.c. Page 272 of 329 Discuss Ordinance Amending Various Sections Of The Kodiak Island Borough... AGENDA ITEM #2.d. KODIAK ISLAND BOROUGH STAFF REPORT OCTOBER 10, 2024 ASSEMBLY WORK SESSION SUBJECT: Discuss The KIB Joint Use Agreement With The Kodiak Island Borough School District And The City of Kodiak ORIGINATOR: Aimee Williams, Borough Manager RECOMMENDATION: DISCUSSION: The Kodiak Island Borough Assembly and City of Kodiak Council directed staff during the February 28, 2024, Joint Work Session to bring the three entities together to update this joint use agreement. Staff from KIB, KIBSD, and CoK have met on multiple occasions and concur with the language that is included in this agreement. KIBSD approved the new version of the agreement at their September 23, 2024, school board meeting and the agreement has been signed by the Superintendent and the School Board President. ALTERNATIVES: FISCAL IMPACT: OTHER INFORMATION: Attached you will find three items - 1) The current update with tracked changes 2) The previous version of the agreement from FY2019. 3) A clean version of the agreement that has already been signed by KIBSD Kodiak Island Borough Discuss The KIB Joint Use Agreement With The Kodiak Island Borough Schoo... Page 273 of 329 City of Kodiak Kodiak Island Borough Irrrlri- y""j� � Kodiak, AK 99615 4? 710 Mill Bay Road 4. ®� 710 Mill Bay Road, t Kodiak, AK 99615 Kodiak Island Borough School District A�aKA 722 Mill Bay Road, Kodiak, AK 99165 JOINT AGREEMENT FOR THE USE AND OPERATION OF CITY OF KODIAK, KODIAK ISLAND BOROUGH AND KODIAK ISLAND BOROUGH SCHOOL DISTRICT FACILITIES Between CITY of KODIAK, KODIAK ISLAND BOROUGH and KODIAK ISLAND BOROUGH SCHOOL DISTRICT This Agreement entered into this 23rd day of September Sept,.... eF 2022 la"^r 2024, by and between the CITY OF KODIAK, hereinafter referred to as the "City," the KODIAK ISLAND BOROUGH, hereinafter referred to as the "Borough," and the KODIAK ISLAND BOROUGH SCHOOL DISTRICT, hereinafter referred to as the "District." PREAMBLE Since the completion of Baranof Park in 1973, the Kodiak Island Borough (Borough), the City of Kodiak (City), and the Kodiak Island Borough School District (District) have pooled their resources to meet continuous youth and community demands for developmental and recreational opportunities. The Borough, City and District have cooperated in planning and jointly using their separately owned facilities and grounds for the benefit of students, community members and visitors. The Borough/City/District partnership has effectively maximized the use of their respective facilities to meet community and student needs, beyond what each could do alone. In addition to creating more opportunities for their respective constituent groups, sharing facilities has led to greater efficiencies in cost and operations. The Borough, City, and District acknowledge the value of their collaboration and seek to extend their working relationship. To maximize the use of their facilities for the benefit of the community, the three parties will continue to provide priority access to each other, continue to equitably share their resources, and continue to give priority to programs that benefit Kodiak youth and the community as a whole. Additionally, the Borough, City, and District believe that they can best accomplish their objectives and, at the same time, encourage other community-based recreational activities by forming a cooperative partnership involving the Borough, City, and District. All three parties support the goal of increasing community access and use of Borough, City and District facilities and grounds. JNow, Therefore, in consideration of the foregoing, the parties agree as follows: VISION STATEMENT: All public facilities and grounds, owned by the families to the maximum extent possible. The Borough, City,and District have mutual interests in helping young people learn and develop recreation skills and in providing City of Kodiak, Kodiak Island Borough, and Page 1 of 7 Kodiak Island Borough School District Joint Use Agreement 20242-20275 AGENDA ITEM #2.d. Formatted: Font: 12 pt, Not Bold Formatted: Font: (Default) Times New Roman, 12 pt,Bold Formatted: Font: (Default) Times New Roman, 12 pt Formatted: Font: (Default) Times New Roman, 12 pt Formatted: Font: (Default) Times New Roman, 12 pt Page 274 of 329 Discuss The KIB Joint Use Agreement With The Kodiak Island Borough Schoo... AGENDA ITEM #2.d. opportunities for people of all ages to participate in recreation activities. It is incumbent upon the Borough, City, and District to develop a unified approach to -J Formatted: Font: (Default) Times New Roman, 12 pt serving the community's recreation needs and to cooperatively maintain Borough, Citv. and District facilities and grounds in order to foster communitv learning and 4 Formatted: Font: (Default) Times New Roman, 12 of L PURPOSE OF THE AGREEMENT: This Agreement is intended to enhance and not interfere with the primary mission of Borough, City, and District governance. In establishing this Agreement, the Borough, City and District seek to: A. Effectively and efficiently manage the use of Borough, City, and District facilities and grounds for the benefit of Kodiak's youth and citizens; B. Encourage joint use of their respective facilities and grounds and give priority usage, after the owning agency's programming and/or on-going community obligations are met, to the requests submitted by the other party; C. Provide facilities and grounds usable for Borough, City and District programs; D. Establish procedures to encourage cooperative working relationships between Borough, City, and District personnel at all levels and to quickly resolve issues; E. Encourage joint and cooperative ventures, including facility maintenance and development. II. TERMS: This Agreement shall be effective for a term of thirty-two (274632) months. The Agreement commencing on September ' 2022A�November 1, 2024, and ending _ ug—a_-�- - t 3�-,'_, '^2`June 30, 2027. -The agreement may continue as a month--to-month agreement by written consent by all parties. The agreement may be terminated at the end of the fiscal year by any of the three parties with a minimum 90 day 30-d63s-Lwritten notice to all parties. III. PROGRAM: Borough, City, and District program and facility offerings should be complementary and supportive and- issues should be resolved in an equitable process with the overall mission in consideratioLiflot eompetitive in natEffe. Joint planning, reporting and evaluation are necessary to achieve this end. IV. FACILITIES: District facilities subject to this Agreement, include the community pool, gyms (high school, middle school, Main Elementary, East Elementary and North Star), locker rooms, and specifically designated classrooms and other areas together with a limited amount of office and storage space. Borough facilities, subject to this Agreement, include the- paved bike/walking path from Benny Benson to Abercrombie Park, two fields at Woody Way, the Dark Lake Field, East Elementary Field, and Coon Field. City facilities; subject to this Agreement, include the Baranof Park track, football field, baseball field and ice rink, East Addition Park softball field, Teen Center, and other City parks and recreation facilities. V. ISSUANCE OF FACILITY KEYS: Keys shall be issued, or other means of access provided, for curriculum/program events and activities approved under this Agreement. Issuance of keys to agency personnel for use of another agency's facilities shall be limited to those necessary to implement this Agreement. All agencies agree to not duplicate keys issued by another agency. City of Kodiak, Kodiak Island Borough, and Kodiak Island Borough School District Joint Use Agreement 20242-20275 Page 2 of 7 Formatted: Font: (Default) Times New Roman, 12 pt, Not Bold Page 275 of 329 Discuss The KIB Joint Use Agreement With The Kodiak Island Borough Schoo... VI. TIME PERIODS FOR SPECIFIC NEGOTIATED USE: A. Monday - Friday during the period of the regular school year, 7:30AM- 5:30PM; B. Monday - Friday during the period of the regular school year, 5:30PM - 7:30AM; C. Weekends, September through May, including extended school closures such as Thanksgiving, Winter Break, and Spring Break.; D. Summer, June 1st — September 1st VII. PRIORITY OF USE: Each agency will make its buildings and grounds available for use by the other agencies on a first priority basis after the scheduling requirements for its own programs have been met. A. School District Facilities: Priority of use is relative and reflects the intended primary use of the facilities for educational purposes and the secondary use of community service for recreation, education, and leisure -time activities. In the time period VI "A." the District shall have the exclusive right to use of District facilities. The District may share the space. In the time period VI `B.," joint use will be assumed with first priority given to District sponsored activities. In time period VI "C." and "D." the District and City will assume joint -use with mutual access. In the scheduling of space, the District will prioritize- the City's needs first and then the needs of other community agencies or groups. The District will not retain the gym or pool for daily practice of District teams beyond 7:30PM. B. Borough Facilities: The Borough will regulate use of Borough facilities under the following guidelines: Priority of use is given to Borough needs. In the absence of Borough needs, the City shall have management authority over Borough facilities. C. City Facilities: The City will regulate use of City Facilities under the following guidelines: Priority of use is given to District interscholastic athletic practices and competition. In the time period VI "A.," the School District shall have preferential use of City Facilities. In other time periods the needs of City, District and community programs will be evaluated and access allocated according to the needs of each. VIII. SCHEDULING OF ACTIVITIES: Specific requests for use will be made parry to party, and will include the following: person in charge, space desired, approximate number of participants, time, description of the activities involved, plan of supervision and control, and person(s) designated to assist in set-up and take down of equipment needed. Approval rests with the Borough Engineering/Facilities Director, District Maintenance and Operations Director, and the City Parks and Recreation Director, or their designee. After the initial approval is granted, each parry must provide the other with at least one week's advance notice, whenever possible, prior to commencement of or change in the schedule of the approved activity. Once a party establishes its schedule, each must give the other at least one week's advance notice before changing their schedule. Use of District facilities by City of Kodiak, Kodiak Island Borough, and Kodiak Island Borough School District Joint Use Agreement 20242-20275 Page 3 of 7 AGENDA ITEM #2.d. Page 276 of 329 Discuss The KIB Joint Use Agreement With The Kodiak Island Borough Schoo... groups outside the realm of the Borough, City, or District, at times other than during regular school hours, will be scheduled by the District Community Schools Supervisor after notification and review with affected City, Borough, and District staff. IX. CHANGES IN POLICY, BUDGET, OR ORGANIZATION: When the Borough, City, or District contemplates a change in policy, budget, or organization that could impact the joint -use access, each parry will consult with the other parties, with sufficient notice, so each party can analyze the impacts and plan for the change. X. DENIAL OF FACILITIES: The Borough, City, and District reserve the right to deny the use of their facilities for cause to groups and/or individuals. The Borough, City, and District will designate individuals responsible to enact -effect this denial. Specific rules will be posted in areas of use. Attention to the rules will be accomplished by each activity and as needed throughout the duration of the schedule. XI. CITY OBLIGATION FOR DISTRICT FACILITIES: —the City's responsibility is restricted to public use of District facilities for those activities under the City's sponsorship. This means that the City will: A. Supervise all City staff and volunteers. B. Schedule all City programs and activities; coordinate with the Community Schools Office; C. Provide pool vacuuming, filtration, and chemical upkeep; C— D. D. Provide for safe storage and handling of all items used daily, including hazardous chemicals; E. Ensure that all scheduled activities will conclude by 10:30 p.m. and provide for policing of area used at end of each activity; F. Provide trained, qualified personnel for supervision of all City recreation activities and ensure that City participants have vacated District facilities prior to supervisor's conclusion of duties. Provide lifeguard personnel with lifeguard certificate. G. Provide advanced notification of supply needs, e.g. pool chemicals. H.The City will inform the District, and the District will inform the City of any known equipment or items that are not functioning properly; I. The City will schedule and provide lawn mowing during the summer months as needed for East Elementary, Main Elementary, North Star Elementary, Peterson Elementary, Kodiak Middle School, and Kodiak High School XII. CITY OBLIGATION FOR BOROUGH FACILITIES—The City's responsibility for use of Borough facilities is to manage, maintain, and operate said facilities as if they were City facilities. This means that the City will: City of Kodiak, Kodiak Island Borough, and Kodiak Island Borough School District Joint Use Agreement 20242-20275 Page 4 of 7 AGENDA ITEM #2.d. Page 277 of 329 Discuss The KIB Joint Use Agreement With The Kodiak Island Borough Schoo... AGENDA ITEM #2.d. A. Maintain the playing surfaces of Borough fields to include mowing, dragging, lining and other basic maintenance procedures; B. Do limited maintenance on fences, buildings, bleachers, goal posts, bases and other amenities and support structures; C. Schedule the use of facilities to ensure appropriate maximum use and benefit by the community. XIIL DISTRICT OBLIGATION—the District will: A. Provide heat, light, power, chemical supplies and equipment, and water necessary for both District and City use; B. Provide minor mechanical work; ( Please note that this change did not track correctly and should have – Provide all m eF .............ieal work incl ding C. Provide proper and safe storage area for the inventory of pool chemicals; D. Provide all building maintenance including required maintenance to ensure individual health and safety in the gyms and supporting facilities; E. Provide all custodial services. XIV. BOROUGH OBLIGATION—the Borough will: A. Provide necessary maintenance in addition to section XIII A and B to ensure individual health and safety on the fields and supporting facilities; B. Include the City in the planning and design stages of Borough and District facilities, which are or could be subject to this Agreement. XV. ACCESS TO STORAGE: Wherever possible, each agency shall make available storage space on site for joint -use program equipment and supplies. XVI. FEES: All fees charged for participation in one parry's programs in another party's facility belong to the party sponsoring program, not to the party that owns the facility- XVIL COOPERATIVE CAPITAL DEVELOPMENT FINANCING: The Borough, City and District will cooperatively plan development at appropriate joint -use sites or facilities, exploring whenever possible avenues for blending fund sources and resources to accomplish mutual goals. Where possible, the three parties will work together to use other public and private financing opportunities to accomplish mutual objectives and to develop facilities with standards sufficient to meet the programming requirements of all three parties. XVIIL INTERAGENCY TRAINING: The Borough, City, and District shall conduct ongoingratraining and orientation programs for key personnel involved in implementing this Agreement; including school principals, coaches, teachers, secretaries, maintenance technicians and custodians. Topics to be covered include the history and purpose of this Joint Use Agreement, benefits to students/families and community residents, specific provisions established by this Agreement and key implementation procedures. City of Kodiak, Kodiak Island Borough, and Page 5 of 7 Kodiak Island Borough School District Joint Use Agreement 20242-20275 Page 278 of 329 Discuss The KIB Joint Use Agreement With The Kodiak Island Borough Schoo... XIX. LIABILITY INSURANCE: The Borough, City, and District shall, at all times, maintain and keep in effect liability insurance with limits not less than $1,000,000 per occurrence and/or aggregate combined single limit, personal injury, bodily injury and property damage, naming each subsequent party as an additional insured. The Borough, City and District will provide upon request, a copy of the required Certificate of Insurance and provide thirty (30) days written notice prior to cancellation of insurance policy. XX. INDEMNIFICATION: The Borough, City, and District shall, to the fullest extent permitted by law, defend, indemnify, and hold harmless each other, including each other's elected and appointed officials, employees, and volunteers against any and all liabilities, claims, demands, lawsuits, or losses including costs and reasonable attorney fees incurred in defense thereof, arising out of or in any way connected or associated with this Agreement. XXI. PROPERTY DAMAGE: The Borough, City, and District will reimburse each other for damage to the other's facilities due to negligence or acts of employees or persons involved with sponsored activities hosted in w4ag4h�facilities during times that said facilities are subject to the exclusive use of the Borough, City or District. Nothing herein contained shall be construed to obligate the Borough, City or District to make repairs for damage due to ordinary wear and tear. City of Kodiak, Kodiak Island Borough, and Kodiak Island Borough School District Joint Use Agreement 20242-20275 Page 6 of 7 AGENDA ITEM #2.d. Page 279 of 329 Discuss The KIB Joint Use Agreement With The Kodiak Island Borough Schoo... AGENDA ITEM #2.d. City of Kodiak Kodiak Island Borough K. 1. B. School District City Manager Borough Manager School Superintendent Date Date Date Attest/City Clerk Attest/Borough Clerk School Board President Date Date Date School Board Clerk Date City of Kodiak, Kodiak Island Borough, and Page 7 of 7 Kodiak Island Borough School District Joint Use Agreement 20242-2027s Page 280 of 329 Discuss The KIB Joint Use Agreement With The Kodiak Island Borough Schoo... AGENDA ITEM #2.d. Previous version - FY2019-32 City of Kodiak °j ' aoA Kodiak Island Borough r! ri r. 710 Mill Bay Road < °'` y~ 710 Mill Bay Road, Kodiak, AK 99615 a Kodiak, AK 99615 Kodiak Island Borough School District 4uBKA 722 Mill Bay Road, Kodiak, AK 99165 JOINT AGREEMENT FOR THE USE AND OPERATION OF CITY OF KODIAK, KODIAK ISLAND BOROUGH AND KODIAK ISLAND BOROUGH SCHOOL DISTRICT FACILITIES Between CITY of KODIAK, KODIAK ISLAND BOROUGH and KODIAK ISLAND BOROUGH SCHOOL DISTRICT This Agreement entered into this 1st day of September 2018, by and between the CITY OF KODIAK, hereinafter referred to as the "City," the KODIAK ISLAND BOROUGH, hereinafter referred to as the "Borough," and the KODIAK ISLAND BOROUGH SCHOOL DISTRICT, hereinafter referred to as the "District." PREAMBLE Since the completion of Baranof Park in 1973, the Kodiak Island Borough (Borough), the City of Kodiak (City), and the Kodiak Island Borough School District (District) have pooled their resources to meet continuous youth and community demands for developmental and recreational opportunities. The Borough, City and District have cooperated in planning and jointly using their separately owned facilities and grounds for the benefit of students, community members and visitors. The Borough/City/District partnership has effectively maximized the use of their respective facilities to meet community and student needs, beyond what each could do alone. In addition to creating more opportunities for their respective constituent groups, sharing facilities has led to greater efficiencies in cost and operations. The Borough, City and District acknowledge the value of their collaboration and seek to extend their working relationship. In order to maximize the use of their facilities for the benefit of the community, the three parties will continue to provide priority access to each other, continue to equitably share their resources, and continue to give priority to programs that benefit Kodiak youth and the community as a whole. Additionally, the Borough, City and District believe that they can best accomplish their objectives and, at the same time, encourage other community-based recreational activities by forming a cooperative partnership involving the Borough, City, District, and the community. All three parties support the goal of increasing community access and use of Borough, City and District facilities and grounds. Now, Therefore, in consideration of the foregoing, the parties agree as follows: VISION STATEMENT: All public facilities and grounds, owned by the Borough, City and District, shall benefit and be available to Kodiak children, adults, and families to the maximum extent possible. The Borough, City and District have mutual interests in helping young people learn and develop recreation skills and in providing opportunities for people of all ages to participate in recreation activities. It is incumbent upon the Borough, City and District to develop a unified approach to serving the community's City of Kodiak, Kodiak Island Borough, and Kodiak Island Borough school District Joint Use Agreement 2018-2021 Page 281 of 329 Discuss The KIB Joint Use Agreement With The Kodiak Island Borough Schoo... AGENDA ITEM #2.d. recreation needs and to cooperatively maintain Borough, City and District facilities and grounds in order to foster community learning and vitality. I. PURPOSE OF THE AGREEMENT: This Agreement is intended to enhance and not interfere with the primary mission of Borough, City and District governance. In establishing this Agreement the Borough, City and District seek to: A. Effectively and efficiently manage the use of Borough, City and District facilities and grounds for the benefit of Kodiak's youth and citizens; B. Encourage joint use of their respective facilities and grounds and give priority usage, after the owning agency's programming and/or on-going community obligations are met, to the requests submitted by the other party C. Provide facilities and grounds usable for Borough, City and District programs; D. Establish procedures to encourage cooperative working relationships between Borough, City and District personnel at all levels and to quickly resolve issues; E. Encourage joint and cooperative ventures, including facility maintenance and development. II. TERMS: This Agreement shall be effective for a term of 36 months. The Agreement commencing on September 1, 2018 and ending August 31, 2021. The agreement may continue as a month to month agreement by written consent by all parties. The agreement may be terminated by any of the three parties with 30 days' written notice. III. PROGRAM: Borough, City and District program and facility offerings should be complementary and supportive and not competitive in nature. Joint planning, reporting and evaluation are necessary to achieve this end. IV. FACILITIES: District facilities subject to this Agreement, include the pool, gyms (high school, middle school, Main Elementary, East Elementary and North Star), locker rooms, and specifically designated classrooms and other areas together with a limited amount of office and storage space. Borough facilities, subject to this Agreement, include the two fields at Woody Way, the Dark Lake Field, East Elementary Field and Coon Field. City facilities, subject to this Agreement, include the Baranof Park track, football field, baseball field and ice rink, East Addition Park softball field, Teen Center and other City parks and recreation facilities. V. ISSUANCE OF FACILITY KEYS: Keys shall be issued, or other means of access provided, for curriculum/program events and activities approved under this Agreement. Issuance of keys to agency personnel for use of another agency's facilities shall be limited to those necessary to implement this Agreement. All agencies agree to not duplicate keys issued by another agency. VI. TIME PERIODS FOR SPECIFIC NEGOTIATED USE: A. Monday - Friday during the period of the regular school year, 7:30 a.m. - 5:30 p.m.; B. Monday - Friday during the period of the regular school year, 5:30 p.m. - 7:30 a.m.; C. Weekends, September through May, including extended school closures such as Thanksgiving, Winter Break, and Spring Break.; D. Summer, June 1 S` — September 1'. City of Kodiak, Kodiak Island Borough, and Kodiak Island Borough School District Joint Use Agreement 2018-2021 Page 282 of 329 Discuss The KIB Joint Use Agreement With The Kodiak Island Borough Schoo... AGENDA ITEM #2.d. VII. PRIORITY OF USE: Each agency will make its buildings and grounds available for use by the other agencies on a first priority basis after the scheduling requirements for its own programs have been met. A. School District Facilities: Priority of use is relative and reflects the intended primary use of the facilities for educational purposes and the secondary use of community service for recreation, education, and leisure -time activities. In the time period VI "A." the District shall have the exclusive right to use of District facilities. The District may share the space. In the time period VI "B.," joint use will be assumed with first priority given to District sponsored activities. In time period VI "C." and "D." the District and City will assume joint -use with mutual access. In the scheduling of space, the District will prioritize- the City's needs first and then the needs of other community agencies or groups. The District will not retain the gym or pool for daily practice of District teams beyond 7:30 p.m. B. Borough Facilities: The Borough will regulate use of Borough facilities under the following guidelines: Priority of use is given to Borough needs. In the absence of Borough needs, the City shall have management authority over Borough facilities. C. City Facilities: The City will regulate use of City Facilities under the following guidelines: Priority of use is given to District interscholastic athletic practices and competition. In the time period VI "A.," the School District shall have preferential use of City Facilities. In other time periods the needs of City, District and community programs will be evaluated and access allocated according to the needs of each. VIII. SCHEDULING OF ACTIVITIES: Specific requests for use will be made party to party, and will include the following: person in charge, space desired, approximate number of participants, time, description of the activities involved, plan of supervision and control, and person(s) designated to assist in set-up and take down of equipment needed. Approval rests with the Borough Engineering/Facilities Director, District Maintenance and Operations Director and the City Parks and Recreation Director, or their designee. After the initial approval is granted, each party must provide the other with at least one week's advance notice, whenever possible, prior to commencement of or change in the schedule of the approved activity. Once a party establishes its schedule, each must give the other at least one week's advance notice before changing their schedule. Use of District facilities by groups outside the realm of the Borough, City or District, at times other than during regular school hours, will be scheduled by the District Community Schools Supervisor after notification and review with affected City and District staff. IX. CHANGES IN POLICY, BUDGET OR ORGANIZATION: When the Borough, City or District contemplates a change in policy, budget or organization that could impact the joint -use access, each party will consult with the other parties, with sufficient notice, so each party can analyze the impacts and plan for the change. X. DENIAL OF FACILITIES: The Borough, City and District reserve the right to deny the use of their facilities to groups and/or individuals. The Borough, City and District will designate individuals responsible to effect this denial. Specific rules will be posted in areas of use. Attention to the rules will be accomplished by each activity and as needed throughout the duration of the schedule. City of Kodiak, Kodiak Island Borough, and Kodiak Island Borough School District Joint Use Agreement 2018-2021 Page 283 of 329 Discuss The KIB Joint Use Agreement With The Kodiak Island Borough Schoo... AGENDA ITEM #2.d. XI. CITY OBLIGATION FOR DISTRICT FACILITIES the City's responsibility is restricted to public use of District facilities for those activities under the City's sponsorship. This means that the City will: A. Supervise all City staff and volunteers. B. Schedule all City programs and activities; coordinate with the Community Schools Office; C. Provide pool vacuuming, filtration and chemical upkeep; D. Provide for safe storage and handling of all items used daily, including hazardous chemicals; E. Ensure that all scheduled activities will conclude by 10:30 p.m. and provide for policing of area used at end of each activity; F. Provide trained, qualified personnel for supervision of all City recreation activities and ensure that City participants have vacated District facilities prior to supervisor's conclusion of duties. Provide lifeguard personnel with lifeguard certificate. G. Provide advanced notification of supply needs, e.g. pool chemicals. H. The City will inform the District, and the District will inform the City of any known equipment or items that are not functioning properly; I. The City will schedule and provide lawn mowing during the summer months as needed for East Elementary, Main Elementary, North Star Elementary, Peterson Elementary, Kodiak Middle School, and Kodiak High School XII. CITY OBLIGATION FOR BOROUGH FACILITIES—The City's responsibility for use of Borough facilities is to manage, maintain and operate said facilities as if they were City facilities. This means that the City will: A. Maintain the playing surfaces of Borough fields to include mowing, dragging, lining and other basic maintenance procedures; B. Do limited maintenance on fences, buildings, bleachers, goal posts, bases and other amenities and support structures; C. Schedule the use of facilities to ensure appropriate maximum use and benefit by the community. XIII. DISTRICT OBLIGATION—the District will: A. Provide heat, light, power, chemical supplies and equipment, and water necessary for both District and City use; B.B. Pr ' e all major me C. Provide proper and safe storage area for the inventory of pool chemicals; D. Provide all building maintenance including required maintenance to ensure individual health and safety in the gyms and supporting facilities; E. Provide all custodial services. XIV. BOROUGH OBLIGATION—the Borough will: A. Provide necessary maintenance in addition to section XIII A and B to ensure individual health and safety on the fields and supporting facilities; City of Kodiak, Kodiak Island Borough, and Kodiak Island Borough School District Joint Use Agreement 2018-2021 Page 284 of 329 Discuss The KIB Joint Use Agreement With The Kodiak Island Borough Schoo... AGENDA ITEM #2.d. B. Include the City in the planning and design stages of Borough and District facilities, which are or could be subject to this Agreement. XV. ACCESS TO STORAGE: Wherever possible, each agency shall make available storage space on site for joint -use program equipment and supplies. XVI. FEES: All fees charged for participation in one party's programs in another party's facility belong to the party sponsoring program, not to the party that owns the facility: XVII. COOPERATIVE CAPITAL DEVELOPMENT FINANCING: The Borough, City and District will cooperatively plan development at appropriate joint -use sites or facilities, exploring whenever possible avenues for blending fund sources and resources to accomplish mutual goals. Where possible, the three parties will work together to use other public and private financing opportunities to accomplish mutual objectives and to develop facilities with standards sufficient to meet the programming requirements of all three parties. XVIII. INTERAGENCY TRAINING: The Borough, City and District shall conduct annual training and orientation programs for key personnel involved in implementing this Agreement; including school principals, coaches, teachers, secretaries and custodians. Topics to be covered include the history and purpose of this Joint Use Agreement, benefits to students/families and community residents, specific provisions established by this Agreement and key implementation procedures. XIX. LIABILITY INSURANCE: The Borough, City and District shall, at all times, maintain and keep in effect liability insurance with limits not less than $1,000,000 per occurrence and/or aggregate combined single limit, personal injury, bodily injury and property damage, naming each subsequent party as an additional insured. The Borough, City and District will provide upon request, a copy of the required Certificate of Insurance and provide thirty (30) days written notice prior to cancellation of insurance policy. XX. INDEMNIFICATION: The Borough, City and District shall, to the fullest extent permitted by law, defend, indemnify and hold harmless each other, including each others elected and appointed officials, employees, and volunteers against any and all liabilities, claims, demands, lawsuits, or losses including costs and reasonable attorney fees incurred in defense thereof, arising out of or in any way connected or associated with this Agreement. XXI. PROPERTY DAMAGE: The Borough, City and District will reimburse each other for damage to the other's facilities due to negligence or acts of employees or persons using the facilities during times that said facilities are subject to the exclusive use of the Borough, City or District. Nothing herein contained shall be construed to obligate the Borough, City or District to make repairs for damage due to ordinary wear and tear. City of Kodiak, Kodiak Island Borough, and Kodiak Island Borough School District Joint Use Agreement 2018-2021 Page 285 of 329 Discuss The KIB Joint Use Agreement With The Kodiak Island Borough Schoo... City of Kodiak Kodiak Is"d Borough City Manager to g Ifanaager Date Date lGA h a114V11111 5 y,-Attest/City Clerkio-11 I /B-- .— Clerk Date City of Kodiak, Kodiak Island Borough, and Kodiak Island Borough School District Joint Use Agreement 2018-2021 AGENDA ITEM #2.d. K. I. B. School District S"cl��t Superintendent &V40 i Dat Scho/ol Board Pr siden I C� /n (o5 Date School Boa—rd Clerk Date Page 286 of 329 Discuss The KIB Joint Use Agreement With The Kodiak Island Borough Schoo... AGENDA ITEM #2.d. Updated Agreement for 11/1/24 - 6/30/2027 City of Kodiak<„ ' Kodiak Island Borough ! = I JJ � •. iYo:>,a.c�r.-.� le:r.xr 710 Mill Bay Road 'P y 710 Mill Bay Road, Kodiak, AK 99615 Kodiak, AK 99615 Kodiak Island Borough School District ci A 722 Mill Bay Road, Kodiak, AK 99165 JOINT AGREEMENT FOR THE USE AND OPERATION OF CITY OF KODIAK, KODIAK ISLAND BOROUGH AND KODIAK ISLAND BOROUGH SCHOOL DISTRICT FACILITIES Between CITY of KODIAK, KODIAK ISLAND BOROUGH and KODIAK ISLAND BOROUGH SCHOOL DISTRICT This Agreement entered into this 23rd day of September 2024, by and between the CITY OF KODIAK, hereinafter referred to as the "City," the KODIAK ISLAND BOROUGH, hereinafter referred to as the "Borough," and the KODIAK ISLAND BOROUGH SCHOOL DISTRICT, hereinafter referred to as the "District." PREAMBLE Since the completion of Baranof Park in 1973, the Kodiak Island Borough (Borough), the City of Kodiak (City), and the Kodiak Island Borough School District (District) have pooled their resources to meet continuous youth and community demands for developmental and recreational opportunities. The Borough, City and District have cooperated in planning and jointly using their separately owned facilities and grounds for the benefit of students, community members and visitors. The Borough/City/District partnership has effectively maximized the use of their respective facilities to meet community and student needs, beyond what each could do alone. In addition to creating more opportunities for their respective constituent groups, sharing facilities has led to greater efficiencies in cost and operations. The Borough, City, and District acknowledge the value of their collaboration and seek to extend their working relationship. To maximize the use of their facilities for the benefit of the community, the three parties will continue to provide priority access to each other, continue to equitably share their resources, and continue to give priority to programs that benefit Kodiak youth and the community as a whole. Additionally, the Borough, City, and District believe that they can best accomplish their objectives and, at the same time, encourage other community-based recreational activities by forming a cooperative partnership involving the Borough, City, and District. All three parties support the goal of increasing community access and use of Borough, City and District facilities and grounds. Now, Therefore, in consideration of the foregoing, the parties agree as follows: VISION STATEMENT: All public facilities and grounds, owned by the Borough, City, and District, shall benefit and be available to Kodiak children, adults, and families to the maximum extent possible. The Borough, City, and District have mutual interests in helping young people learn and develop recreation skills and in providing City of Kodiak, Kodiak Island Borough, and Page 1 of 7 Kodiak Island Borough School District Joint Use Agreement 2024-2027 Page 287 of 329 Discuss The KIB Joint Use Agreement With The Kodiak Island Borough Schoo... AGENDA ITEM #2.d. opportunities for people of all ages to participate in recreation activities. It is incumbent upon the Borough, City, and District to develop a unified approach to serving the community's recreation needs and to cooperatively maintain Borough, City, and District facilities and grounds in order to foster community learning and vitality. I. PURPOSE OF THE AGREEMENT: This Agreement is intended to enhance and not interfere with the primary mission of Borough, City, and District governance. In establishing this Agreement, the Borough, City and District seek to: A. Effectively and efficiently manage the use of Borough, City, and District facilities and grounds for the benefit of Kodiak's youth and citizens; B. Encourage joint use of their respective facilities and grounds and give priority usage, after the owning agency's programming and/or on-going community obligations are met, to the requests submitted by the other party; C. Provide facilities and grounds usable for Borough, City and District programs; D. Establish procedures to encourage cooperative working relationships between Borough, City, and District personnel at all levels and to quickly resolve issues; E. Encourage joint and cooperative ventures, including facility maintenance and development. II. TERMS: This Agreement shall be effective for a term of thirty-two (32) months. The Agreement commencing on November 1, 2024, and ending June 30, 2027. The agreement may continue as a month-to-month agreement by written consent by all parties. The agreement may be terminated at the end of the fiscal year by any of the three parties with a minimum 90 day written notice to all parties. III. PROGRAM: Borough, City, and District program and facility offerings should be complementary and supportive and issues should be resolved in an equitable process with the overall mission in consideration. Joint planning, reporting and evaluation are necessary to achieve this end. IV. FACILITIES: District facilities subject to this Agreement, include the community pool, gyms (high school, middle school, blain Elementary, East Elementary and North Star), locker rooms, and specifically designated classrooms and other areas together with a limited amount of office and storage space. Borough facilities, subject to this Agreement, include the paved bike/walking path from Benny Benson to Abercrombie Park, two fields at Woody Way, the Dark Lake Field, East Elementary Field, and Coon Field. City facilities subject to this Agreement, include the Baranof Park track, football field, baseball field and ice rink, East Addition Park softball field, Teen Center, and other City parks and recreation facilities. V. ISSUANCE OF FACILITY KEYS: Keys shall be issued, or other means of access provided, for curriculum/program events and activities approved under this Agreement. Issuance of keys to agency personnel for use of another agency's facilities shall be limited to those necessary to implement this Agreement. All agencies agree to not duplicate keys issued by another agency. City of Kodiak, Kodiak Island Borough, and Kodiak Island Borough School District Joint Use Agreement 2024-2027 Discuss The KIB Joint Use Agreement With The Kodiak Island Borough Schoo... Page 2 of 7 Page 288 of 329 AGENDA ITEM #2.d. VI. TIME PERIODS FOR SPECIFIC NEGOTIATED USE: A. Monday - Friday during the period of the regular school year, 7:30AM- 5:30PM; B. Monday - Friday during the period of the regular school year, 5:30PM - 7:30AM; C. Weekends, September through May, including extended school closures such as Thanksgiving, Winter Break, and Spring Break.; D. Summer, June 151— September I". VII. PRIORITY OF USE: Each agency will make its buildings and grounds available for use by the other agencies on a first priority basis after the scheduling requirements for its own programs have been met. A. School District Facilities: Priority of use is relative and reflects the intended primary use of the facilities for educational purposes and the secondary use of community service for recreation, education, and leisure -time activities. In the time period VI "A." the District shall have the exclusive right to use of District facilities. The District may share the space. In the time period VI `B.," joint use will be assumed with first priority given to District sponsored activities. In time period VI "C." and "D." the District and City will assume joint -use with mutual access. In the scheduling of space, the District will prioritize the City's needs first and then the needs of other community agencies or groups. The District will not retain the gym or pool for daily practice of District teams beyond 7:30PM. B. Borough Facilities: The Borough will regulate use of Borough facilities under the following guidelines: Priority of use is given to Borough needs. In the absence of Borough needs, the City shall have management authority over Borough facilities. C. City Facilities: The City will regulate use of City Facilities under the following guidelines: Priority of use is given to District interscholastic athletic practices and competition. In the time period VI "A.," the School District shall have preferential use of City Facilities. In other time periods the needs of City, District and community programs will be evaluated and access allocated according to the needs of each. VIII. SCHEDULING OF ACTIVITIES: Specific requests for use will be made party to party, and will include the following: person in charge, space desired, approximate number of participants, time, description of the activities involved, plan of supervision and control, and person(s) designated to assist in set-up and take down of equipment needed. Approval rests with the Borough Engineering/Facilities Director, District Maintenance and Operations Director, and the City Parks and Recreation Director, or their designee. After the initial approval is granted, each party must provide the other with at least one week's advance notice, whenever possible, prior to commencement of or change in the schedule of the approved activity. Once a party establishes its schedule, each must give the other at least one week's advance notice before changing their schedule. Use of District facilities by groups outside the realm of the Borough, City, or District, at times other than during City of Kodiak, Kodiak Island Borough, and Kodiak Island Borough School District Joint Use Agreement 2024-2027 Discuss The KIB Joint Use Agreement With The Kodiak Island Borough Schoo... Page 3 o/ 7 Page 289 of 329 AGENDA ITEM #2.d. regular school hours, will be scheduled by the District Community Schools Supervisor after notification and review with affected City, Borough, and District staff. IX. CHANGES IN POLICY, BUDGET, OR ORGANIZATION: When the Borough, City, or District contemplates a change in policy, budget, or organization that could impact the joint -use access, each party will consult with the other parties, with sufficient notice, so each party can analyze the impacts and plan for the change. X. DENIAL OF FACILITIES: The Borough, City, and District reserve the right to deny the use of their facilities for cause to groups and/or individuals. The Borough, City, and District will designate individuals responsible to enact this denial. Specific rules will be posted in areas of use. Attention to the rules will be accomplished by each activity and as needed throughout the duration of the schedule. XI. CITY OBLIGATION FOR DISTRICT FACILITIES: the City's responsibility is restricted to public use of District facilities for those activities under the City's sponsorship. This means that the City will: A. Supervise all City staff and volunteers. B. Schedule all City programs and activities; coordinate with the Community Schools Office; C. Provide pool vacuuming, filtration, and chemical upkeep; D. Provide for safe storage and handling of all items used daily, including hazardous chemicals; E. Ensure that all scheduled activities will conclude by 10:30 p.m. and provide for policing of area used at end of each activity; F. Provide trained, qualified personnel for supervision of all City recreation activities and ensure that City participants have vacated District facilities prior to supervisor's conclusion of duties. Provide lifeguard personnel with lifeguard certificate. G. Provide advanced notification of supply needs, e.g. pool chemicals. H.The City will inform the District, and the District will inform the City of any known equipment or items that are not functioning properly; I. The City will schedule and provide lawn mowing during the summer months as needed for East Elementary, Main Elementary, North Star Elementary, Peterson Elementary, Kodiak Middle School, and Kodiak High School XII. CITY OBLIGATION FOR BOROUGH FACILITIES—The City's responsibility for use of Borough facilities is to manage, maintain, and operate said facilities as if they were City facilities. This means that the City will: A. Maintain the playing surfaces of Borough fields to include mowing, dragging, lining and other basic maintenance procedures; City of Kodiak, Kodiak Island Borough, and Kodiak Island Borough School District Joint Use Agreement 2024-2027 Discuss The KIB Joint Use Agreement With The Kodiak Island Borough Schoo... Page 4 of 7 Page 290 of 329 AGENDA ITEM #2.d. B. Do limited maintenance on fences, buildings, bleachers, goal posts, bases and other amenities and support structures; C. Schedule the use of facilities to ensure appropriate maximum use and benefit by the community. XIII. DISTRICT OBLIGATION—the District will: A. Provide heat, light, power, chemical supplies and equipment, and water necessary for both District and City use; B. Provide minor mechanical work; C. Provide proper and safe storage area for the inventory of pool chemicals; D. Provide all building maintenance including required maintenance to ensure individual health and safety in the gyms and supporting facilities; E. Provide all custodial services. XIV. BOROUGH OBLIGATION—the Borough will: A. Provide necessary maintenance in addition to section XIII A and B to ensure individual health and safety on the fields and supporting facilities; B. Include the City in the planning and design stages of Borough and District facilities, which are or could be subject to this Agreement. XV. ACCESS TO STORAGE: Wherever possible, each agency shall make available storage space on site for joint -use program equipment and supplies. XVI. FEES: All fees charged for participation in one party's programs in another party's facility belong to the party sponsoring program, not to the party that owns the facility. XVII. COOPERATIVE CAPITAL DEVELOPMENT FINANCING: The Borough, City and District will cooperatively plan development at appropriate joint -use sites or facilities, exploring whenever possible avenues for blending fund sources and resources to accomplish mutual goals. Where possible, the three parties will work together to use other public and private financing opportunities to accomplish mutual objectives and to develop facilities with standards sufficient to meet the programming requirements of all three parties. XVIII. INTERAGENCY TRAINING: The Borough, City, and District shall conduct ongoing training and orientation programs for key personnel involved in implementing this Agreement; including school principals, coaches, teachers, secretaries, maintenance technicians, and custodians. Topics to be covered include the history and purpose of this Joint Use Agreement, benefits to students/families and community residents, specific provisions established by this Agreement and key implementation procedures. XIX. LIABILITY INSURANCE: The Borough, City, and District shall, at all times, maintain and keep in effect liability insurance with limits not less than $1,000,000 per occurrence and/or aggregate combined single limit, personal injury, bodily injury and property damage, naming each subsequent party as an additional insured. City of Kodiak, Kodiak Island Borough, and Kodiak Island Borough School District Joint Use Agreement 2024-2027 Discuss The KIB Joint Use Agreement With The Kodiak Island Borough Schoo... Page 5 of 7 Page 291 of 329 AGENDA ITEM #2.d. The Borough, City and District will provide upon request, a copy of the required Certificate of Insurance and provide thirty (30) days written notice prior to cancellation of insurance policy. XX. INDEMNIFICATION: The Borough, City, and District shall, to the fullest extent permitted by law, defend, indemnify, and hold harmless each other, including each other's elected and appointed officials, employees, and volunteers against any and all liabilities, claims, demands, lawsuits, or losses including costs and reasonable attorney fees incurred in defense thereof, arising out of or in any way connected or associated with this Agreement. XXI. PROPERTY DAMAGE: The Borough, City, and District will reimburse each other for damage to the other's facilities due to negligence or acts of employees or persons involved with sponsored activities hosted in facilities during times that said facilities are subject to the exclusive use of the Borough, City or District. Nothing herein contained shall be construed to obligate the Borough, City or District to make repairs for damage due to ordinary wear and tear. City of Kodiak, Kodiak Island Borough, and Kodiak Island Borough School District Joint Use Agreement 2024-2027 Discuss The KIB Joint Use Agreement With The Kodiak Island Borough Schoo... Page 6 of 7 Page 292 of 329 City of Kodiak City Manager Date Attest/City Clerk Date Kodiak Island Borough Borough Manager Date Attest/Borough Clerk AGENDA ITEM #2.d. K. I. B. School District Sch of S perintendent 9/`J/Awf Date Schoo oard President Date ate ayv S h of Board Clerk 9 d2� ao2�l Date City of Kodiak, Kodiak Island Borough, and Kodiak Island Borough School District Joint Use Agreement 2024-2027 Page 7 of 7 Page 293 of 329 Discuss The KIB Joint Use Agreement With The Kodiak Island Borough Schoo... Kodiak Island Borough OFFICE of the MANAGER 710 Mill Bay Road Kodiak, Alaska 99615 a&YA Phone (907) 486-9301 TO: Kodiak Island Borough Assembly FROM: Aimee Williams, Borough Manager RE: Manager's Report, October 10, 2024 Manager's Department Kodiak College - Mayor Arndt and I attended a presentation from Kodiak College staff on Monday. We learned about different programs, community education initiatives, and facility updates. Fisheries Debate - Attended the debate and pre -debate social at Kodiak Hana. Assembly Member Whiteside and I were able to talk to Representative Peltola about getting some help from one of her staff members located in Sitka. Providence Kodiak Island Medical Center - Attended a meeting with some executive level folks in their regulations team to talk about inspections and regulatory issues with our hospital. KIB is in a support role in these issues and is nothing has been asked of us at this time. 65% drawings of the affected system will be ready to go to the ARB at their next meeting. Reconsideration — Held a meeting to discuss one of our exemption reconsiderations for Tax Year 2024. Met with business leader to discuss options moving forward. Results will be provided to the Assembly at next week's regular meeting. AML Annual Conference — • Registration is now open for the December 11th —13th conference. • Open board seats include — o Director, District 2 — Kodiak / PWS o Director, Boroughs o NACo Representative Current Recruitments — • Associate Planner Page 294 of 329 NDA ITEM #44 Community Development Plan 2045 — In addition to the meeting -in -a -box exercise for groups to participate in the comprehensive plan visioning process, staff has created a short online visioning exercise survey like the exercise conducted during the in-person meetings in September. This survey allows individuals to participate in the comprehensive plan visioning process. The survey can be found at https://www.kodiakak.us/759/Plan-2045. Planning and Zoning Commission — The Planning and Zoning Commission held a work session on October 9, 2024. The work session focused on the rewrite of Chapter 17.205 KIBC, which is related to rezones and code amendments. A public hearing for this item will be held at next week's regular meeting. In addition, the Commission received training from the American Planning Association on managing planning commission meetings and the Commission discussed issues with Title 17 related to definitions. Parks and Recreation Committee — The Parks and Recreation Committee met on October 8, 2024. The committee completed its discussion of a parks and recreation survey. Staff will revise the survey before publishing it on the borough website later in October. Associate Planner Position — The open associate planner position with the Community Development Department has been posted to the borough website and on job listings from AML, the American Planning Association, Western Planner, and other job websites. Assessing- Field ssessing Field Work — Assessing staff will be doing in-person field inspections in Monashka, Bells Flats, Chiniak, and Pasagshak. Properties seen as of October 8, 2024 - 931 Senior Citizen / Disable Veteran exemptions — Four applicants remain to be determined by the PFD and will be processed when the information becomes available. Village travel dates for SC/DV exemptions: • Akhiok, Karluk, & Larsen Bay - Nov. 18, (Back up Nov. 19) • Old Harbor — Nov. 21 (Back up- Jan. 7) • Ouzinkie — Nov. 22 (Back up- Jan. 8) • Port Lions — Nov. 25 (Back up- Jan. 9) Please call Seema if you want to come along and I will get you the information for Nova to get your travel paperwork. 2 Page 295 of 329 Exemptions — • One new exemption application was processed and sent out today. They have thirty days to appeal. • One applicant participated in a reconsideration on 9/24/24, KIB has until 10/24/2024 to respond. • One applicant has received their reconsideration letter and has 30 days to either appeal to the Assembly acting in a Board of Equalization role or take it to Superior Court if they don't agree with the decision. Their period ends on October 12, 2024. • Five courtesy letters were mailed to current exemption holders due to Assessing becoming aware of changed use in all or a portion of their properties. All five have been notified to complete the exemption application and deliver to the KIB Assessors office by the January 15, 2025, deadline or risk losing the exemption. Three of the five have responded to our letter and are complying with the reapplication. Tyler Conversion — Assessing continues to run queries for cleanup and is preparing for file transfer. Apex Sketch software is being downloaded onto computers by IT, Assessing and IT will be contacting Apex to see if they can convert our sketches. If they cannot, Assessing will have to redraw all sketches. Engineering and Facilities Borough Office Lift Station Issues - KIB staff are currently addressing an issue with the KIB main building lift station, which continues to impact both KIB and City of Kodiak staff. Due to concerns regarding hazardous materials such as asbestos, we opted to conduct sampling in the area where the repair work will take place. Although the sample results returned negative, KIB staff have determined that it is in the best interest of our maintenance workers and contractors to proceed with encapsulating the crawlspace adjacent to the sewage lift station. This work was completed on October 9th and will greatly reduce the health and safety risks associated with working in that space. KIB staff also worked with the A&E firms to resize the pumps, as the original ones were oversized for the old dormitory. Replacement pumps and controllers have been sourced, and KIB staff is diligently working with local contractors to confirm their suitability for installation. Once the pumps and associated appurtenances are verified by the local contractors and building code official, they will be ordered and scheduled for replacement. Borough Building Boiler Installation — • Pipe insulation is continuing. Generator has received it long duration load bank initial run. Technician has removed several components of the transfer switch. He is recommending replacement of several parts. Digital Controls should be Page 296 of 329 updated this month. KIB staff has processed a PO for the licensing renewal and software upgrade to allow for better access and control remotely in the future. • Remaining work has been discussed with the prime contractor including control work, insulation, exterior finish, and final inspection. KFRC — • Fall carpet cleaning has been scheduled for the weekend of October 12th with our janitorial contractor. Once that has been completed staff will schedule the fall hard surface flooring cleaning and wax coating to help protect it during the winter foot traffic. • The apartment sewage lift station project has been further delayed. New bases, pipe guides and pumps have been installed and are operating in manual/hand mode only. Staff is investigating if this is a control or possible float issue. • A DPX pump representative came to the site to work with KIB staff on the installation of a new motor for seawater pump #4. These pumps provide the water needed for the lab tenants. • GSA representative has stated the revised contract amount for required water testing will be completed soon. The due date for sampling and receipt of data will be extended to reflect the delay. • Minimal upgrades are required due to fire and safety inspection. Protection of the elevated dock edge, installation of fire extinguisher signs are required. • GSA representative has discussed the requirement to meet to discuss the current lease and utility use. GSA must look at if lease payments are covering the costs of operating the systems that are directly utilized by NOAA. • Additional electrical circuits have been priced for GSA consideration to accommodate additional chillers for NOAA. Project to be funded on the next fiscal year's budget. • In accordance with our lease agreement, KIB staff sourced radon tests, at no cost to KIB, which have been installed around the lower level of the KFRC building. These tests will be collected in a few weeks and shipped back to the lab for analysis. Landfill — • ADEC Solid Waste Inspection score sheet has not been provided to date. Anticipate a good overall evaluation due to comments made by the regulators during the inspection. • Electric fence maintenance work is continuing. ADF&G has been on-site to help identify issues and solutions to improve the electric fence. They have also offered to provide training in specific bear hazing techniques for staff. • Staff is continuing to investigate the Compliance Order by Consent (COBC) associated with the storm water violations. • Baler building concrete floor contract and schedules are set. Anticipate a late October work time due to mix design testing requirements. Anticipate late October pour to occur during baler shut down. Fly ash mix required by the specification will be placed. 4 Page 297 of 329 Baler Facility has closed on September 25. Staff anticipates the baler to be of service for possibly 8 weeks for a major rebuild. A dumpster has been provided for residential customers that bring waste to the Landfill. Commercial hauler will be loose filling at the current landfill operating face. Staff is working with the Denali Commission to continue the award process for the Regional Solid Waste Management Planning Grant. The Denali Commission approved the KIB and KANA joint request for up to $500,000. There has been an increase in bear activity at roll off container locations. Reminder to residents to CLOSE the doors when done disposing of their trash. Leachate Treatment Plant — • Staff received a response from ADEC regarding the request to reseed and/or add additional microbes to the system to aid the biological process. Both options are being discussed to determine which would be the most beneficial. • Staff has received and is testing three alternate polymer samples. First sample appears to not improve the flocculant reaction. • Pretreatment Upgrade Project — Contractor is scheduled to be in town October 21 st. Pump switch out to occur along with punch list items. KIBSD — Peterson School Roof — • The contractor is waiting for additional metal for the completion of the required flashing and parapet coverings. The expected arrival date is tomorrow, October 11 to • Final inspection was originally anticipated for October 14th by a Johns Manville inspector. However, that inspector departed Johns Manville rather abruptly, and the new inspector could not be scheduled until Monday, October 21 st. This has necessitated a no -cost contract extension of five (5) days. The new final completion date for the project is October 25th. Snow Removal and Ice Control — Staff has advertised for Snow and Ice Control contract for Bayview and Monashka Bay Service Areas, with an anticipated award at the November 7th Regular Assembly meeting. Staff has advertised the KIB Facilities Snow and Ice Control contract and that is anticipated with an anticipated award on November 21 st Regular Assembly meeting. PKIMC — Air Handling Unit 1 (AHU1) Failure — On October 9, 2024, the PKIMC maintenance staff were performing annual fire alarm testing with Taylor Fire. The test for AHU1 was to close the dampers and shut down AHU1 motor. During the test the dampers closed but the motor did not shut down causing the air chamber to become pressurized and caused the wall panels to blow out. PKIMC Staff called to notify KIB of what happened and the work they planned to perform to fix the issue. Repairs were completed and Page 298 of 329 secondary tests were performed. PKIMC Facilities believes that a relay failed either in the fire alarm fan shutdown or inside the VFD. Facilities will test the relay in the fan shutdown and research a way to relay the VFD to determine which one failed. Finance Department Property Taxes — Deadline for full payments, and those who did not make the first half payment by August 15th, is this Tuesday, October 15th. There will be a 10% penalty for paying on or after October 16th . For those that made a timely first half payment, the remaining half payment is due on or before November 15thto avoid additional penalties and interest. FY2024 Audit — Staff is answering follow-up questions this week. Property Assessment and Taxation Implementation Project — Staff is continuing to meet regularly with Tyler to work on reviewing mapping requirements. As specific data mapping is completed, limited data exports have enabled staff to view data in the test environment. Current mapping results are focused on assessing data. Staff is continuing to work on data cleanup and verification. Go -live date is expected to be June 25, 2025. Information Technology Security - 1 . Security Audit — a. Project timeline: i. Client Assistance Responses Due — Friday, September 27th - Completed. ii. Fieldwork - Offsite — Monday, October 7 — Friday, November 8th 1. We have connected the Consultant laptop to our network and its currently scanning our network and systems. iii. Draft Management Report — Friday, November 15th iv. Remediation Roadmap — TBD 2. IT is implementing two factor authentication in our Microsoft 365 environment, starting with management, then department by department. a. 8 users remaining to get 2fA - all out at the landfill. Jena is due to discuss this with them as they have been busy with projects. Hardware - 1. Assembly laptops are available for pickup. Need to meet with them individually to migrate files and settings. Three laptops remaining to be deployed. (LeDoux, Griffin, and Johnson) 2. Working with E&F at the LTP to upgrade their Rockwell Automation SCADA monitoring pc equipment. Page 299 of 329 3. IT is applying asset tags to our IT assets. Software — 1. Laserfiche software upgrade a. IT is testing upgrades in test sandbox. 2. Laserfiche a. IT is also working with the Deputy Clerk: L Date formats and data field updates. ii. Record schedule updates for all departments. iii. Workflow creation and updating existing workflows. iv. Training of KIB staff on using Laserfiche. GIS - 1. Travis has taken over the Parks & Recs 123 Survey from Joe Grochmal. Draft a. Survey has been completed; IT is working with Community Development on url formatting. 2. Working with Assessing on Karluk addresses Reminders for Budget Discussions for FY26 1. Non-profit use of opioid settlement funds 2. Accommodations tax — Breakdown / Amount in Fund / Regulations about using those funds Page 300 of 329 ELECTIONS UPDATE ✓ The election contest period will end on Monday, October 27. ✓ Election follow-up/tasks after the election include the following: • Scheduling an orientation for newly elected. The newly elected orientation manual is available in iCompass for everyone. • Monitoring APOC financial disclosure forms. • Sending out certificates of election to newly elected officials. • Sending out Thank You letters for those whose terms have expired. • Prepared the initiative, referendum, and recall forms. • Scheduling picture taking for newly elected officials. • Updating Assembly and service area rosters and the website. • Preparing laptops, email set-up, usernames for iCompass, business cards, name plates, roll call sheets, etc. ✓ After the election contest period, staff will send all precinct registers, absentee -by -mail registers, questioned ballot registers, and personal representative registers to the State to update voter registration information. ✓ The General Election will be held on Tuesday, November 5. For those who are leaving town, absentee voting will start at 10 a.m. on Monday, October 14 here in the Assembly Chambers. RECORDS UPDATE ✓ Implemented the new code allowing Records Extension for those records deemed to have administrative value. ✓ Contracts destruction list was distributed to Departments with a return by October 31 date. ✓ There are no outstanding records requests. ASSEMBLY AGENDA ITEM REQUESTS ✓ See tracking spreadsheet attached. FY2025 BUDGETS AS OF SEPTEMBER 30, 2024 ✓ Legislative Budget — FY2025 at 31 % ✓ Clerk's Office Budget — FY2025 at 26% Page 1 of 4 Page 301 of 329 OCTOBER 10, 2024 LEAVE — We have a couple of Assembly members already planned to be out the next few weeks. Please keep me in the loop if you are planning to take time off so we can predetermine quorum for upcoming meetings. Reporting KIBC 2.25.070 No member of the Assembly may absent himself from any regular or special meetings of the assembly except for good cause. An assembly member who is unable to attend a meeting SHALL ADVISE THE CLERK OR THE Absences 11 MAYOR of the contemplated absence. BOARD APPLICATIONS ✓ Kimberly Olson and Judith M. Phillips, Solid Waste Advisory Board (Pending) ✓ Joseph P. Delgado, Planning and Zoning City Seat (no current vacancy on the board) ✓ Notice of Vacancies -Applications are being accepted for the following Board, Committee, and Commission seats that are currently vacant: o Architectural and Engineering Review Board/Building Code Board of Appeals - 1 seat o Citizens Board of Equalization - 1 Alternate Seat o Kodiak Fisheries Development Association - Borough Appointees - Crab Harvester - 1 Seat o Parks and Recreation Committee - 1 Seat o Solid Waste Advisory Board - 1 At Large Seat and 1 Retail Business Representative Seat o Service Area Boards ■ Bayview Service Area Board - 2 Seats • Monashka Bay Road Service Area - 3 Seats ■ Woodland Acres Streetlight Service Area Board - 3 Seats STAFF TRAINING ✓ Quarterly Safety Training for Borough Employees ✓ October 14-16, ARMA InfoCon 2024, Records Management Training Attendee:Deputy Clerk ✓ December 7-11, Alaska Association of Municipal Clerks Conference Attendees: Clerk, Deputy Clerk, and Assistant Clerk Page 2 of 4 Page 302 of 329 GENDA ITEM #5.a. OCTOBER 10, 2024 MISCELLANEOUS ✓ Liquor Licenses o B&B Renewal o Island Hotels — transfer of location ✓ Clerk working with the attorney on revising the liquor licenses ordinance. ✓ Sixteen (16) liquor licenses are being reviewed as they enter biennial license period. Once we are done with our investigation, we will present those that the Borough may need to lodge a protest for the continued operation of a license. Per Borough code, we will be advertising the seats that will become available at the end of this year. Additionally, we will send each current incumbent member an application along with a letter informing them that their term is about to end. •` Election for the Deputy Presiding Officer seat will be on the November 7 agenda. KIBC 2.30.040 Organization and deputy presiding officer. A. Organization. The assembly shall annually, at the November meeting, elect from its members a deputy presiding officer to serve at the assembly's pleasure. KIBC 2.25.050 Deputy presiding officer. The assembly shall elect from among its members a deputy presiding officer, as specified in KIBC 2.30.040(A), to act as the chair in the absence of the mayor to conduct the meetings and see that the rules are observed. If the deputy presiding officer is not present or disqualifies himself, the senior assembly member present shall act as the chair. When a member of the assembly is acting as the chair, the member retains all privileges otherwise held as a member of the assembly. The Appointment of Assembly Representatives to Boards & Commission was emailed to you and it is also attached to this report. They are due back to me by Wednesday, October 23. UPCOMING MEETINGS ✓ October 10, Work Session ✓ October 17, Regular Meeting ✓ October 31, Work Session ✓ November 7, Regular Meeting ✓ Joint Work Session, To be scheduled PLEASE ADVISE ASAP IF YOU WISH TO TRAVEL TO THE ANNUAL AML CONFERENCE IN DECEMBER. Page 3 of 4 Page 303 of 329 AngwnA Ir97nn III; MISCELLANEOUS EVENTS/CALENDAR Dates Events Location Description 60 days deadline 2024 Comments October 24.25 CIRCAC Board Meeting Kenai November 5 Prince William Sound RCAC December 5.6 CIRCAC Advisory Council Board Meeting Anchorage December 9-13 Annual AML Local Government Conference Anchorage 21 2025 9/19/2024 Janus 23.24 Prince William Sound RCAC Board Meeting Anchorage February 18.20 2025 AML Winter Legislative Conference Juneau February 2025 Federal Lobbying For Assembly Discussion March 1.4 2025 NACo Legislative Conference Washington, D.C. March 2025 Southwest Alaska Municipal Conference Anchorage April 2025 AML Spring Conference Anchorage May 1.2 Prince William Sound RCAC Board Meeting Valdez May 21.23 NACo WIR Conference Rapid Ci S.D. Jul 11.14 2025 NACo Annual Conference & Exposition Philadelphia, PA Se tember 18.19 AML Summer Board meeting Cordova TRACKING FOR AGENDA ITEM REQUEST FORMS Trackinq for Agenda Item Request Forms No. Requestor Submitted on Description 60 days deadline Scheduled on Comments Pending recommendation from ARB. Sent to Engineering Staff the day it 13 Code Change - Real and Personal Property - Revision to KIBC 2.125.030 - ARB Code 21 Tumer/Ames 9/19/2024 KIBC 3.35.030 A.6 11/8/2024 Sharratt 2/1/2024 18 Sharratt 7/25/2024 Policy Decisions on Old Mental Health Buildings 9/23/2024 09/26/2024 10 Initial draft received from the 17 Removal Contracts Ordinance Preparation/Legal Opinion Changes to Placehoider - Attorney Being reviewed by the Sharratt AmdUSharratt 6/25/2024 Liquor Licenses Code 8/2_4/2024 08/01 Clerk Pending until after the a/echos IMII continue to come up as a 14 Solid Waste Advisory Board should Investment Strategy Waived by Sharratt discussion Review draft ordinance Transfer Stations & Requirements for recycling Griffin 6/6/2024 Preferred meeting date. 09+12/24 1 requestor 09/12/24 on November 14 ORDINANCE NO. FY2024-17 ADOPTED ON MAY 16.2024 Page 4 of 4 Page 304 of 329 Pending recommendation from ARB. Sent to Engineering Staff the day it 13 Revision to KIBC 2.125.030 - ARB Code was received, on January 23 and Sharratt 2/1/2024 Revisions Service Area Road Maintenance & Snow again onlygy 14, 2024. 10 Griffin 8/21/2023 Removal Contracts 7 Sharratt 8/17/2023 Land Disposal with enhancement to local bu ers Solid Waste Advisory Board should 6 Sharratt 8/17/2023 Transfer Stations & Requirements for recycling 2/29/2024 take a look at this. Make it current and bring a recommendation back. 5 Sharratt 8/10/2023 Limiting Air B&B Rentals as Long Term Housing 2/29/2024Will continue to come up as a Solutions discussion 3 Sharratt 1 7/20/2023 10pening Borough owned lands to auction Page 4 of 4 Page 304 of 329 AGENDA ITEM #5.a. APPOINTMENT OF ASSEMBLY REPRESENTATIVES TO BOARDS & COMMISSIONS KIBC 2.100.030 Appointments. Members of boards, committees, and commissions, except for members of the board of adjustment, members of the board of equalization, and elected service area board members, are appointed by the mayor and confirmed by the assembly unless otherwise specifically provided elsewhere in this code. An appointment not confirmed by the assembly shall not become effective. Assembly Member: Return by Date: Thursday, October 23. # Board or Committee Assembly Rep (Mayor to fill out) L6 1112023-10/2024 11/2024-1012025 Architectural Review Board, KIBC 2.125 Sharratt Borough Lands Committee, KIBC 2.160 Turner a Two appointees "Mayor Smiley serves on this committee as well (D Emergency Services Council, Per KIBC 2.110 - Mayor is assigned to a seat 0 -o Joint Building Code Review Committee, KIBC 15.45 Turner Kodiak College Council LeDoux a� Kodiak Fisheries Work Group (Adhoc) Griffin/Whiteside U) CU Two Appointees plus one alternate LeDoux (alt) a) Kodiak Fisheries Advisory Committee, Res FY07-38 Whiteside 0 0 Parks and Recreation Committee, KIBC 2.120 LeDoux Q 0 o Providence Health System Service Area Board, KIBC Smiley > 8.05 CY School District Budget Advisory Committee Sharratt Y C 2 School District Facilities Review Committee Ames Ui a� U s School District Strategic Planning Committee Ames U Solid Waste Advisory Board, KIBC 2.145 Ames 0 Health Facilities Advisory Board , Resolution No. Griffin N FY2023-20 Smiley ti Turner CU Solid Waste Contract Committee, Resolution No. LeDoux FY2024-12 Smiley Turner Assembly Members are encouraged to indicate their desire for appointment to the following positions. The Assembly is responsible for appointing and confirming individuals to these seats/roles. There will be Borough financial commitment involved. Cook Inlet Regional Citizens Advisory Council Arndt is currently Three Year Term: April 2023 to March 2026 serving until March 2026 SWAMC Board Seat — Kodiak Municipal Seat, (New appointee will Griffin will serve until start after SWAMC March Annual Conference) March 2026 Prince William Sound Regional Citizens Advisory Council (Two Year Williams is currently Term: May 2024 to May 2026) serving until May 2026 Work Session Item on November 14 scheduled to discuss the following seats: . Up for election Alaska Municipal League Seats (MUST fill -out attached application) • Scott Arndt • Director Seat — Boroughs • NACo Representative — NACo Member Borough • Legislative Committee Seat Pacle 305 of 329 SOLID WAS r..ONTRACT WHAT YOU SHOULD KNOW: The Kodiak Island Borough would like to highlight a some of The mole important changes that have been made to the contract and Borough Code regarding Solid Waste Services. MANDATORY SPR`/Ir r - The Kodiak Island Borough Code 8.25.060 states. " eery owner of a premises or unit in the collection service area must subscribe to solid waste collection service for its premises or unit by the contract hauler at least weekly in carts, including bear carts, dumpsters, or roll -offs. as administered by the manager, even if that owner self -hauls all or a portion of its solid waste for disposal at the borough landfill." ITS Services are based on the quantity of solid waste generated at a unit, regardless if the unit is considered residential or commercial. UNIT means a whole building or any portion of a building which is designated for separate occupancy for commercial or residential purposes wh ch generates solid waste, SERVICE OPTIONS PER UNIT BY NUMBER OF UNITS 1N OR ON A PREMISES s v Self -Haul, Roll -Cart, or Container Appropriate for Solid Waste Generated ift 2-yard dumpster, or Container Appropriate for Solid Waste Generated or If applicable 4 roll carts - only available for 4 unit premises. v 2 -yard dumpster, or Container Appropriate for Solid Waste Generated No Roll -Cart Option. SERVICE OPTION DESCRIPTIONS - PER UNIT Residential Self -Haul customers may haul their 96 gallons of solid waste to a residential roll -off container or the Landfill. Commercial Self -Haul customers must haul their solid waste to the Landfill directly - Roll -cart service is equal to 96 gallons of solid waste bagged and placed in a bear resistant roll -cart to be collected by the contractor once per week. Commercial customers that qualify for roll -cart service will be charged at the residential roll -cart rate. Standard Dumpster service is equal to one 2 -yard dumpster. Customers who generate a larger solid waste stream may have up to an 8 -yard capacity dumpster or multiple dumpsters and be charged according to the fee schedule in the contract. Customers who require a 2 -yard dumpster that do not have sufficient roam at their premises or unit to accommodate the size of a dumpster may qualify to have four (4) roll -carts instead, but will be charged at the 2 -yard dumpster rate. The inforn atjon outfir,ed all-ju, e i., referenced frorn the- K:odick... Island Bcxough Contract FY201=.'-25— mendmenit 142 Resid'--niical crud C:.:_1mrn rcJa1 `_,slid Waste : e r,vi '—s C"ontrat and thy: k;odic7k 1—shard Burc:,ugh Code 8,2F, AGEN�A�' SOLID WASTE CONTRACT � V Wjk TIMELINE Timeline of the Solid Waste Contract progression and the current monthly fee at that time for a 96 -gallon roll -cart and one 2 -yard dumpster with once per week service. 1 / O 1 1 1 1 1 1 1 1 O 1 1 1 1 1 1 1 1 1 O 1 1 1 1 1 1 1 1 1 1 b 1 1 1 1 1 1 1 1 O 1 1 1 1 1 1 O 1 1 1 1 1 1 O CONTRACT M010-30 Contract Started Roll -Cart = $38.31 2 -Yard = $176.93 CONTRACT M010-30 Contract Extended to 2020 Roll -Cart = $73.69 2 -Yard = $312.15 REQUEST FOR PROPOSAL New Contract Signed July 2019. RFP Price for 2 -Yard = $312.15 Due to year delay for protest KIB allowed AK Waste to conduct Annual Adjustment for 2020 CONTRACT M019-25 Contract Started July 2020 Roll -Cart = $49.25 2 -Yard = $313.42 CONTRACT M019-25 Amendment #1 Approved Feb. 2021 Roll -Cart = $49.39 2 -Yard = $301.17 L2-Ya art = $49.90 rd = $321.91 CONTRACT M019-25 Begin Drafting Amendment #2 Roll -Cart = $48.72 2 -Yard = $326.09 Postponed Annual Adjustment for 2024 due to draft of Amendment #2 and the outcome for the clarifications of Customer and Customer Count. 2024 INTERPRETATION OF ORIGINAL CONTRACT CUSTOMER DEFINITION CONTRACT FY2019-25 without Amendment #2 Roll -Cart = $55.24 2 -Yard = $423.29 2024 CLARIFICATION OF CUSTOMER DEFINITION IN AMENDMENT #2 CONTRACT FY2019-25 with Amendment#2 Roll -Cart = $48.14 2 -Yard = $319.24 308 of 329 .IV V A � 1 Dumpster Prices from 2020 -2024 Page 309 of 329 2020 2021 2022 2023 2024 2 yard $ 313.42 $ 301.17 $ 321.91 $ 326.09 $ 423.29 2 yard 6 yard 3;29 21 9 .65 2020 2021 2022 2023 2024 Page 309 of 329 2020 1 2021 1 2022 1 2023 1 2024 6 yard $ 857.91 1 $ 824.38--1 $ 881.13 1 $ 892.59 $1,158.65 6 yard .65 .9 ..................................... 2020 2021 2022 2023 2024 Page 309 of 329 c A�D ITEM #8.a. ntract No FY20 f 111,11 Contractor Service Fee Surcharges for Services SHALL NOT EXCEED Activi Contractor Service Fee (per occurrence) On call Collection of Bulky Waste $20.00 per call (not item) plus Direct Cost Dumpster Size" 2 cubic yards 2.6 cubic yards of Disposal Distance Charge $3.50 per mile beyond United States Coast $243.41 Guard base _ ^ Rollout Service for Non -Eligible $7.36 Customers - Initial 30 feet or fraction 3.6 cubic yards Rollout Service for Non -Eligible $6.13 Customers - Each additional 30 feet $1151.84 Beginning 7 months after Collection $25.00 plus Direct Cost of Cart Commencement Date, replacement of $635.31 Cart in excess of once per calendar $1207.64 ear Bear lock for Customers in portion of 5 cubic yards _ Contractor to provide all bear resistant roll Contract Service Area not required to carts - No initial Customer Charge have bear locks _ Lock on dumpster $25.00 to install, no charge thereafter Collection of residential material that $6.87 does not fit in roll -cart $1999.10 Residential Roll -Off or Dumpster $5.00 Clean-up Costs $1281.63 oe*exvwined {v be %,Aj ere v►oi- used a cAert caul error. The -se pri c e.s �] c0vt+r•� si-o-+rwpm +V' ef& K ces ■ bir ov%e kip -_fir -_SGC 30 ronn t� b 4 n oP -I'h,+'s b "1 ►1G Q. VWV� 61%�d L 31p@'o. . (' w was de eer a,v�d M ` Contractor onthly Servic Fee for Dumpsters Dumpster Size" 2 cubic yards 2.6 cubic yards 1 156.07 $208.47 umber of Dum ters (Scheduled Tips Per Week) 3 4 5 312.157 $468.21 $624.28 _ $780.35 $4-1635--$625.41 $833.88 $1042.35 3 cubic yards $243.41 $486.81 $730.23 $973.64 $1217.05 3.6 cubic yards $287.96 $575.91 $863.88 $1151.84 $1439.80 4 cubic yards $317.66 $635.31 $952.98 $1207.64 $1588.30 5 cubic yards $372.43 $744.87 S11117.29 $1489.72 $1862.15 5.5 cubic yards 399.82 $799.64 $1199.46 $1599.28 $1999.10 6 cubic yards -- $427.21 $854.42 $1281.63 $1708.84 $2136.05 8 cubic yards t$544.36 $1088.73 $1633.08 $2177.44 $2721.80 'Contractor Service Fee for mu p Dumpsters is equal to the above scheduled amounts multialied by the number of Dumpsters 30 ronn t� b 4 n oP -I'h,+'s b "1 ►1G Q. VWV� 61%�d L 31p@'o. . (' w was de eer a,v�d M ` AGENDA ITEM #8.a. Memo To: Dave Conrad, Engineering and Facilities Director From: Scott A. Brandt -Erichsen, Borough Attorney5v f - cc: Aimee Williams, Borough Manager Date: September 11, 2024 Re: Charging tenant solid waste fees to owners I have been working with the EF Department staff over the past two months on development of amendments to Chapter 8.25 and amendments to the solid waste collection contact. The revisions are intended to improve clarity and to address a few issues which have generated concern for smooth operation of the waste collection service and recovery of payments for services provided. Among the issues discussed and addressed in the drafts is the question of liability of a property owner for a tenant's failure to pay for solid waste services provided. The current contract defines customer as the person subscribing for service from the contractor; defines commercial customer as the customer who owns or occupies a commercial premises; and residential customer as a customer who owns or occupies a residential premises. Thus, under the current contract, the contractor looks only to the customer who subscribes for service to make payment. The customer liability to the contractor is based on the subscription agreement, and the account is collected as a contractual liability between the subscribing customer and the Borough's collection contractor. If the account falls delinquent, and the tenant is insolvent or in circumstances where collection of the debt from the tenant is not reasonably possible, then the contractor takes the risk of loss, and does not have a contractual claim for collection of the tenant's debt from the landlord. The current code provisions do not focus on the occupant (tenant), but require the owner of premises to sign up for service (KIBC 8.25.060), and require the owner to pay for service (KIBC 8.25.060 and 8.25.090). This differs from the contract. If the owner is the one required under the contract to subscribe for service, then all services will be billed only to owners, and not to occupants or tenants. Whether to amend the contract to require owners of all premises to subscribe for service and be responsible for payment is a policy choice. In making this policy choice there are some practical considerations to take into account. These include: Page 311 of 329 AGENDA ITEM #8.a. The past practice has been to look to have occupants, whether owners or tenants, be responsible for the charges for services. Changing this practice to make owners solely responsible may meet with opposition by landlord owners. 2. If the tenant is the parry responsible for placing the waste out for disposal and complying with the restrictions on types of waste, volume, or other matters, then placing responsibility for payment of any charges on the owner rather than the tenant may reduce the motivation for the tenant to comply with the rules regarding waste disposal. 3. The tenant or occupant, rather than the owner, is more likely to be the party making a decision as to whether a larger capacity service is desired or required and whether to self -haul some or all waste. 4. If the tenant is responsible for the account and does not pay, making the owner responsible for any delinquency without notice to the owner of the delinquency, or imposing late fees without prior notice of amounts due, raises some fairness and due process concerns. 5. If the contractor is able to allow a tenant account to become seriously delinquent knowing that they can collect the debt, and late fees, from the owner, there is little incentive for the contractor to diligently and timely pursue collection from a tenant. Basically, the'p61icy choice involves balancing the natural incentives of the contractor, tenant, and owner to determine the most appropriate way to have the system operate smoothly, limiting disposal to appropriate waste and methods, providing appropriate service, and collecting appropriate fees. The draft ordinance and contract changes proposed seek to strike a balance where the owner is responsible for the premises being registered for service, but that registration may be by an authorized tenant. If it is by a tenant, but becomes delinquent by 90 days or more for residential accounts and 60 days or more for commercial accounts, the contractor can notify the owner of the delinquency and that the contractor will be looking to the owner for payment of any charges after the date of that notice. The owner would then be responsible for service charges accruing after the notice date. The contractor would bear the risk of non-payment, and the duty to collect from the tenant, for the 60 or 90 day period, or any additional time elapsed prior to giving notice to the owner. The contractor can mitigate that risk by requiring a security deposit and by promptly giving the owner notice of a delinquency. Currently, the contractor bears the risk of non-payment for any duration of delinquency. The reasoning behind this policy choice is that the owner should not be liable without prior notice, and the contractor should have incentive to seek to collect from delinquent tenants in a timely manner. The Assembly could choose to require that owners be solely responsible for all accounts, and eliminate tenant responsibility in the contract. If the Assembly wants to retain and apply the current language in KIBC 8.25.060 and 8.25.090 regarding owner/landlord responsibility to subscribe and pay for solid waste service, I suggest that the contract be amended to implement that policy. 2 Page 312 of 329 AGENDA ITEM #8.a. SOLID WASTE CONTRACT CURRENT CONTRACT VS PROPOSED UPDATES SERVICE BASED OFF OF THREE CATEGORIES • RESIDENTIAL • MULTI FAMILY • COMMERCIAL EXAMPLE SERVICE BASED OFF OF THE NUMBER OF UNITS THERE IS A BUILDING IN KODIAK THAT HAS 3 APARTMENTS AND 1 COMMERCIAL BUSINESS THIS BUILDING WOULD FALL UNDER THE COMMERCIAL CATEGORY DUE TO IT NOT MEETING THE RESIDENTIAL OR MULTIFAMILY DEFINITION. THE STANDARD OPTION FOR A COMMERCIAL PREMISE IS A 2 YARD DUMPSTER. HOWEVER A COMMERCIAL CUSTOMER WHICH REQUIRES ONE OR TWO 95 - GALLON ROLL CARTS PER WEEK MAY REQUEST AND RECEIVE A REDUCTION. THIS BUILDING HAS 4 UNITS (3 RESIDENTIAL AND 1 COMMERCIAL). THE STANDARD OPTION FOR A 4 UNIT BUILDING IS A 2 -YARD DUMPSTER OR A CONTAINER APPROPRIATE FOR THE SOLID WASTE GENERATED OR IF APPLICABLE 4 ROLL CARTS (ONLY AVAILABLE FOR 4 UNIT PREMISES) Page 313 of 329 AGENDA ITEM #8.a. Contract FY2019-25 Amendment #2 Summary of Changes by Section of Contract These changes provide more specific guidance on service provision, billing practices, and operational procedures, aiming to address current needs and clarify responsibilities for both the contractor and customers. • Added Amendment Recitals • Added footer with contract title, contract number, and page numbers. • Cleaned the table of contents. Removed sub headers from table and fixed page numbers. • Recitals (of original contract) SECTION 1: EXCLUSIVE CONTRACT No changes. SECTION 2: REPRESENTATIONS AND WARRANTIES No changes. SECTION 3: TERM OF CONTRACT General grammatical edits. SECTION 4: TRANSITION PLANNING No longer applicable. Removed the section, SECTION 5: GENERAL SCOPE OF CONTRACTOR DUITIES General grammatical edits. SECTION 6: SPECIFIC COLLECTION DUTIES General grammatical changes throughout section. Added new designation words, Account holder and Unit. • 6.01 Added updates clarifying mandatory services, added a violation clause, dispute resolution outline, and the processes of how to increase or decrease services. • 6.02 Clarified services for roll -carts • 6.03 Clarified general collection from dumpsters, residential roll -off container collection, and dumpster service options. • 6.04 Completely new section outlining Self -Haul. • 6.05 General grammatical edits. • 6.06 Emergency Services — no edits. • 6.07 Clarification of On -Call Temporary Dumpster service and outlined the fees associated with any violations. SECTION 7: DISPOSAL OF COLLECTED SOLID WASTE General grammatical edits. Page 314 of 329 AGENDA ITEM #8.a. Contract FY2019-25 Amendment #2 Summary of Changes by Section of Contract SECTION 8: FUTURE RECYCLING SERVIES PROGRAM General grammatical edits. SECTION 9: GENERAL OBLIGATIONS AND PERFORMANCE STANDARDS General grammatical changes throughout section. Added new designation words, Account holder and Unit. 9.03 Added clause that allows KIB to ask Contractor to re -attempt to resolve issues. 9.05 Defined Dumpster and Roll -Cart Contract Service Exceptions and Non - Collection Fees. 9.07 Updated title of section. 9.07 Made some additions for clean up procedures of litter, liquid leaks, and set - out sites. SECTION 10: RECORDKEEPING AND REPORTING 10.03.a Annual Reporting: changed the annual reporting date deadline from February 15 to April 30 to match with Annual Fee Adjustment. SECTION 11: CONTRACTOR SERVICE FEE AND SPECIAL SURCHARGES 11.01.c Residential Roll -Off Clean -Up Costs. Establishing residential roll -off cleanup costs as an annual fee and how to calculate it. [From Amendment #1.] • Tables of Fees Updated and Changed. Added identifiers and costs for items outlined in the contract. o New Service Delivery when a customer begins a new service account. o Re -Delivery Fee for remedy of a container being removed for non-payment. o Overage Fee established a fee for additional yards of solid waste hauled. o Annual Rate Adjustment for Lock -Bar Devices established a fluid cost for lock bars as the market prices increase or decrease. o Extra Bag Fee for Roll -Carts moved from the dumpster service surcharge table into the table for the roll -cart surcharges, and re -named it so it is more clear to customers. SECTION 12: MISCELLANEOUS PERFORMANCE OBLIGATIONS General grammatical edits. SECTION 13: IDEMNIFICATION, INSURANCE, LETTER OF CREDIT General grammatical edits. 13.02.e.1 Contract Name — added the contract name. SECTION 14: CHANGES IN SCOPE OF CONTRACT OBLIGATIONS No Changes. Page 315 of 329 AGENDA ITEM #8.a. Contract FY2019-25 Amendment #2 Summary of Changes by Section of Contract SECTION 15: BREACH OF AGREEMENT, DAMAGES, AND DEFAULT General grammatical edits. SECTION 16: SUSPENSION OR TERMINATION OF CONTRACT General grammatical edits. SECTION 17: TRANSFER OF CONTRACT General grammatical edits. SECTION 18: THE PARTIES General grammatical edits. SECTION 19: AMENDMENTS No Changes. SECTION 20: NOTICES, CONSENTS, AND APPROVALS No Changes. SECTION 21: INTEGRATIONS, GOVERNING LAW, AND VENUE General grammatical edits. SECTION 22: ADDITIONAL TERMS AND CONDITIONS No Changes. SECTION 23: DEFINITIONS This section includes several new and updated definitions aimed at increasing clarity and consistency between the contract and the Kodiak Island Borough Code. Definitions with a blue Star (*) at the front means it was transferred directly from the code definitions. • Account Holder — Included to be able to designate a person other than the owner, such as a tenant, as being responsible for the billing. • Bulky Items — added more specific detail to the general definition and reference to the on-call/scheduled bulky item pick-up service available. • C&D Debris — added more specific details to the general definition and reference to the on-call temporary dumpster or roll -off service available. • Cart or Roll -Cart — added roll -cart to specify the type of cart throughout the contract. • *Collection Service Area — included from the code. • Removed the Ione "commercial' and "commercial premises" definition and instead added Commercial Account and Commercial Customer to define the customer actions and solid waste streams not the premises or unit itself. • Container — the word is used throughout the contract but was not defined, added it for general reference. • *Contract Hauler — included from the code. • Contract Service Area — added a note to see the definition of Collection service Page 316 of 329 AGENDA ITEM #8.a. Contract FY2019-25 Amendment #2 Summary of Changes by Section of Contract area. Both are used in the contract. • Contract Service Assets -added Containers to the list of assets. • Contract Service Exceptions — added references to Dumpster and Roll -Cart Contract Service Exceptions and removed the more vague list of service exceptions. • Contractor — added The Contract Hauler (see definition "contract hauler") to the list of alternate names or titles for the contractor. • Customer or Customer Account — Customer is used throughout the contract and wanted to specify that the customer is the person who is associated with the account and unit receiving service. Another word for Account Holder. • Customer Count — clarifies and explains the equation of how to segregate the customers and waste streams to be able to calculate the annual rate adjustment. • Dumpster — added a more specific definition. • Dumpster Repair Shop Rate — included to be able to designate the title of the rate. • *Household Hazardous Waste — included from the code. • MSW Management Service — MSW is used throughout the contract and the written form of the acronym was not included in the definition. • Removed all references to Multi -Family. • Owner — included to designate the responsible party for signing up a premises or unit for solid waste services. • Ownership — removed own and owner from title but wanted to keep the legal definition of ownership. • Pledged Bank Account — it is referenced in the contract but was not defined. • Premises — left in but updated to assist in identifying buildings and units that require services. • Recyclables — updated the definition to be less vague. • Removed the Ione "residential' and "residential premises" definitions and instead added Residential Account and Residential Customer to define the customer actions and solid waste streams not the premises or unit itself. • Self -Haul — added to be included in definition list the self -haul definition as referenced in the contract. • Sharing of a Dumpster — added to be included in definition list as referenced in the contract and code. • Sole Purpose Dumpster — added to be included in definition list as referenced in the contract and code. Page 317 of 329 AGENDA ITEM #8.a. Contract FY2019-25 Amendment #2 Summary of Changes by Section of Contract • *Solid Waste Collection, Solid Waste Disposal, Solid Waste Generator, Solid Waste Storage, all included from the code definitions. • Transition Plan — added a note to this one that it is No Longer Applicable. • Uninhabitable — added to specify qualities that makes a building or unit not suitable for living or working. • Unit — added to identify the separation of a premises, and what individual spaces are responsible for obtaining and maintaining their own solid waste disposal services. • Unit Occupant — Added to assist in identifying who is responsible for services. SECTION 24: EXECUTION No Changes. EXHIBIT A - No Changes. EXHIBIT B - No Changes. EXHIBIT C- No Changes. CONTRACTOR'S PROPOSAL DOCUMENTS No Changes. Page 318 of 329 AG ME # .a. Contract No. FY2019-25 a. On behalf of KIB, charge Customers a fee or fees in the amounts directed by KIB; .ter b. Remit to KIB such portions of those fees as directed herein; c. Maintain detailed financial records regarding the billing and collection of fees; and, d. Issue Reports to KIB in the manner and at the times directed herein. 6.04 Collection and Transfer of Recyclable Cardboard Material. Subject to the conditions contained herein, Contractor shalt, among other things: a. Provide Cardboard Recycling Containers to Customers; and b. Deliver Cardboard Recycling Containers to the KIB designated recycling facility for processing. SECTION 6: SPECIFIC COLLECTION DUTIES 6.01 Mandatory Service. ca. Contractor acknowledges that Contractor is required to charge the owner or .w4gwupag4pf a Premises a Service Fee, regardless of whether that owner or occupant self -hauls Solid Waste and discards it in the Dumpster and Roll Off Container at KIB landfill or utilizes Services at Customer's Premises. b. If anyone notifies Contractor in writing that he or she wishes to personalty store, collect, transport and i pos Solid Waste generated on that person's Premises, (referred to as "self -haul") Contractor may nevertheless charge that person a Contract r Servi Fee commensurate with the gallon equivalent (32, 64 or 96 gall of Solid Waste that the self -haul Customer discards at the Dumpster or Roll Off Container located at KIB Landfill, as estimated by a KIB employee. c. Mandatory Service Notice. Within seven (7) Service Days after receiving notice (based on Contractor's drivers' observations, information and belief, or otherwise) that a formerly unoccupied Premise becomes occupied, -G& ices—#gave—ehanged, Contractor will give 7 written notice to the owner or occupant of that Premises that Service is required unless ona... a_ s already received. a reffiesfor SeLvice at that Pre 'se, or KIB rev-`. 'nuc„ provls'onS�"iiie Kf$`�'o e ani t req e mandatory Service. 6.02 Collection From Refuse Carts. Automated or Semi -Automated Collection. Contractor will Collect all Refuse Carts using an Automated or Semi -Automated manner. "Automated" means that Refuse Carts are lifted from their Set -Out Site, emptied and set 11 Page 319 of 329 AGENDA ITEM #8.a. This Second Amendment to Contract No. FY2019-25 ("Amendment") is made and entered into effective as of the 18th day of March 2021 ("Amendment Effective Date'), by and between WASTE CONNECTIONS OF ALASKA, INC. ("Contractor'), and KODIAK ISLAND BOROUGH (the 'Borou "). Contractor and the Borough are each individually referred to herein as a 'arty" and collectively as the "Parties". Capitalized terms not otherwise defined herein shall bave the respective meanings ascribed to them in the Agreement (as defined below). BACKGROUND A. WHEREAS, Contractor and the Borough entered into Contract No. FY2019-25 (the "Agreement") dated July 19,2019; and B. WHEREAS, the Parties have discovered and agree that the original contract contained an error in the listing of the commercial dumpster rates due to failure to prdperly transfer the rates proposed in the Contractor's proposal into the contract document; and C. WHEREAS, section 11.03 permits CPI adjustments to Collection and Administrative Cost Component, and PPI adjustments to the Fuel Cost Component beginning July 1, 2020 for each successive year of the contract; and D. WHEREAS, section 11.03 permits and a Disposal Cost Component adjustment July 1, 2020 and each July I thereafter based upon the changes in the tonnage rate charged the Contractor and the change in customer's served since an April 15, 2018 reference date but the Request for Proposals used rates as of October 2018 as a reference point for rate proposals; and E. WHEREAS, section 6.03 contains two sections labelled as subsection b and is ambiguous as to the authority and criteria for changes in container size; and F. WHEREAS, the parties desire to revise the method for determining and charging the per occurrence charges for Residential Roll -Off or Dumpster Clean-up Costs; and G. WHEREAS, the Parties now desire to amend the Agreement to correct the error in the listing of the commercial dumpster rates as they appeared in the original agreement; to correct the reference date for calculation of adjustments for changes in disposal rates; to reduce the ambiguity as to the intended operation of subsection 6.03(b), and to incorporate those adjustments due under section 11.03 of the contract effective as of July 1, 2020. AGREEMENT NOW, THEREFORE, in consideration of the premises and obligations as set forth in this Amendment, the receipt and adequacy of which is hereby agreed to and acknowledged, the Parties agree as follows: 1. Amendment to Section 6.01(b) of the Agreement. The subsection entitled "Mandatory Service" on page 11 of the agreement is amended to clarify how the standard container charge for self-bauling customers is determined, and restated to read as follows: L "(b)" If anyone notifies Contractor in writing that he or she wishes to personally store, collect, transport and dispose of Solid Waste generated on that person's Premises, (referred to as "self -haul"), Contractor may nevertheless charge that person a Contractor Service Fee commensurate with the weekly roll cart fee, based upon 95 gallons or less of Solid Waste that the self -haul (commercial or residential) Customer discards at the Landfill or a Roll Off Container. 2. :.''AM 6� 3l#1]-WMAgrcement. The subsection entitled "Dumpster Options" on page 13 of the agreement is amended to clarify how the appropriate container is determined, and restatcr to read as follows: b. Dumpster Options. Page 320 of 329 AGENDA ITEM #8.a. (1) Standard Option. Contractor will provide each Commercial Premise and Multi -Family Premise (as defined in section 23) with one 2.0 cubic yard capacity dumpster to be Collected once weekly for the charge listed on the Service Fee Schedule in Section 11.01, subject to the following exceptions: (i) If a Premise falls within a Borough -designated `Bear Aware" area, it shall without exception receive a bear -resistant Dumpster. �Ol g A Commercial Customer may direct Contractor to provide a Dumpster of alternate capacity, or one or more Roll -Off Containers, sub Schedule.ject to the charges prescribed by the Contractor Service Fee (iii) Commercial Customer which requires one or two 95 -gallon roll carts per week to properly store and dispose of their refuse may request and receive a reduction to_single or double roll carts_ chargedatthemllcartrate. j, Co riTaMustomer which requires more than tw'o 95 -gallon roll carts weekly to securely store and dispose of their refuse will receive service under the standard option, subject to modification only under (ii), (iv), (v) and (vi) of this section. (iv) A Commercial Customer with dumpster service may also direct Contractor to, notwithstanding any Regularly Scheduled Collection Day(s), collect refuse from the Customer's Premises on alternate or additional days as agreed to between the Contractor and Customer, and subject to the Contractor Service Fee Schedule. (v) For a Commercial Premise or Multi Family Premise, should the Contractor, in its sole discretion, determine that there is insufficient room at a premise to place or safely collect one or more dumpsters for each customer using the corresponding set- out site, the Contractor will either: A. Provide one or more carts of the capacity and number that each Customer requires to safely and adequately store its discarded Refuse pending Collection; or. B. Allow one or more Customers to share a Dumpster. (vi) Should the Contractor determine that the routine waste volume of a Commercial Premises or Multi Family Premise requires a larger capacity container, the Contractor may provide c a -containers) of sufficient size and notify the customer and the Borough of the changer in CLQ`� L- container(s). (vii) If there is a dispute as to the size container required or whether a customer's waste stream requires more than the customer requested container(s) the Borough Manger or designee will review the circumstances and make a final administrative determination. n 3. Amendment to Section 6.03(b -d) of the Agreement. The subsection entitled "b. Compactors" on page 13 of the agreement is incorrectly labelled as a second subsection 6.03(b). This section is re -labelled as subsection 6.03(c), and the subsections labelled (c) and (d) on page 14 of the agreement are re -labelled to be (d) and (e). 4. Amendment to Section 11.01 of the Agreement. The table titled "Contractor Service Fee for Cart Service" on page 29 of the Agreement which originally read: Contractor Service Fee for Cart Service Monthly Service Fee (Serviced Once per Container Week) Senior Discount 95 -gallon Bear Resistant Roll Cart $49.95 $42.95 -$7.00 Page 321 of 329 AGENDA ITEM #8.a. Ch. 8.25 Solid Waste Collection and Disposal I Kodiak Island Borough Code Page 6 of 18 C. While storing or handling human food, animal food, or solid waste, no one may violate 5 AAC 92.230 which prohibits the feeding of game and deleterious exotic wildlife, nor in a manner that attracts game, deleterious exotic wildlife, dogs, or cats. [Ord. FY2010-07 §3, 2010]. 8.25.050 Litter. In addition to the prohibitions in Chapter 8.20 KIBC, no one may place solid waste in another person's bin, cart, or roll -off without that person's consent. [Ord. FY2010-07 §3, 2010]. 8.25.060 Solid waste collection service. A. Regular Service. Every owner of premises in the collection service area must subscribe to and pay for solid waste collection service for its premises by the contract hauler at least weekly, in carts, including bear carts, bins, or roll -offs, as administered by the manager, even if that owner self -hauls all or a portion of its solid waste for disposal at the borough landfill or recycling at a processing facility. B. Temporary Service in Bins/Dumpsters. Anyone who has a temporary need or conducts construction or demolition on its premises may subscribe to and pay for solid waste collection service from the contract hauler for bin or dumpster service. [Ord. FY2010-07 §3, 2010]. 8.25.070 Solid waste storage and set -out. A. Storage. Each solid waste generator is responsible for the placement of that person's cart so that it will not easily be tipped, such as by an animal or the wind. Lids on bins or carts must be kept closed to keep out rain, snow, and animals. Surplus liquids must be drained from solid waste and placed in watertight bags before discarding them in containers. B. Set -Out. 1. Site. Carts or bins must be placed in the following locations by the contract hauler or solid waste collection service recipient: a. Roadside; b. In an adjacent alley; or c. Within three feet of the roadway on which the contract hauler can drive its collection vehicles. For example, if the serviced premises are adjacent to more than one street, alley, or roadway, the contract hauler may instruct the customer to set out containers on only one specified street, alley, or roadway. The Kodiak Island Borough Code is current through Ordinance FY2024-02, and legislation passed through June 15, 2023. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 45 46 47 48 49 50 51 KODIAK ISLAND BOROUGH ORDINANCE NO. FY2025-NN AGENDA ITEM #8.a. AN ORDINANCE OF THE ASSEMBLY OF THE KODIAK ISLAND BOROUGH AMENDING VARIOUS SECTIONS OF THE KODIAK ISLAND BOROUGH CODE TITLE 17 ZONING TO INCLUDE DEFINED INTENT AND DEVELOPMENT STANDARDS FOR ACCESSORY DWELLING UNITS WHEREAS, the Kodiak Island Borough Assembly adopted Ordinance No. FY2017-21 which first adopted accessory dwelling units as a part of Title 17; and WHEREAS, the Kodiak Island Borough Assembly adopted Ordinance No. FY2019-20 which changed development standards for accessory dwelling units related to parking and size limits; and WHEREAS, Kodiak Island Borough Code (KIBC) 17.25.020 defines Accessory Dwelling unit "ADU"; and WHEREAS, KIBC 17.50.040, 17.60.030, 17.65.040, 17.70.030, 17.75.030, and 17.80.025 list conditional uses for the conservation, rural residential, rural residential 1, rural residential 2, and the residential 1 zoning districts; and WHEREAS, KIBC 17.50.020, 17.65.030, 17.70.020, and 17.75.020 list permitted use for the conservation, rural residential, rural residential 1, and the residential 1 zoning districts; and WHEREAS, KIBC 17.160.070 permits ADU construction; and WHEREAS, KIBC 17.205.010 provides that "Whenever the public necessity, convenience, general welfare or good zoning practice requires, the assembly may, by ordinance and after report thereon by the commission and public hearing as required by law, amend, supplement, modify, repeal or otherwise change these regulations and the boundaries of the districts'; and WHEREAS, the public necessity and general welfare of the community may be better served by amending the code to include defined intent and development standards for accessory dwelling units; and WHEREAS, the public necessity and general welfare of the community may be better served by amending the code to make all types of accessory dwelling units permitted uses in the rural residential, rural residential 1, and the residential 1 zoning districts; and WHEREAS, the amendments to KIBC 17.160.070 Accessory Dwelling Units and related sections of Title 17 will accomplish the stated public need. NOW, THEREFORE, BE IT ORDAINED BY THE ASSEMBLY OF THE KODIAK ISLAND BOROUGH that: Section 1: This ordinance is of a general and permanent nature and shall become a part of the Kodiak Island Borough Code of Ordinances. Section 2: That Title 17 of the Kodiak Island Borough Code of Ordinances is amended to read as follows: Ordinance No. FY2025-NN Page 1 of 6 Page 323 of 329 AGENDA ITEM #8.a.- 52 j 53 Chapter 17.25 DEFINITIONS 54 55 17.25.020 A definitions. 56 57 "Accessory dwelling unit (ADU)" means a smaller, secondary as addi#enal dwelling unit 58 alla-cohed le AW within a single family Fesidenc;e or within a detarhed aGGessery slFwaWfe — as - 59 60 an�f-eX:[;-And- li[Q.l k, s en, baihroam,,: ti^a a nd sleeping faGilit4& located on the same 61 lot as a principal dwelling. ADUs provide complete, independent[ living facilities (which at 62 a minimum include permanent provisions for living, sleeping, eating, cooking, and 63 sanitation which are accessed independently). The ADU shall not constitute a dwelling unit 64 for purposes of calculating permissible density. Only one ADU may be permitted per lot. 65 There are two types of ADUs: 66 67 A. Attached ADUs are connected to or part of the principal dwelling. Examples 68 include converted living space, attached garages, basements or attics: 69 additions: or a combination thereof. An ADU shall be considered to be a part 70 of the main building when joined to the main building by a common wall not 71 less than four feet long or by a roofed passageway which shall not be less 72 than eight feet in width. 73 74 B. Detached ADUs which are separate accessory structures from the principal 75 dwelling. Examples include converted garages or new construction. 76 .. 77 78 Chapter 17.50 C - CONSERVATION DISTRICT 79 80 17.50.040 Conditional Uses. 81 .. 82 J. Marijuana cultivation, standard (lots less than five acres) 83 84 K. Accessory dwelling units that do not meet one or more of the development 85 standards listed in KIBC 17.160.070.C, 1 through 7. 86 87 Chapter 17.60 RR2 - RURAL RESIDENTIAL TWO DISTRICT 88 89 17.60.030 Conditional uses. 90 .. 91 C. Marijuana cultivation, limited (lots equal to or greater than two acres):! 92 93 D. Accessory dwelling units (ADUs) that do not meet one or more of the development 94 standards listed in KIBC 17.160.070.C, 1 through 7. 95 96 Chapter 17.65 RR - RURAL RESIDENTIAL DISTRICT 97 98 17.65.030 Permitted accessory uses and structures. 99 100 A. Accessory buildings and accessory dwelling units (ADDS). 101 .. 102 Ordinance No. FY2025-NN Page 2 of 6 Page 324 of 329 103 104 105 106 107 108 109 110 111 112 113 114 115 116 117 118 119 120 121 122 123 124 125 126 127 128 129 130 131 132 133 134 135 136 137 138 139 140 141 142 143 144 145 146 147 148 149 150 151 152 153 AGENDA ITEM #8.a. 17.65.040 Conditional uses. C. Accessory dwelling units (ADUs) that do not meet one or more of the development standards listed in KIBC 17.160.070. C. 1 through 7. Chapter 17.70 RR1 – RURAL RESIDENTIAL ONE DISTRICT 17.70.020 Permitted uses. M. Accessory dwelling units (ADUs) (attaGhed). 17.70.030 Conditional uses. D. Accessory dwelling units (ADUs) (deiaol#&d4 that do not meet one or more of the development standards listed in KIBC 17.160.070. C, 1 through 7. Chapter 17.75 R1 – SINGLE-FAMILY RESIDENTIAL DISTRICT 17.75.020 Permitted uses. H. Accessory dwelling units (ADUs) (attached); 17.75.030 Conditional uses. F. Accessory dwelling units (ADUs) (deiac;hed3 that do not meet one or more of the development standards listed in KIBC 17.160.070. C. 1 through 8. Chapter 17.80 R2 – TWO-FAMILY RESIDENTIAL DISTRICT 17.80.020 Permitted uses. ... I�—Acc•,�T-dwelli�� eeits-wl}er+-t#aere•+s-•a-si+a•gis-€acx�+ty-Fes+densa-9+�-tfaa�sp�t-Y; QP. Urban agricultural buildings and activities; and lig. Agricultural buildings and activities (lots equal to or greater than 40,000 square feet when there is a single-family residence on the property). Chapter 17.160 ACCESSORY BUILDINGS AND ACCESSORY DWELLING UNITS 17.160.070 Accessory dwelling units. A. Intent. Accessory dwelling units (ADUs) add options and housing choice in residential neighborhoods and can be an effective way to add affordable housing to existing neighborhoods. ADUs also provide a flexible way to address family needs for additional housing. ADUs are not intended for use as transient housing and shall not be permitted for use as a bed and breakfast. 1. ADUs are not intended to allow a two-family residence in any single-family residential zoning district. Ordinance No. FY2025-NN Page 3 of 6 Page 325 of 329 AGENDA ITEM #8.a.- 154 155 156 dwelt+ 157 158 B. Permitted Uses. 159 160 1. ADUs are a permitted use in the following residential zoning districts: 161 162 a. Chapter 17.50 KIBC, C - Conservation District; 163 164 b. Chapter 17.65 KIBC, RR - Rural Residential District, 165 166 Ix. Chapter 17.60 KIBC, RR2 - Rural Residential Two District; 167 168 ed. Chapter 17.70 KIBC, RR1 - Rural Residential One District (attaGhed); 169 170 de. Chapter 17.75 KIBC, R1 - Single-family Residential District fattaGhed 171 172 173 174 r apndigi W l $RAF; 175 176 . 177 178 , 179 180 b.G apf'7 ., -9 lQ'.l8Qj WZ4 gal Residential 9ne Dis_Uist ¢detashed7, 181 182 183 184 DC. Development Standards for ADUs. 185 1. Only one APW rhall be perrni#Ad Qn R let -Lot size: The minimum lot area of the 186 applicable zoning district shall apply. No lot that is substandard in the minimum lot 187 area of the applicable zoning district may apply for an ADU. 188 189 2. Location. An ADU may be attached to or located within a single-family residence or within 190 a detached accessory building on the same lot as the single-family residence or as a 191 separate structure on that lot. 192 193 a. Attached ADU: if toe. ^r"' :rb '^^_A� YOU OP ji-"le-f4msly-dwo44nq, There shall only 194 be one entrance to the front of the house. Separate entrances to an ADU located within 195 the principal dwelling or attached to it are permitted at the side or the rear of the 196 principal dwelling unit. 197 b. Detached ADU: The structure in which the ADU is located shall be located either 198 to the side or behind the principal structure that contains the single-family 199 residence. 200 201 3 ADV& a FeClUiFed ►,,.,oFnpi,._ with all ..applicable bLlildiAq andfi.srrrla 202 Ordinance No. FY2025-NN Page 4 of 6 Page 326 of 329 203 204 205 206 207 208 209 210 211 212 213 214 215 216 217 218 219 220 221 222 223 224 225 226 227 228 229 230 231 232 233 234 235 236 237 238 239 240 241 242 243 244 245 246 247 248 249 250 251 252 AGENDA ITEM #8.a. 43. Water Supply and Wastewater Disposal. The accessory dwelling unit must have a bathroom and shall share the same sewage disposal and water supply systems (e.g., a well and septic system or connection to public water and sewer) as the principal dwelling unit unless separate sewer and water connections are required by the city of Kodiak, ADEC, or the communities of Akhiok, Karluk, Larsen Bay, Old Harbor, Ouzinkie, or Port Lions. ,54. Parking. a. Five off-street parking spaces are required for any lot with an ADU that is 600 SquaFe feet -or !ass outside the City of Kodiak (three for the existing dwelling unit and two for the ADU). b. 4%wFour off-street parking spaces are required for any lot with an ADU that is gFeateF !ham 600 squaFe fee! located within the City of Kodiak (three for the existing dwelling unit and thrRAone for the ADU). 65. Size Limit. a. An ADU shall be limited to 6-7-6800 square feet or less '^ U; -Ad o2 036IF90Fc '^ '" 1C hZZ164d to 726 square feet of lar.6. b. Mobile homes, recreational vehicles, campers, and travel trailers are not permitted to be used as an ADU. 7. The-owneF of- the .,FGPeFt y rhe liVe iR +he pFiFlGipal. welling eF the AIDU. a6. No new access points or driveways shall be created or installed for access to the ADU. 97. Nonconforming Structures. a. ADUs may be located within an existing single-family detached dwelling that is nonconforming with respect to required setbacks, provided the ADU requirement for off-street parking is met. b. ADUs are prohibited in any accessory structure that is nonconforming with respect to required setbacks. 4.98. Access for Emergency Services Providers. a. The zoning compliance permit and site plan for an ADU must show the location of an unobstructed route of travel from the street to the ADU entrance. b. Exterior doors and openings required by this code or the IBC shall be maintained readily accessible for emergency access by the fire department. An approved access walkway leading from the apparatus access roads to exterior openings shall be provided when required by the fire code official. 449_. VaFianees Conditional Use Permit Required. :886 aR .u, ,,OFA.. ,,..,RBF the "ig"* 19 GF dwelling u F0/ „niers A ep_Rf rms to all PFE)Y,R,,.. R mR c;psti , �.,io RRH !R the �R fR;!�ffe � Ordinance No. FY2025-NN Page 5 of 6 Page 327 of 329 253 254 255 256 257 258 259 260 261 262 263 264 265 266 267 268 269 270 271 272 273 274 275 276 277 278 279 280 281 282 283 284 AGENDA ITEM #8.a. - unit.sestion fOF Me zoning designation ef the sper-,Aed- le -4. NA- VWO�ARA-A-A- A -hall he granted far Provisions within this chapter shall not be eligible for a variance. A proposed ADU that does not meet one or more of the provisions of paragraph D, 1 through 8, may request a conditional use permit. As part of the conditional use permit review, the applicant shall provide Effective Date: This ordinance takes effect upon adoption. (Note: KIBC 2.30.070 states an ordinance takes effect upon adoption or at a later date specified in the ordinance.) ADOPTED BY THE ASSEMBLY OF THE KODIAK ISLAND BOROUGH THIS DAY OF , 2024 KODIAK ISLAND BOROUGH Scott Arndt, Mayor Introduced by: First reading: Second reading/public hearing: VOTES: Ayes: Noes: Ordinance No. FY2025-NN ATTEST: Nova M. Javier, MMC, Borough Clerk Page 6 of 6 Page 328 of 329 Meeting Type: KODIAK ISLAND BOROUGH Assembly Work Session AGENDA ITEM #8.a. Date: to, 10 - �10 2:� t Please PRINT your name legibly Phone number Page 329 of 329 d4k- a?,I- D3g3 ' Page 329 of 329