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FY2019-25 & 25A Residential and Commercial Solid Waste Collection and Recycling Services (Passed)3.19.2021 Version Contract FY2019-25A FIRST AMENDMENT VERSION II TO CONTRACT NO. FY2019-25 RESIDENTIAL AND COMMERCIAL SOLID WASTE COLLECTION AND RECYCLING SERVICES BETWEEN KODIAK ISLAND BOROUGH WASTE CONNECTIONS OF ALASKA, INC. dba ALASKA WASTE MAY 2019 AMENDED MARCH 2021 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 "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 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. 2 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 3.19.2021 Version Each Additional 95 -gallon Bear Resistant Roll Cart $49.95 $42.95 -$7.00 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 Agreement. 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 1It- October 313 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 Agreement. 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: 4 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: 10-20 cubic yard Contractor Monthly Service Fee for Dumpsters 10-20 cubic yards 30-40 cubic yards Compactor Dumpster Dumpster $161.44 per haul, plus $214.69 per haul plus Number of Dumpsters Scheduled Tips Per Week Number of Dumpsters disposal fee, plus Scheduled Tips Per Week $214.69 per haul, plus 1 $21.25 disconnect fee Size disposal fee 1 4 2 6 3 2 yard 4 313.42 5 6 Extra Pickup 2 yard $ 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 $ 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 1 $ 3266.18 $ 4354.90 1 $ 5443.63 $ 6532.36 $ 289.15 *Contractor Service Fee for multiple Dumpsters is equal to the above scheduled amounts multiplied by the number of Dumpsters 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 Agreement. The table titled "Contractor Monthly Service Fee for Roll - Off Service" on page 31 of the Agreement which initially read as follows: Contractor Monthly Service Fee for Roll -Off Service 10-20 cubic yard Contractor Monthly Service Fee for Dumpsters 10-20 cubic yards 30-40 cubic yards Compactor Dumpster $161.44 per haul, plus $214.69 per haul plus Number of Dumpsters Scheduled Tips Per Week disposal fee, plus disposal fee, plus Size $214.69 per haul, plus 1 $21.25 disconnect fee 2 disposal fee 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 Dumpsters is equal to the above scheduled amounts multiplied by the number of Dumpsters 7. Amendment to Section 11.01 of the Agreement. The table titled "Contractor Monthly Service Fee for Roll - Off Service" on page 31 of the Agreement which initially read as follows: Contractor Monthly Service Fee for Roll -Off Service 10-20 cubic yard 30-40 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) 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 30-40 cubic yard 10-20 cubic yards 30-40 cubic yards Compactor Compactor haul $214.69 per haul $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 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 Monthly Service Fee for Cardboard Recycling Service 10 cubic yards 20 cubic yards 30 cubic yards 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 1 $213.61 per haul $213.61 ner 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. 0 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 I 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 Ad' ustment 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 1) 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 -1.16% F0-44% 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 $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. 7 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 cy, lx/weekly, 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 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] IN WITNESS WHEREOF, the Parties execute this Amendment as of the date first written above. Contractor: WASTE CONNECTIONS OF ALASKA, INC. By: Name: _ _1L, c+* Title: b: v, S:or• v; t.--Peca:d+,, 4 - Date: 3 to I zzoz, ATTEST: By: 2L - Name: r n S ' erq"n at Title: ; Date: 3 a yoz/ The Borough: KODI) By: Name: Title: Date: ATTES" By: Name: Title: Date: APPROVED By: Name: S Title: Date: NOTICE OFINTENT TO AWARD KODIAK ISLAND BOROUGH 710 MILL BAY ROAD KODIAK, ALASKA 99615 Contract No.: FY2019-25 Residential and Commercial Solid Waste Collection and Recycling Services Contractor: Waste Connections of Alaska, Inc. dba Alaska Waste 6301 Rosewood St. Anchorage AK 99518 The Kodiak Island Borough (KIB)(Owner) has considered the proposal submitted by you for the above described work in response to its Request for Proposals (RFP) dated October 2018. You are hereby notified that your proposal has been accepted and recommended for award of contract. However, please be advised that this Notice of Intent to Award does not obligate the Owner. A legal binding agreement will not be entered into until the Agreement approved by the Borough Assembly has been signed by their designee. A copy of the approved contract is enclosed. Section 5.9 of the RFP dictates a protest period through June 4, 2019. At the end of that period, and barring any protests, you are required to execute a Contract no later than June 21, 2019. After the expiration of the protest period if there is no protest, the KIB will provide a final copy of the contract documents to be executed and returned by June 21, 2019. If there is a timely protest, execution will be placed on hold until the protest is heard and decided. Section 5.10 of the RFP requires you to submit a Final Transition Plan, Customer Complaint Protocol, and Customer Billing Procedures within 60 days of this Notice of Intent to Award. You are required to return an acknowledged copy of this Notice of Intent to Award to the Owner. Dated this 61' day of May, 2019. iic)liaelftwers, orough Manager ACCEPTANCE OF INTENT TO AWARD Receipt of the foregoing Notice of Intent to Award is hereby acknowledged. Dated this —7 day of LX4Z 2019. By: Title: /7m (k 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 RECEIVED al � 09 BOROUGH CLERK'S OFFICE KODIAK.ALASKA Contract No. FY2019-25 TABLE OF CONTENTS 2 RECITALS............................................................................................................................5 SECTION1 EXCLUSIVE CONTRACT................................................................................5 SECTION 2 REPRESENTATIONS AND WARRANTIES....................................................6 2.01 Contractor's 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 SECTION4 TRANSITION PLANNING................................................................................7 4.01 Transition Plan.........................................................................................................9 SECTION 5 GENERAL SCOPE OF CONTRACTOR DUTIES..........................................10 5.01 Collection and Transfer of Refuse.........................................................................10 Service 5.02 Customer ..................................................................................................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 Collection from Refuse Carts 6.02 ................................................................................11 6.03 Collection from Dumpsters, Roll -Off Containers, or Compactors ...........................12 6.04 Bulky Items............................................................................................................14 Emergency Services 6.05 .............................................................................................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 Methods 8.03 ................................................................................................................17 8.04 Equipment and Personnel.....................................................................................17 8.05 Final Disposition of Recyclable Materials..............................................................17 Documentation 8.06 ......................................................................................................17 8.07 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 Service Standards 9.07 .................................................................................................23 9.08 Billing and Accounting Practices...........................................................................25 SECTION 10 RECORDKEEPING AND REPORTING.......................................................25 10.01 Acknowledgement.............................................................................................26 10.02 Records............................................................................................................26 2 Contract No. FY2019-25 10.03 Reporting..........................................................................................................27 Transfer by Contractor......................................................................................59 10.04 Financial Records and Reports.........................................................................27 Independent Contractor....................................................................................61 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 Defaults..... 15.05 Remedies Upon Breach .................. 15.06 Additional Compensatory Damages ........................................ Waivers................................................................................... Costs....................................................................................... KIB Right To Perform.............................................................. 16 SUSPENSION OR TERMINATION OF CONTRACT......... KIB's Right to Suspend or Terminate ...................................... Criminal Activity...................................................................... 15.07 15.08 15.09 SECTION 16.01 16.02 SECTION 17.01 SECTION 18.01 18.02 18.03 18.04 18.05 18.06 18.07 18.06 18.09 18.10 SECTION 19.01 SECTION 20.01 ..............49 ..............80 ..............82 .........................83 ......................... 83 ......................... 84 .........................57 .........................57 ......................... 58 17 TRANSFER OF CONTRACT.......................................................................59 Transfer by Contractor......................................................................................59 18 THE PARTIES..............................................................................................61 Independent Contractor....................................................................................61 Partiesin Interest..............................................................................................61 Binding on Successors......................................................................................61 Further Assurances...........................................................................................61 Actions of KIB in Its Governmental Capacity.....................................................61 Contractor's Obligations Performed at Its Sole Expense...................................61 Parties' Representative.....................................................................................61 DueDiligence....................................................................................................90 NoUse of KIB Name.........................................................................................90 Subcontractors..................................................................................................90 19 AMENDMENT..............................................................................................63 Amendments.....................................................................................................63 20 NOTICES, CONSENTS, AND APPROVALS...............................................64 Notices..............................................................................................................64 3 EXHIBIT A: REQUEST FOR PROPOSAL EXHIBIT B: LIQUIDATED DAMAGES EXHIBIT C: CONTRACTOR'S PROPOSAL DOCUMENTS 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 Severability66 21.04 New Contract....................................................................................................66 21.05 Venue...............................................................................................................67 21.06 Costs.................................................................................................................67 SECTION 22 ADDITIONAL TERMS AND CONDITIONS..................................................67 SECTION23 DEFINITIONS...............................................................................................68 SECTION24 EXECUTION................................................................................................88 EXHIBIT A: REQUEST FOR PROPOSAL EXHIBIT B: LIQUIDATED DAMAGES EXHIBIT C: CONTRACTOR'S PROPOSAL DOCUMENTS 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. 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 limes ready, willing, and able to meet each and every Performance Obligation. 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 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 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 M Contract No. FY2019-25 agreement or instrument entered into by Contractor in connection with the transactions contemplated bythisContract. 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. 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. 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 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 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; D Contract No. FY2019-25 f. providing endorsements extending coverage of claims made insurance policies, if IB waives the claims made requirement and allows claims made insurance policies; any other provision that expressly states that it survives the Termination Date (such transfer of Cart ownership to KIB); and any right of either Party vested and any obligation of either Parties accrued before the Termination Date. 3.03 Obligations Upon Termination or Expiration. 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 Customer'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 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 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 b. Deliver Cardboard Recycling Containers to the KIB designated recycling facility for processing. SECTION 6: SPECIFIC COLLECTION DUTIES 6.01 Mandatory Service. 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 6.03 C. 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. 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. 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 Requests 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. 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 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 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 KIB 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 locations specified by the KIB. Contractor will collect cardboard recyclable material 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 KIB to ensure that each Cardboard Recycling Container is promptly emptied when container is at capacity. 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 Fee 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 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 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 Roll -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 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 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 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, (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. 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 ail 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 9.03 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. 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 prior to implementation. 19 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, if 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: (i) 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 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 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 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 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 (10) 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 for the following: (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 22 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 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. 23 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 Contract No. FY2019-25 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) Conies. Contractor will provide KIB with a copy of any Subscription Summary promptly upon request. SECTION 10: RECORDKEEPING AND REPORTING 25 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 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 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 Right to Inspect or Audit. 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; W 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 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 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 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 dale designated by KIB). r� 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 NE 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 3 of Disposal Distance Charge $3.50 per mile beyond United States Coast $156.07 Guard base Rollout Service for Non -Eligible $7.36 Customers - Initial 30 feet or fraction 2.6 cubic yards Rollout Service for Non -Eligible $6.13 Customers - Each additional 30 feet $833.88 Beginning 7 months after Collection $25.00 plus Direct Cost of Cart Commencement Date, replacement of $486.81 Cart in excess of once per calendar $973.64 year 3.6 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 4 cubic yards Lock on dumpster $25.00 to install, no charge thereafter Collection of residential material that $6.87 does not fit in roll -cart 5 cubic yards Residential Roll -Off or Dumpster $5.00 Clean-up Costs $1489.72 Contractor Monthly Service Fee for Dumpsters Dumpster Size" Number of Dumpsters (Scheduled Tips Per Week) 1 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 $1088.73 $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 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 pull $214.69 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 31 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 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 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 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 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. "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.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 year n 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 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 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 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 Change Over the Initial Contract. The percentage of profit (operating margin) identified by the Contractor for each level of service 33 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 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 Adiustment 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). 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 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) Calculation of % 2 I half, current year -1 223.83 change in CPI 2 n 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 Component 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%) Portion of % 75% -1.10% change 35 Contract No. FY2019-25 (3) Disposal Cost Adjustment EXAMPLE ONLY Row 20W zu-1%1 1 cuwW8.5 Tonnage Rate Adjustment Base Tonnage Rate ($/ton $362when 1 ro osal submitted2Tonnage Rate in next contract $398 $398 ear Jul 1 - June 303 Percent increase (decrease) 4.65% 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 Januar 1 - December 31 5 Customer actuals (as of April 3,115 3,150 3,245 3,240 6 1 Ratio, tons / customer 2.757 2.783 2.725 2.769 Percent increase (decrease) 0.94% -1.16% 0.44% 7 from contract start Disposal Cost Component Adjustment, effective Jul 1 (1 + Row 3) x (1 + Row 7) - 1, 5.64% 7.27% 9.01% 8 rounded to hundredths 9 1 Disposal Cost Component 1$14.83 1$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. 36 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 CPI $13.57 $0.15 $13.72 Administrative Costs Fuel Fuel PPI $3.30 ($0.04) $3.26 Fixed (rent, No Inflators $9.00 $0.00 $9.00 depreciation, lease 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) Adiusted 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. 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 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. 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-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 may be specified by KIB. SECTION 13: INDEMNIFICATION, INSURANCE, LETTER OF CREDIT 39 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 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 forthis 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 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 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 42 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. 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 KIB' s request, Contractor must provide 43 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 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: 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 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 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 KIB. (3) Quantified standards of performance are necessary and appropriate to ensure consistent and reliable Contract Service, and if Contractor fails to 47 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 Liguidated 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") 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 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 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) 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 substantially impair Contractor's ability to timely and fully perform Contract Services, and which cannot be released, bonded or otherwise lifted within forty -e ig ht (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 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 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 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 otheravailable 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 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 Contract No. FY2019-25 G. Review and evaluate those proposals and seek clarifications of those proposals. H. Award this Contract under KIB's Applicable Law; 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 UI.L77h797J1.1 ty'`IijFb� (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. 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. 55 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. 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 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 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, 56 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 itE should any of the following Termination (1) Contractor's Default; sole discretion, terminate this Contract Events occur: (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 ofwhether itis 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 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. 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 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 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 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, 59 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 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: (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 KIB consents to Transfer of this Contract, upon request of the transferee, KIB will execute a novation under which the Person which is the RE 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 KIB and not KIB's Related Party or a party to anyjoint 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. U 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. 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 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 or Terminating 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. 62 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'sjudgment, 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 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 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 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 Contract No. FY2019-25 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 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. 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, 67 Contract No. FY2019-25 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. 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, and w a r n i n g f I a g s; registration; weight limits; cleaning; enclosure I 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 m 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. W 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 item(s) 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 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 wall 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: (i) 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 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 or termination 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 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 / 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 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 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 5:00 a.m. to 5:00 p.m. Monday through Friday (Holidays excepted). 74 AK.nrrairu��-� 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 "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 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 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 satisfactory to KIB. Itis Contractor Documentation. Customer Service Subscription is Contractor Documentation consisting of the service order form prescribed by Section 9.06, as approved by KIB. Day means a calendar day. (Compare "KIB Business Day" and "Contract Service Day".) Default means'flefaulf' 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) Z� 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 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 "under this Contract"; "hereinbefore" and Contract Commencement Date, respectively. mean "in this Contract", "of this Contract", "hereinafter" mean before and after the 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. KIB 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".) KIB Code means municipal law of KIB. 78 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; (6) citations; (7) investigations; (8) demands; (9) clean-up orders; (10) damages (including actual, special, contract or in tort, such as natural damages; (11) costs and expenses, including consequential and punitive) whether in resource, property and personal injury (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 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 318(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 31 B(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. &C 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 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 at 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 respecting facilities or facility operations that do not involve Collection, such as materials recovery facility plans and specifications); and, (8) photographs. Recyclables means Solid Waste that is recyclable. Lh 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 Contract No. FY2019-25 (1) dismounting from the Collection Vehicle, (2) moving a Receptacle more than five feet (5') 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) C&D 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 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 99 Contract No. FY2019-25 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 Collectorto 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 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; (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; M 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 KIB 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 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. KIB. 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 su �diyi n By; M By: � Name: Michael Powers Name: 61 M�()(r+ nW,t� � Title: Boroug/h/ Manage Title: Dated: / / Dated: ATTEST: / /��jn ft\ ATTEST: By: Name: Tara Welinsky' Title: Borou h Clerk��ated: tle: t ll'V • u -s -rice. U a.�1�_� 1 D1� a3� Int Dated: ! n1 —� APPR,9VED AS TO FOR �Oaatw KIB COUNSEL��- / 1 Name: 419 L / i . ✓v d 7y�G �E?v� Title: Borough Attorney LE 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. KIB. 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 Alaska, a political subdivision M Name: Michael Powers Title: Borough Manager Dated: ATTEST: CONTRACTOR By: V AA Name: nMA(( Title: J v'>i U'Le- Dated: ATTEST: By: By: Name: Tara Welinsky Nar Title: Borough Clerk Title Dated: APPROVED AS TO FORM: KIB COUNSEL Name: Title: Borough Attorney E3 Dated: -11 a3j ISI —rte Dated: —72'3 t l EXHIBIT A REQUEST FOR PROPOSAL mm Contract No. FY2019-25 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. 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; .6 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; 91 Contract No. FY2019-25 EXHIBIT C CONTRACTOR'S PROPOSAL DOCUMENTS "�