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2010-04-15 Regular MeetingKodiak Island Borough Assembly Regular Meeting Agenda Thursday, April 15, 2010, 7:30 p.m., Assembly Chambers 1. INVOCATION 2. PLEDGE OF ALLEGIANCE 3. ROLL CALL 4. APPROVAL OF AGENDA 5. APPROVAL OF MINUTES - None. 6. AWARDS AND PRESENTATIONS A. Student of the Month — April 2010 B. Employee of the Year C. Longevity Awards 7. CITIZENS' COMMENTS (Limited to Three Minutes per Speaker) A. Agenda Items Not Scheduled for Public Hearing and General Comments 8. COMMITTEE REPORTS 9. PUBLIC HEARING A. Ordinance No. FY2010 -08 Rezoning Lot 11A, U.S. Survey 3474 From C- Conservation To RNC -Rural Neighborhood Commercial. 10. BOROUGH MANAGER'S REPORT 11. MESSAGES FROM THE BOROUGH MAYOR 12. UNFINISHED BUSINESS A. Ordinance No. FY2010 -07 Amending the Kodiak Island Borough Code of Ordinances Title 8 Health and Safety by Repealing the Existing Chapter 8.25 Solid Waste Collection and Disposal and Reenacting a New Chapter 8.25 Solid Waste and Collection and Disposal Section 8.25.10 to Section 8.25.240. B. Contract No. FY2010 -30 Solid Waste Collection Contract. 13. NEW BUSINESS A. Contracts — None. Meeting broadcast live over radio station KMXT 100.1 FM and Cablevision station 12. Citizens' Comments and Public Hearing Numbers: Toll Free (800) 478 -5736 and Local 486 -3231. Page 1 of 2 B. Resolutions 1. Resolution No. FY2010 -31 Opposing "An Initiative Creating an Alaska Anti - Corruption Act" Which Will Be on the Alaska Primary Election. C. Ordinances for Introduction - None. D. Other Items - None. 14. CITIZENS' COMMENTS (Limited to Three Minutes per Speaker) 15. ASSEMBLY MEMBERS' COMMENTS 16. ADJOURNMENT 17. INFORMATIONAL MATERIALS (No Action Required) A. Minutes of Other Meetings 1. Fire Protection Area No. 1 Board Regular Meetings of January 15 and February 16, 2010. 2. Parks and Recreation Committee Meeting of March 9, 2010. 3. Planning and Zoning Commission Meeting of February 17, 2010. B. Reports 1. Kodiak Island Borough School District Board of Education Regular Meeting Summary of March 22, 2010. 2. Kodiak Island Borough January 2010 and February 2010 Short Reports. Meeting broadcast live over radio station KMXT 100.1 FM and Cablevision station 12. Citizens' Comments and Public Hearing Numbers: Toll Free (800) 478 -5736 and Local 486 -3231. Page 2 of 2 TITLE: Ordinance No. FY2010 -08 Rezoning Lot 11A, U.S. Survey 3474 From C- Conservation To RNC -Rural Neighborhood Commercial. SUMMARY: KODIAK ISLAND BOROUGH AGENDA STATEMENT APRIL 15, 2010 REGULAR MEETING ITEM NO: 9.A The applicant, Norman and Janice Botz, desire to reestablish the Roads End Bar and Restaurant in Chiniak. This former business was at one time a grandfathered non - conforming use in a residential district. Kodiak Island Borough code 17.140.050G Nonconforming uses of structures and land states that non conforming uses that cease to exist for more than a year lose their grandfathered (non - conforming) status and "shall not thereafter be used except in conformance with the regulations of the district in which it is located ". Fortunately, the 2008 Comprehensive identifies this area of Chiniak, including the Botz parcel, for future Rural /Mixed Use Commercial /Residential use. This request for a rezone from C- Conservation to RNC —Rural Neighborhood Commercial is consistent with the comprehensive plan. 86 public hearing notices were mailed out on April 2, 2010, and responses will be provided to the Assembly at the public hearing. FISCAL NOTES: N/A Account No.: Amount Budgeted: Expenditure Required: APPROVAL FOR AGENDA: 4 RECOMMENDED MOTION: Move to adopt Ordinance No. FY2010 -08. Introduced by: Manager Gifford Requested by: CDD 1 Drafted by: CDD Director Cassidy 2 Introduced: 04/01/2010 Public Hearing: 04/15/2010 3 Adopted: 4 5 KODIAK ISLAND BOROUGH 6 ORDINANCE NO. FY2010 -08 7 8 AN ORDINANCE OF THE ASSEMBLY OF THE KODIAK ISLAND BOROUGH REZONING 9 LOT 11A, U.S. SURVEY 3474 FROM C- CONSERVATION TO RNC- RURAL 10 NEIGHBORHOOD COMMERCIAL 11 12 WHEREAS, the Roads End Bar and Restaurant operated successfully out at the end of 13 Chiniak Road on what is now known as Lot 11A, U.S. Survey 3474 for many years; and 14 15 WHEREAS, this establishment has been closed and the new owners desire to reestablish its 16 historical use; and 17 18 WHEREAS, the current zoning district provides for primarily residential uses and a commercial 19 bar /restaurant is prohibited in a residential zoning district; and 20 21 WHEREAS, the 2008 Kodiak Island Borough Comprehensive Plan Update has identified this 22 area of Chiniak for a future "Rural Mixed Use Commercial /Residential" node; and 23 24 WHEREAS, this request is consistent with the borough's comprehensive plan; and 25 26 WHEREAS, the commission held a properly noticed public hearing on this request and is 27 recommending that the Assembly approve the request to rezone this parcel from C- Conservation 28 to RNC- Rural Neighborhood Commercial. 29 30 NOW, THEREFORE, BE IT ORDAINED BY THE ASSEMBLY OF THE KODIAK ISLAND 31 BOROUGH THAT: 32 33 Section 1: This ordinance is not of a general and permanent nature and shall not become a 34 part of the Kodiak Island Borough Code of Ordinances; 35 36 Section 2: Lot 11A, U.S. Survey 3474 is rezoned from C- Conservation to RNC- Rural 37 Neighborhood Commercial. 38 39 Section 3: The findings of the Kodiak Island Borough Planning and Zoning Commission are 40 hereby confirmed as follows: 41 42 17.72.020 A. Findings as to the Need and Justification for a Change or 43 Amendment. 44 The rezoning of Lot 11A, U.S. Survey 3474 from C- Conservation Zoning District to Rural 45 Neighborhood Commercial would allow the property owner to re- establish a historical use 46 as a permitted use within the existing structure of the zoning code. 47 The rezoning of Lot 11A, U.S. Survey 3474 from C- Conservation Zoning District to Rural 48 Neighborhood Commercial would allow the property owner to expand amenities and 49 services, unencumbered by a "non - conforming" zoning designation. Kodiak Island Borough Ordinance No. FY2010 -08 Page 1 of 2 50 51 17.72.020 B. Findings as to the Effect a Change or Amendment would have on the 52 Objectives of the Comprehensive Plan. 53 The rezoning of Lot 11A, U.S. Survey 3474 from C - Conservation Zoning District to 54 Rural Neighborhood Commercial would serve to implement the objectives of the 2008 55 Comprehensive Plan Update of the Kodiak Island Borough relating to the Chiniak 56 community. 57 58 ADOPTED BY THE ASSEMBLY OF THE KODIAK ISLAND BOROUGH 59 THIS DAY OF 2010 60 61 62 KODIAK ISLAND BOROUGH 63 64 65 66 Jerome M. Selby, Borough Mayor 67 68 ATTEST: 69 70 71 72 Nova M. Javier, MMC, Borough Clerk 73 74 Kodiak Island Borough Ordinance No. FY2010 -08 Page 2of2 PUBLIC HEARING FORM Ordinance No. FY2010 -08 Rezoning Lot 11A, U.S. Survey 3474 Fro Ru al Neighborhood Commercial. This is in support of the rezone. ❑ This is in opposition of the rezone. ❑ Other comments. Name: \\n \AAA,o`or a.,f'S Cam,. c 9 Cca. Ack/In o 301330 018310 H0110808 1 O1OZ5iUdd Residence Address:`"( - 0 0 6 C \ rfr W y Mailing Address: `' C2G S C C O b p ( (� K l r 1 ' 9 (2 (S Comments: ` A ct4_,‘.t � p "C4AAa V' „ 44.1 `l \p c-k- ■()A,c L i/c 4./1;1 1 to. 0 07,-,,26„fr "jAk (1 ,327 -1 / 4 .■-/ Written comments may be submitted by email to niavier kodiakak.us, fax to 907 - 486 -9391, mail or hand delivered to the Borough Clerk's Office, 710 Mill Bay Road, Room 101, Kodiak, AK 99615 prior to 5 p.m. on Thursday, April 15, 2010. A public hearing will be held on Thursday, April 15, 2010 at 7:30 p.m. in the Borough Assembly Chambers, 710 Mill Bay Road, Kodiak, Alaska before the Kodiak Island Borough Assembly to hear comments on: Ordinance No. FY2010 -08 Rezoning Lot 11A, U.S. Survey 3474 From C- Conservation To RNC- Rural Neighborhood Commercial. If you do not wish to testify verbally, you may provide your comments in the attached public hearing form and fax it to (907) 486 -9391, Email to niavier(kodiakak.us or hand deliver to the Borough Clerk's Office, 710 Mill Bay Road, Room 101, Kodiak, AK 99615 prior to 5 p.m. on April 15, 2010. Comments favoring and opposing are encouraged. If you have any questions, please call 486 -9310. Attachments: • Public hearing form • Map • Ordinance No. FY2010 -08 Kodiak Island Borough Office of the Borough Clerk 710 Mill Bay Road Kodiak, Alaska 99615 Phone (907) 486 -9310 Fax (907) 486 -9391 njavier@kodiakak.us NOTICE OF PUBLIC HEARING Ordinance No. FY2010 -08 Rezoning Lot 11A, U.S. Survey 3474 From C- Conservation To RNC- Rural Neighborhood Commercial. This is in support of the rezone. ❑ This is in opposition of the rezone. ❑ Other comments. PUBLIC HEARING FORM Name: ©avN - 'e)ro c i e Residence Address: . 4- S (ASS . 3q 7 4 Mailing Address: ?.b • BO)C Z('j, (o APR 1 4 2010 Comments: �} woudr1_ loe 1.-1(ce See a reSSwraol erg air,- Written comments may be submitted by email to niaviera(kodiakak.us, fax to 907 - 486 -9391, mail or hand delivered to the Borough Clerk's Office, 710 Mill Bay Road, Room 101, Kodiak, AK 99615 prior to 5 p.m. on Thursday. April 15, 2010. A public hearing will be held on Thursday, April 15, 2010 at 7:30 p.m. in the Borough Assembly Chambers, 710 Mill Bay Road, Kodiak, Alaska before the Kodiak Island Borough Assembly to hear comments on: Ordinance No. FY2010 -08 Rezoning Lot 11A, U.S. Survey 3474 From C- Conservation To RNC- Rural Neighborhood Commercial. If you do not wish to testify verbally, you may provide your comments in the attached public hearing form and fax it to (907) 486 -9391, Email to niavierAkodiakak.us or hand deliver to the Borough Clerk's Office, 710 Mill Bay Road, Room 101, Kodiak, AK 99615 prior to 5 p.m. on April 15, 2010. Comments favoring and opposing are encouraged. If you have any questions, please call 486 -9310. Attachments: • Public hearing form • Map • Ordinance No. FY2010 -08 Kodiak Island Borough Office of the Borough Clerk 710 Mill Bay Road Kodiak, Alaska 99615 Phone (907) 486 -9310 Fax (907) 486 -9391 nj avier@kodiakak.us NOTICE OF PUBLIC HEARING PUBLIC HEARING FORM Ordinance No. FY2010 -08 Rezoning Lot 11A, U.S. Survey 3474 From C- Conservation To RNC- Rural Neighborhood Commercial. © This is in support of the rezone. ❑ This is in opposition of the rezone. E C j _ I Li APR 1 3 2010 Name: Jt.A sct v ►�jc�k _ ._ BOROUGH CLERK'S OFFICE Residence Address: Li 3 3 3 C h i at_ l 9 L 1,t.3cI Mailing Address: - &clie 5 575 CIA,' n (ctk Atc Comments: ❑ Other comments. 0 6,4„ , 04-2_ � Y Z t wvi 1t1 ; 5 C ' \ 5 i --. i i J (,/,4- c w e 41' C \ ' ,V lc c� �I -c 5 a 3 a( C C� +� } �^'C. �-' + -4- t �J z f'(-« y t (Z� U ^/ti�l^' bc. GK . W ci�n t C 11CQ [2 i c> g- b' cct (c fez v L''u) r V- � - - Written comments may be submitted by email to niavier(kodiakak.us, fax to 907 - 486 -9391, mail or hand delivered to the Borough Clerk's Office, 710 Mill Bay Road, Room 101, Kodiak, AK 99615 prior to 5 p.m. on Thursday, April 15, 2010. A public hearing will be held on Thursday, April 15, 2010 at 7:30 p.m. in the Borough Assembly Chambers, 710 Mill Bay Road, Kodiak, Alaska before the Kodiak Island Borough Assembly to hear comments on: Ordinance No. FY2010 -08 Rezoning Lot 11A, U.S. Survey 3474 From C- Conservation To RNC- Rural Neighborhood Commercial. If you do not wish to testify verbally, you may provide your comments in the attached public hearing form and fax it to (907) 486 -9391, Email to njavierAkodiakak.us or hand deliver to the Borough Clerk's Office, 710 Mill Bay Road, Room 101, Kodiak, AK 99615 prior to 5 p.m. on April 15, 2010. Comments favoring and opposing are encouraged. If you have any questions, please call 486 -9310. Attachments: • Public hearing form • Map • Ordinance No. FY2010 -08 Kodiak Island Borough Office of the Borough Clerk 710 Mill Bay Road Kodiak, Alaska 99615 Phone (907) 486 -9310 Fax (907) 486 -9391 njavier @kodiakak.us NOTICE OF PUBLIC HEARING 'TT PUBLIC HEARING FORM Ordinance No. FY2010 -08 Rezoning Lot 11A, U.S. Survey 3474 From C- Conservation To RNC- Rural Neighborhood Commercial. Vfl �1 Name: This is in support of the rezone. This is in opposition of the rezone. Other comments. J� L APR 9 2010 BOROUGH CLERK'S OFFICE yr / 6 cZ ( ma y Residence Address: Mailing Address: Comments: C- 671/: ,r 6 ?0`7 Written comments may be submitted by email to niavier(kodiakak.us, fax to 907 - 486 -9391, mail or hand delivered to the Borough Clerk's Office, 710 Mill Bay Road, Room 101, Kodiak, AK 99615 prior to 5 p.m. on Thursday. April 15, 2010. A public hearing will be held on Thursday, April 15, 2010 at 7:30 p.m. in the Borough Assembly Chambers, 710 Mill Bay Road, Kodiak, Alaska before the Kodiak Island Borough Assembly to hear comments on: Ordinance No. FY2010 -08 Rezoning Lot 11A, U.S. Survey 3474 From C- Conservation To RNC- Rural Neighborhood Commercial. If you do not wish to testify verbally, you may provide your comments in the attached public hearing form and fax it to (907) 486 -9391, Email to niavier(c .kodiakak.us or hand deliver to the Borough Clerk's Office, 710 Mill Bay Road, Room 101, Kodiak, AK 99615 prior to 5 p.m. on April 15, 2010. Comments favoring and opposing are encouraged. If you have any questions, please call 486 -9310. Attachments: • Public hearing form • Map • Ordinance No. FY2010 -08 Kodiak Island Borough Office of the Borough Clerk 710 Mill Bay Road Kodiak, Alaska 99615 Phone (907) 486 -9310 Fax (907) 486 -9391 nj avier@kodiakak.us NOTICE OF PUBLIC HEARING Ordinance No. FY2010 -08 Rezoning Lot 11A, U.S. Survey 3474 From C- Conservation To RNC- Rural Neighborhood Commercial. 0 0 Name: y This is in support of the rezone. This is in opposition of the rezone. Other comments. Residence Address: Mailing Address: Comments: 1 (X v\ au_ tor+ O t s - moo rt in e,, ciz) C a OA_ ime ry Q ac-rn mu_IA.;* PUBLIC HEARING FORM jh APR - 6 2010 J 1. C` BOROUGH CLERK'S OFFICE (0 7 4 4- G, e Q- F R Written comments may be submitted by email to njavier fax to 907 - 486 -9391, mail or hand delivered to the Borough Clerk's Office, 710 Mill Bay Road, Room 101, Kodiak, AK 99615 prior to 5 p.m. on Thursday, April 15, 2010. A public hearing will be held on Thursday, April 15, 2010 at 7:30 p.m. in the Borough Assembly Chambers, 710 Mill Bay Road, Kodiak, Alaska before the Kodiak Island Borough Assembly to hear comments on: Ordinance No. FY2010 -08 Rezoning Lot 11A, U.S. Survey 3474 From C- Conservation To RNC- Rural Neighborhood Commercial. If you do not wish to testify verbally, you may provide your comments in the attached public hearing form and fax it to (907) 486 -9391, Email to niavier a(�.kodiakak.us or hand deliver to the Borough Clerk's Office, 710 Mill Bay Road, Room 101, Kodiak, AK 99615 prior to 5 p.m. on April 15, 2010. Comments favoring and opposing are encouraged. If you have any questions, please call 486 -9310. Attachments: • Public hearing • Map • Ordinance No. form FY2010 -08 Kodiak Island Borough Office of the Borough Clerk 710 Mill Bay Road Kodiak, Alaska 99615 Phone (907) 486 -9310 Fax (907) 486 -9391 njavier @kodiakak.us NOTICE OF PUBLIC HEARING /Li APR - 6 2010 ri O, A public hearing will be held on Thursday, April 15, 2010 at 7:30 p.m. in the Borough Assembly Chambers, 710 Mill Bay Road, Kodiak, Alaska before the Kodiak Island Borough Assembly to hear comments on: Ordinance No. FY2010 -08 Rezoning Lot 11A, U.S. Survey 3474 From C- Conservation To RNC- Rural Neighborhood Commercial. If you do not wish to testify verbally, you may provide your comments in the attached public hearing form and fax it to (907) 486 -9391, Email to niavierModiakak.us or hand deliver to the Borough Clerk's Office, 710 Mill Bay Road, Room 101, Kodiak, AK 99615 prior to 5 p.m. on April 15, 2010. Comments favoring and opposing are encouraged. If you have any questions, please call 486 -9310. Attachments: • Public hearing form • Map • Ordinance No. FY2010 -08 Kodiak Island Borough Office of the Borough Clerk 710 Mill Bay Road Kodiak, Alaska 99615 Phone (907) 486 -9310 Fax (907) 486 -9391 njavier @kodiakak.us NOTICE OF PUBLIC HEARING PUBLIC HEARING FORM Ordinance No. FY2010 -08 Rezoning Lot 11A, U.S. Survey 3474 From C- Conservation To RNC- Rural Neighborhood Commercial. ❑ This is in support of the rezone. ❑ This is in opposition of the rezone. ❑ Other comments. Name: Residence Address: Mailing Address: Comments: Written comments may be submitted by email to niavier(kodiakak.us, fax to 907 - 486 -9391, mail or hand delivered to the Borough Clerk's Office, 710 Mill Bay Road, Room 101, Kodiak, AK 99615 prior to 5 p.m. on Thursday. April 15, 2010. I NA,I,,, I I,,,., .. II,.... VI A rac. Marcn 1 r, zu I u Current Location Request: A rezone investigation, according to KIBC 17.205.030. (Amendments and Changes), to consider a change of zoning for P & Z Case # 10 -014 Lot 11A, U.S. Survey 3474 from C - Conservation to RNC -Rura Neighborhood Commercial. Botz, Norman & Janice I TT 1 _____ 0 I ' s a• T Otr Kodiak Island Borough GIS System Ac' ' . S 0 1,150 2,300 4,600 6,900 9,200 Feet This map was prepared from the Kodiak Island Borough's GIS System. It is provided for the purpose of showing the general location of a property within the Kodiak Island Borough. This map does not represent a survey. More information about the mapping data can be obtained by contacting the Kodiak Island Borough IT Department at (907) 486 -9333. Public Hearing Item VI -A P&L March 1 (, ZU1U Kodiak Island Borough Zoning Map Community Development Department Current Zoning Request: A rezone investigation, according to KIBC 17.205.030.0 P & Z Case # 10 -014 (Amendments and Changes), to consider a change of zoning for Lot 11A, U.S. Survey 3474 from C- Conservation to RNC -Rural Neighborhood Commercial. Botz, norman & Janice loll 875 1,750 1 1 1 1 r Feet 3,500 1 Lot 11A USS 3474 Business Conservation Industrial Light Industrial Natural Use Zoning Legend Public Use Single Family Residential Two Family Residential Multi Family Residential Retail Business Rural Residential Rural Resi< Rural Resic Split Lot Zc This map was prepared from the Kodiak Island Borough's GIS System. It is provided for the purpose of showing the general location of a property within the Kodiak Island Borough. This map does not represent a survey. More information about the mapping data can be obtained by contacting the Kodiak Island Borough IT Department at (907) 486 -9333. e e 7E 1t '31 1 1tel 2 r LI II VI A Y &L M2f Cfl I !. LU I U NRCS_2004 Aerial P & Z Case # 10 -014 Botz, Norman & Janice Request: A rezone investigation, according to KIBC 17.205.030.0 (Amendments and Changes), to consider a change of zoning for Lot 11A, U.S. Survey 3474 from C- Conservation to RNC -Rural Neighborhood Commercial. Kodiak Island Borough GIS System This map was prepared from the Kodiak Island Borough's GIS System. It is provided for the purpose of showing the general location of a property within the Kodiak Island Borough. This map does not represent a survey. More information about the mapping data can be obtained by contacting the Kodiak Island Borough IT Department at (907) 486 -9333. • s River crea 'on tb tion Kalsin Bay Recreation Destination Mayflower Beach Recreation Destination 0 P, Recreation Destinatiov- D 5-ace minimum lot,size • Sw extend Roslyn Beach Recreation Destination ISTHMUS BAY CHINIAK BAY Silver Beach Recreation Destination 0 5-a re minimum lot size Cape Chiniak Recreation Destination ,' Sequel Point Recreation i ' /Destination c•..* IMMO 1 2Mles i 1 , 1 Kodiak Island Borough - Chiniak Area: Proposed Future Land Use Kodiaklsland BOROUGH f,mpreh'' Plan U U. ca.vo dn en ua . : Couura G� C.. M.u•.� le cn Cowan 01.111 Copan Conservation Ali Public Use Recreation/ Open Space Rural Residential (2 -acre minimum lots unless otherwise noted) Rural /Mixed Use - - - 17b Easement Commercial /Residential Source: Kodiak Island Borough GIS, 2006 c fD C N 5 cu - CD — <p N N o 3 o nvuIMn IoLLNIViV Dvrcvuvn - %,vmiviutrt 1 i uc u o n i nn1.:r.. 710 Mill Bay Rd., Room 205, KODIAK, AK 99615 -6398 (907) 486 -9363 - FAX (904486439% Item VI-A www.kib.co.kodiak.ak.us P&Z March 17, 2010 Applicant Information /V rm and J 4h /Ae. gob_ Property owner's name >�Q )( P arty owner's mailing addres r N in �G �2. f}- �� City 907- -otci Home phone I L t Agent's name (If applicable) PoP State Work Phone Zip E -mail Aar. 1 / • Agent's mailing address chin n r'k it 4-It l q /sr City State Zip 907 ite 3- nj b I-z. 6 1 c:i t2 Home phone Work Phone E -mail Addr. Property ID Number /s Property Information /M L(2 bel Legal Description J Current Zoning: C-O h S� ru��/ oil Applicable Comprehensive Plan: ehIf(J_ , r of Plan adoption: 7.0 b 9 Present Use of Property: res I tri .j Proposed Use of Property: rerG.ttwf /We /o d ca 6 /'i c' hgar) vatiX re5 oteift. (Note: Use additional sheets, if needed, to provide a complete description of the proposed request.) Applicant Certification I hereby certify as the property owner /authorized agent that this application for Planning and Zoning Commission review Is true and complete to the best of my knowledge and that it Is submitted in accordance with the requirements of the applicable Kodiak Island Borough Code, which includes a detailed site plan for variance and conditional use requests and which may include optional supporting documentation as Indicated below. Additional Narrative/History X As -built urvey Photographs w retite 4 prof - Property Owner's Signature 1-13 _/ate Authorized Agent's Signature" 1A development plan for one or more lots on which is shown the existing and proposed conditions of the lot, including topography, vegetation, drainage, flood plains, wetlands, and waterways; landscaping and open spaces; walkways; means of ingress and egress; circulation; utility services; structures and buildings; signs and lighting; berms, buffers, and screening devices; surrounding development; and any other information that reasonably may be required in order that an informed decision can be made by the approving authority. (Source: The New Illustrated Book of Development Definitions, ©1993 by Rutgers University) Maps Other 1 -13 - Code Section(s) Involved: Variance (KIBC 17.66.020) $250.00 Conditional Use Permit (KIBC 17.67.020.8) 3250.00 Other (appearance requests, site plan review, etc.) $150.00 V Zoning change from C.. to RAJC (KIBC 17.72.030 and 030.C)* STAFF USE ONLY PAYMENT VERIFICATION * -7.1 hange, f♦ ee Schedule: (pii• :MEE Assembly Resolution i _ .k4 July 1, 2005) * *4 _ - 7 .,1 *x4 Le q ..7k cress. -r 5350.00 1.76 Vt$00 to alt $750.1 5.01 16 40.011 S1.0011,00 40.01 acres or more $1,500.00 14 t botI 1 of to uss y7c( IR _:.. boar_ opet��ruoL La _ l� - U.5534/I1_ ._ _ b 249$ Dati Zao. c 0 2oo5 . 6 0 t ,4 -14 ‘4553 .._ Coo► _''Cl _ roh -- GO h�ti r to it . _ _ ' ifAAP IL_ r. 40. _ .c± . i% Q clAetk .. wv _ nal- iloweac . - Aa4. _fit. _ uo. r b sca .aa,r_ 0.6 f - _ - - - -..L' !1._ate , r. 119 L�`�'`� errt 3' Ado a" .— - ih, 4o h' i h- _. w 14V- - titsArL. — po r40. h .- t.- __I?'? des Tone- '�i+ti►�! w .. o C¢ 41_12 -. ah - lasikah _ L0 Pt roe4._ _._ s N.54e.iu„ R _ C l.oca-fee_(_ r.- w_ . �, ?rK . _ c4144_ _�¢a��rLC _ e! _ __As __Ifs_ _na _ i .. W. is 4*X.. t�nai !\-4At _ . Chikv_ heyi . ot_ b _por+.1o, _ p44 •v acv v,w� d _ _ 't ' COtIWt 1G 3 � - - . riA , C__ .la. - 2 -- h. , sr Ee_ alto _.,en o . -, at_rod_ tQQt Q , { a t t o ' c 1 , ° e M c i t k i h s res 1 nom/ 1 ''e. Ai s Public Hearing Item VI -A P &Z March 17, 2010 MEMORANDUM Public Hearing Item VI -A DATE: February 12, 2010 TO: Planning and Zoning Commission FROM: Community Development Department SUBJECT: Information for the March 17, 2010 Regular Meeting CASE: 10 -014 APPLICANT: Norman & Janice Botz AGENT: n/a REQUEST: A rezone investigation, according to KIBC 17.205.030.0 (Amendments and Changes), to consider a change of zoning for Lot 11A, U.S. Survey 3474 from C- Conservation to RNC -Rural Neighborhood Commercial. LOCATION: 43844 Chiniak Hwy ZONING: C - Conservation Zoning District (89) public hearing notices were mailed on February 25, 2010. Date of site visit: 1. Zoning History: The Kodiak Island Borough 1968 Comprehensive Plan did not address this area. Ordinance No. 77 -15 -0 rezoned all the lands within the corporate boundaries of the Kodiak Island Borough not previously addressed as C — Conservation. 2. Lot Size: 3.75 acres 3. Existing Land Use: Business 4. Surrounding Land Use and Zoning: North: Chiniak Highway ROW Use: Transportation corridor Zoning: C - Conservation Zoning District South: portion T29S R18W (Kodiak Island Borough) Use: Vacant / Undeveloped Zoning: C - Conservation Zoning District East: Lot 12 United States Survey 3474 Use: Single Family Residence Zoning: C - Conservation Zoning District West: Lot 10A United States Survey 3474 Use: Single Family Residence Zoning: C - Conservation Zoning District 5. Comprehensive Plan: The Kodiak Island Borough 2008 Comprehensive Plan Update identifies this particular area (if not specific parcel) as a "Rural /Mixed Use Case 10- 014 - /Staff Report Page 1 of 7 P & Z: March 17, 2010 Public Hearing Item VI -A Commercial /Residential" node in the proposed Future Land Use Section (Chp 11 pg 76). 6. Applicable Regulations: The following sections of Title 17 (Zoning) of the Borough Code and the Kodiak Island Borough Coastal Management Program are applicable to this request: KIBC 17.72.030 Manner of initiation. Changes in this title may be initiated in the following manner: A. The borough assembly upon its own motion; B. The planning commission upon its own motion; C. By petition of one or more owners of property within an area proposed to be rezoned. A petition shall be in the form of an application for a change in the boundary of a district, shall be filed in the community development office, be accompanied by the required fee and such data and information as may be necessary to assure the fullest practicable presentation of facts and shall set forth reasons and justification for proposing such change. KIBC 17.72.055 Submission to assembly. A. Within thirty days after the planning commission has acted favorably upon a proposed zoning change in accordance with the above provisions, a report with recommendations shall be submitted to the assembly together with the proposed ordinance. Such recommendations of the planning commission shall be advisory only and shall not be binding upon the assembly. When an ordinance has been forwarded to the borough assembly, the assembly shall act in accordance with this chapter and notice shall be issued as provided in Section 17.72.070, by the borough clerk. B. If the planning commission recommends denial of any proposed amendment, its action shall be final unless the initiating party, within ten days, files a written statement with the clerk requesting that the commission's action be taken up by the borough assembly. Chapter 17.95RNC — RURAL NEIGHBORHOOD COMMERCIAL DISTRICT 17.95.010 Description and intent. The RNC rural neighborhood commercial zoning district is intended to be applied in areas where public sewer and water service is not available. The rural neighborhood commercial zoning district is established for the purpose of providing for limited retail and personal service uses for the consumer population in the immediate neighborhoods in which such uses are located and limited opportunities to support the tourist industry. This district is not intended for those types of uses that will attract either the consumer population of large segments of the community or large volumes of traffic. It is intended to be compactly designed. Neighborhood commercial development in contiguous locations is encouraged to avoid uninterrupted linear commercial development, lessen traffic conflicts, and improve the safety and convenience of customers. Such consolidation may also economically provide for the appropriate screening and /or landscaping buffers needed to protect property values in adjacent residential areas. [Ord. 92 -13 §3, 1992. Formerly §17.22.010]. 17.95.020 Permitted principal uses and structures. The following land uses and activities are permitted in the rural neighborhood commercial district: A. Animal hospitals, veterinary clinics, and boarding kennels; B. Automobile service stations; C. Bed and breakfasts /motels; D. Churches; E. Commercial recreation facilities (e.g., racquetball courts, health clubs, ice rinks, etc.); F. Community halls and assembly areas; G. Parks and playgrounds; H. Restaurants and bars; I. Retail stores and service shops (e.g., beauty shops, clinics, grocery stores, professional offices, etc.); Case 10- 014 - /Staff Report Page 2 of 7 P & Z: March 17, 2010 Public Hearing Item VI -A J. Schools /daycare facilities; K. A single - family dwelling if located on a lot with a structure containing a permitted business use; L. Warehouses; M. Vacation homes; N. Bed and breakfasts; and 0. Motels. [Ord. FY2007 -08 -0 §12, 2006; Ord. 92 -13 §3, 1992. Formerly §17.22.020]. 17.95.030 Permitted accessory uses and structures. A. Accessory buildings. [Ord. 92 -13 §3, 1992. Formerly §17.22.030]. 17.95.040 Conditional uses. The following land uses and activities may be allowed by obtaining a conditional use permit in accordance with the provisions of Chapter 17.200 KIBC: A. Institutional facilities (e.g., hospitals, fire stations, group homes, correctional facilities, etc.); and B. Utility and service uses (e.g., substations). [Ord. 92 -13 §3, 1992. Formerly §17.22.040]. 17.95.050 Minimum lot area and width requirements. There is a minimum lot area requirement of two acres and a minimum width requirement of 180 feet. [Ord. 2001 -08 §2, 2001; Ord. 92 -13 §3, 1992. Formerly §17.22.050]. 17.95.060 Maximum lot coverage for structures. There is no maximum lot coverage requirement. [Ord. 92 -13 §3, 1992. Formerly §17.22.060]. 17.95.070 Maximum height of structures. The maximum height limit for structures in this district is 35 feet. [Ord. 92 -13 §3, 1992. Formerly §17.22.070]. 17.95.080 Setbacks from property lines. A. There is a required front yard setback of 25 feet; B. There is a required side setback of 15 feet; and C. There is a required rear setback of 20 feet. [Ord. 92 -13 §3, 1992. Formerly §17.22.080]. 17.95.090 Special district regulations. Comer lots are the preferred location for properties in this zoning district, especially those lots which front on arterial or collector streets, and which have adequate frontage for driveway separation from an intersection. [Ord. 92 -13 §3, 1992. Formerly §17.22.090]. 17.95.100 Performance standards. All permitted and conditional uses shall comply with the performance standards listed in this section. A. Groundcover. All areas not devoted to buildings, structures, surfaced drives, walks or parking areas shall be covered and maintained with grass, shrubbery, trees, rocks or gravel, or other suitable groundcover materials to minimize dust, erosion and sedimentation. B. Lighting. Any lighting uses for advertising, display, or security purposes shall not produce glare on a public highway or neighboring residential property. C. Screening. Where a business use is adjacent to a residential use or district, that business shall provide and maintain screening as approved by the commission. [Ord. 2001 -08 §2, 2001; Ord. 92 -13 §3, 1992. Formerly §17.22.100]. 17.95.110 Nonconformities. Regulations for nonconformities (lots, uses and structures) are contained in Chapter 17.140 KIBC. [Ord. 92 -13 §3, 1992. Formerly §17.22.1101. COASTAL MANAGEMENT APPLICABLE POLICIES 4.4 Enforceable Policies B. Coastal Development POLICY B -1: MULTIPLE USE a. Structures or dredged or fill material placed in coastal waters shall be designed to minimize the need for duplicative facilities. Case 10- 014 - /Staff Report Page 3 of 7 P & Z: March 17, 2010 Public Hearing Item VI -A Consistency: Yes. The project will not involve the placement of structures, dredge or flit material in coastal waters. b. This policy is established for the Coastal Development standard (11 AAC 112.200) subject use. It applies to all uses and activities related to siting of facilities in or adjacent to coastal waters and placement of dredged or fill material into coastal waters. Consistency: Yes. The project location is not adjacent to or within coastal waters. POLICY B -3: DREDGE AND FILL ACTIVITIES a. An applicant for a project that will place structures or discharge dredge or fill material into coastal waters must include in the project description measures that will limit the extent of direct disturbance to as small an area as possible. Consistency: Yes. The project location is not adjacent to or within coastal waters. b. This policy is established for the Coastal Development standard (11 AAC 112.200) subject use. It applies to all uses and activities related to placement of structures in or adjacent to coastal waters and placement of dredged or fill material into coastal waters. Consistency: Yes. The project location is not adjacent to or within coastal waters. C. Natural Hazards POLICY C -1: EROSION AND LANDSLIDES a. Proposed development and resource extraction activities in designated erosion hazard areas shall: 1. Minimize removal of existing vegetative cover, and 2. Stabilize soils and re- vegetate with native species for areas where development necessitates removal of vegetation, unless re- vegetation activities would cause more damage. Consistency: Yes. The project location is not located in a designated erosion hazard area. b. Subsection a applies to areas designated as erosion hazards under 11 AAC 114.250(b) as described in Section 4.5.2. Consistency: Yes. The project location is not located in a steep slope area or identified as within an erosion hazard area. D. Coastal Habitats and Resources POLICY D -5: WIND GENERATION AND BIRD HABITAT a. The applicant shall incorporate measures into the project description regarding the siting of wind generation projects to minimize mortality to birds. These measures shall include, but are not limited to, installation of turbines on the tallest towers practicable for the site, configuration of towers to reduce the likelihood of bird strikes, and use of tubular towers, fully enclosed nacelles or other appropriate technology that has been demonstrated to reduce bird mortality from wind turbines. Consistency: Yes. The project does not Involve a wind generation project. b. This policy applies to uses and activities related to the Energy Facilities Standard 11 AAC 112.230. Consistency: Yes. The project does not involve the development or construcction of anenergyrfadilty H. Recreation POLICY H -1: PROTECTION OF RECREATION RESOURCES AND USES a. On public lands and waters used for recreation activities within designated recreation areas or on private lands and waters within designated recreation areas where the landowner has granted formal permission for recreational activities, non - recreational projects and activities shall be located, designed, Case 10- 014 - /Staff Report Page 4 of 7 P & Z: March 17, 2010 constructed and operated to avoid significant adverse impacts to recreation resources and activities, including access and scenic views unless a comparable altemative recreational opportunity can be provided that would not decrease the quality of the recreation experience in another area. prhitite *WNW** *OW `anlyA46 . b. Access through water bodies shall be maintained. 1. Fences shall not be constructed across streams, 2. Bridges must be constructed at least four feet above the ordinary high water mark, 3. Structures, other than weirs, shall not impede travel by watercraft along waterways, and 4. Weirs shall be constructed to allow for small boat passage over or around the structures, and waming signs shall be placed at least 25 yards upstream of the weirs. C Amsted- crnear WI* c. This policy applies to areas designated for recreation under 11 AAC 114.250(c) as described in Section 4.5.1, and it applies to all uses and activities that could affect recreational values described in the resource inventory and analysis. op W104* I. Archaeological and Historic Resources POLICY I -1: CONSULTATION AND SURVEYS a. For projects within the historic and prehistoric designation area, the applicant shall submit with the consistency review packet an assessment of potential impacts to historic and prehistoric resources and a plan for the protection of those resources. As part of the assessment, the applicant shall consult with the KIB, tribal entities and the Alutiiq Museum. Case 10- 014 - /Staff Report afee' eped$Cally tUled or rese ` ` v _ r1 Page 5 of 7 Public Hearing Item VI -A b. This policy is established for areas designated for the study, understanding and illustration of history and prehistory under 11 AAC 114.250(i) as described in Section 4.5.4. It applies to all uses and activities that could affect these resources. tanotlocetediri POLICY 1 -2: RESOURCE PROTECTION a. For projects within the historic and prehistoric designation area, if previously undiscovered artifacts or areas of historic, prehistoric or archaeological importance are encountered during development, an artifact curation agreement will be developed between the landowner, appropriate state of federal preservation authorities, and the curation facility if artifacts are discovered on the project site. b. This policy is established for areas designated for the study, understanding and illustration of history and prehistory under 11 AAC 114.250(i) as described in Section 4.5.4. It applies to all uses and activities that could affect these resources. P & Z: March 17, 2010 Case 10- 014 - /Staff Report STAFF COMMENTS RECOMMENDATION Public Hearing Item VI -A Conformance with the Comprehensive Plan: The subject parcel has a long historical use as a restaurant / bar / lounge facility. It operated for many years burdened with the non - conforming use categorization following the application of the C - Conservation Zoning District in this area. The Kodiak Island Borough 2008 Comprehensive Plan Update identifies this particular area (if not specific parcel) as a "Rural /Mixed Use Commercial /Residential" node in the proposed Future Land Use Section (Chp 11 pg 76). From Chapter 11 Page77; "Several mixed use commercial /residential nodes would provide opportunities for small -scale commercial businesses. Only a portion of any mixed commercial /residential use area would be expected to be developed for commercial use (e.g., 40% or less). These areas would be intended for small local businesses to serve the Chiniak area and small scale recreation /tourist oriented businesses to take advantage of the scenic and recreational qualities of the area. Large -scale businesses would be discouraged or prohibited through local zoning regulations." Zoninq /use: The requested rezoning to Rural Neighborhood Commercial would allow the property owner to re- establish the historical use, and to offer new amenities and expanded services catering to the growing recreation / tourist segment of our local economy. Land Suitability: With 3.75 acres of total lot area, the parcel easily exceeds the zoning district minimum of 2 acres. Sloping gently from front (Chiniak Hwy) to rear, the parcel is well drained and should present few problems from a development perspective. Careful placement of new improvements should afford views for the enjoyment of guests and preserve and protect the night sky scene for adjoining residential owners. Recent Development trends in the area: No notable development trends have been identified as a result of recent investment activities. A slow but steady progression of small -scale investments catering to tourists, i.e., bed & breakfast operations, continues. Traffic impacts: Re- establishing the historical use may result in a slight increase in daytime weekend traffic if the local Kodiak population again perceives the revived accommodations as a daytrip destination. However, overall, minimal traffic impacts are expected as a result of an approved rezone. Staff recommends that the Commission forward this rezone request to the Kodiak Island Borough Assembly with a recommendation that it be approved Page 6 of 7 P & Z: March 17, 2010 Should the Commission agree with the staff recommendation, the appropriate motion is: Move to recommend that the Kodiak Island Borough Assembly approve the rezoning of Lot 11A, U.S. Survey 3474 from C- Conservation t4 RNC- Rural Neighborhood Commercial, subject to no conditions of approval, and to adopt the "Findings of Fact" in the staff report dated February 12, 2010 in support of this recommendation. CONDITION OF APPROVAL 1. None FINDINGS OF FACT Case 10- 014 - /Staff Report APPROPRIATE MOTION Public Hearing Item VI -A Section 17.72.020 states that the Commission shall incorporate the following criteria into their report to the Assembly: 17.72.020 A. Findings as to the Need and Justification for a Change or Amendment. The rezoning of Lot 11A from C - Conservation Zoning District to Rural Neighborhood Commercial would allow the property owner to re- establish a historical use as a permitted use within the existing structure of the zoning code. The rezoning of Lot 11A from C - Conservation Zoning District to Rural Neighborhood Commercial would allow the property owner to expand amenities and services, unencumbered by a "non- conforming" zoning designation. 17.72.020 B. Findings as to the Effect a Change or Amendment would have on the Objectives of the Comprehensive Plan. The rezoning of Lot 11A from C - Conservation Zoning District to Rural Neighborhood Commercial would serve to implement the objectives of the 2008 Comprehensive Plan Update of the Kodiak Island Borough relating to the Chiniak community profile. Page 7 of 7 P & Z: March 17, 2010 This notice is being sent to you because our records indicate you are a property owner /interested party in the area of the request. If you do not wish to testify verbally, you may provide your comments in the space below or in a letter to the Community Development Department prior to the meeting. Comments must be received by March 4, 2010 to be considered in the staff report. If you would like to fax your comments to us, our fax number is: (907) 486- 9396. If you would like to testify via telephone, please call in your comments during the appropriate public bearing section of the meeting. The local call -in telephone number is 486 -3231. The toll free telephone number is 1- 800 -478 -5736. One week prior to the regular meeting, on Wednesday, March 10, 2010, a work session will be held at 7:30 p.m. in the Kodiak Island Borough Conference Room ( #121). to review the packet material for the case. Kodiak Island Borough Code provides you with specific appeal rights if you disagree with the Commission's decision on this request. If you have any questions about the request or your appeal rights, please feel free to call us at 486 -9363. Chi Your Name: 71-"./ l, rI Mailing Address: 7 Z 55 c!./ N.44/e d0/ 7 / , 2 . 7 - O r i n L et qi c Your description: 1/.05 5 x property Comments: 711/ ak0.1 h1' h e- 1., 6 tal 4' /7 4 re 6 rS41.1 #- ./ /4 1 0 / the Z4 4-e .AD e0,4-4 . z e Y/ ep-c..e-ay. e VL i ei , L. �v-i,� tv R' �� 1 5 / il / 5 Z ?rev ar ae c e-, L i-2 us e • IP_\ L U L I MAR - 4 2010 J COMMUNITY DEVELOPMtnt UtrAttiMEN1 KODIAK ISLAND BOROUGH COMMUNITY DEVELOPMENT DEPARTMENT 710 Mill Bay Road, Kodiak, Alaska 99615 PUBLIC HEARING NOTICE A public hearing will be held on Wednesday, March 17, 2010. The meeting will begin at 7:30 p.m. in the Borough Assembly Chambers, 710 Mill Bay Road, Kodiak, Alaska, before the Kodiak Island Borough Planning and Zoning Commission, to hear comments if any, on the following request: CASE: APPLICANT: REQUEST: LOCATION: ZONING: Public Hearing Item VI -A 10 -014 Norman & Janice Botz A rezone investigation, according to KIBC 17.205.030.0 (Amendments and Changes), to consider a change of zoning for Lot 11A, U.S. Survey 3474 from C- Conservation RNC -Rural Neighborhood Commercial. 43844 Chiniak Highway C- Conservation This notice is being sent to you because our records indicate you are a property owner /interested party in the area of the request. If you do not wish to testify verbally, you may provide your comments in the space below or in a letter to the Community Development Department prior to the meeting. Comments must be received by March 4, 2010 to be considered in the staff report. If you would like to fax your comments to us, our fax number is: (907) 486- 9396. If you would like to testify via telephone, please call in your comments during the appropriate public hearing section of the meeting. The local call -in telephone number is 486 -3231. The toll free telephone number is 1- 800 -478 -5736. One week prior to the regular meeting, on Wednesday, March 10, 2010, a work session will be held at 7:30 p.m. in the Kodiak Island Borough Conference Room ( #121), to review the packet material for the case. Kodiak Island Borough Code provides you with specific appeal rights if you disagree with the Commission's decision on this request. if you have any questions about the request or your appeal rights, please feel free to call us at 486 -9363. 1� ^7 Your Name: HA/ fr L t_ 671_ Mailing Address: /3eX S 0 / Your property description: t o T 1 1.: -- / ) � efrt Hi L" c. t Comments: 7 - g / 5 l e g o /V - / S 6_0 r% 5/ S r eitT J ( 7 j z / - C v AI f ` & 5( yr , L- 4-A2 , . Svc/a-a -T po 5 /2--6 ON E, /T &.J4 s 4cL S i. -...ac 7 1 64-i e--- , 4 c / ► Id-' /mot -sj" �r/e /N o0 . /.c/ 7 i ( $ C . - c, - 7 ,&, / ECEOVE 6 - 3 -6 7 .. , „ 7 -Tr7 MAR - 4 2010 ,_) CASE: APPLICANT: REQUEST: LOCATION: ZONING: KODIAK ISLAND BOROUGH COMMUNITY DEVELOPMENT DEPARTMENT 710 Mill Bay Road, Kodiak, Alaska 99615 Public Hearing Item VI -A PUBLIC HEARING NOTICE A public hearing will be held on Wednesday, March 17, 2010. The meeting will begin at 7:30 p.m. in the Borough Assembly Chambers, 710 Mill Bay Road, Kodiak, Alaska, before the Kodiak Island Borough Planning and Zoning Commission, to hear comments if any, on the following request: 10-014 Norman & Janice Botz A rezone investigation, according to KIBC 17.205.030.0 (Amendments and Changes), to consider a change of zoning for Lot 11A, U.S. Survey 3474 from C- Conservation RNC -Rural Neighborhood Commercial. 43844 Chiniak Highway C- Conservation This notice is being sent to you because our records indicate you are a property owner/interested party in the area of the request. If you do not wish to testify verbally, you may provide your comments in the space below or in a letter to the Community Development Department pLi2r. to the meeting. Comments must be received by March 4, 2010 to be considered in the staff report. If you would like to fax your comments to us, our fax number is: (907) 486- 9396. If you would like to testify via telephone, please call in your comments during the appropriate public hearing section of the meeting. The local call -in telephone number is 486 -3231. The toll free telephone number is 1- 800 -478 -5736. One week prior to the regular meeting, on Wednesday. March 10, 2010, a work session will be held at 7:30 p.m. in the Kodiak Island Borough Conference Room ( #121), to review the packet material for the case. Kodiak Island Borough Code provides you with specific appeal rights if you disagree with the Commission's decision on this request. If you have any questions about the request or your appeal rights, please feel free to call us at 486 -9363. n I Your Name: Oav 1 A l ( Mailing Address: 3X 5sz / Kyita k Your r ' + P Warty description: �J� � 7 � G ✓L Ct.� � t.0''/ Comments: We. tale ZV Owvt of orv'i + Zj a.v ce '?)ot2 -for 3r) kf ears . tGlei are hard wo r tq a.p►d arc apt asset t +he cony . •1 mtmZ We sirr porgy - 1-{n.Pwt IA -fine 1 zone rertest P r 1 , _ L- t, C 1 V h , _., NT DEPARI;;;c': , PUBLIC HEARING NOTICE A public hearing will be held on Wednesday, March 17, 2010. The meeting will begin at 7:30 p.m. in the Borough Assembly Chambers, 710 Mill Bay Road, Kodiak, Alaska, before the Kodiak Island Borough Planning and Zoning Commission, to hear comments if any, on the following request: CASE: APPLICANT: REQUEST: LOCATION: ZONING: KODIAK ISLAND BOROUGH COMMUNITY DEVELOPMENT DEPARTMENT 710 Mill Bay Road, Kodiak, Alaska 99615 Public Hearing Item VI -A 10 -014 Norman & Janice Botz A rezone investigation, according to KIBC 17.205.030.0 (Amendments and Changes), to consider a change of zoning for Lot 11A, U.S. Survey 3474 from C- Conservation to RNC -Rural Neighborhood Commercial. 43844 Chiniak Highway C- Conservation This notice is being sent to you because our records indicate you are a property ownerlinterested party in the area of the request. If you do not wish to testify verbally, you may provide your comments in the space below or in a letter to the Community Development Department ur to the meeting. Comments must be received by March 4, 2010 to be considered in the staff report. If you would like to fax your comments to us, our fax number is: (907) 486- 9396. If you would like to testify via telephone, please call in your comments during the appropriate public hearing section of the meeting. The local call -in telephone number is 486 -3231. The toll free telephone number is 1- 800 -478 -5736. One week prior to the regular meeting, on Wednesday, March 10, 2010, a work session will be held at 7:30 p.m. in the Kodiak Island Borough Conference Room ( #121), to review the packet material for the case. Kodiak Island Borough Code provides you with specific appeal rights if you disagree with the Commission's decision on this request. If you have any questions about the request or your appeal rights, please feel free to call us at 486 -9363. • Your Name:/ f/C'/SWAIZ ✓l✓# 47W hGi'd Mailing Address:yPiORDX,62r3.r e f /gd Your property description: y,2 "7 Y C1�/WI 9 'y Comments: v 2 fes094'l / 7` e•9 / t ead/JG —ii. Gf7 z/�r /•,Z grES - . '- %,..,...0771.e. !A. /' —4 4..47,Y I . a a�ti,a0.r i-' . /1.. t,7`.ea 4 t 0j,/ ;*1,1.B■OJA a C ,. A /I /,e1/." -�'2/ 4 %'1 , <.fe /.L .,. •1 /i .O. i . —, ' iuz I — ••— , /L -t_ i L t s/ /lL il,. Oat/a/ ,0j* .1i2. L .ae rf v . A76 -,t ifs -_ feet. 1: ,,t ' -fligo,ff.4rn ..l40,.he G aii..li.�/.z C 9in� ._l e..„i3 . ./i97.?? £ 72�..L .,.. 2z.' dllif._ �yyy��y --4,..,_._„... _- - _ ,,� ./ ,sir/' ,�r/F. : `� d ./,_ /� -/ _./.- li2a2f&_ . 4 0 - _..! ✓_ G- .L:• 4 >:'. -._ Ai ,,,,. ..i /L t .'.ir /, // i '._..L., • L, 41 .% '1i /,‘ 1 /. 1 hi, COMMUNi1Y MAR 1 0 2010 CASE: APPLICANT: REQUEST: LOCATION: ZONING: KODIAK ISLAND BOROUGH NITY DEVELOPMENT DEPARTMENT 710 Mill Bay Road, Kodiak, Alaska 99615 BLIC HEARING NOTICE Public Hearing Item VI -A DAV1lu9b1110061111#4141 be held on Wednesday, March 17, 2010. The meeting will begin at 7:30 p.m. n1 thy Buiuug Assembly Chambers, 710 Mill Bay Road, Kodiak, Alaska, before the Kodiak Island Borough Planning and Zoning Commission, to hear comments if any, on the following request: 10-014 Norman & Janice Botz A rezone investigation, according to KIBC 17.205.030.0 (Amendments and Changes), to consider a change of zoning for Lot 11A, U.S. Survey 3474 from C- Conservation to RNC -Rural Neighborhood Commercial. 43844 Chiniak Highway C- Conservation PUBLIC HEARINGS A) Case 10 -014. Request a rezone investigation, according to KIBC 17.205.030.0 (Amendments and Changes), to consider a change of zoning for Lot 11A, U.S. Survey 3474 from C- Conservation g RNC -Rural Neighborhood Commercial. The applicants are Norman & Janice Botz and the zoning is C- Conservation. Cassidy stated this is a request for a rezone from Conservation to Rural Neighborhood Commercial. This effort seeks to reestablish the Road's End Restaurant and Bar. It's sort of a historic and grandfathered use and it's also called a non conforming use and when a non conforming use ceases to exist for a year it loses its grandfather rights, it loses it non conforming status so Mr. Botz has requested a rezone from a residential area to a commercial use that is consistent with the Comp Plan for the Chiniak area and because of that staff is recommending approval. COMMISSIONER JANZ MOVED to recommend that the Kodiak Island Borough Assembly approve the rezoning of Lot 11A, U.S. Survey 3474 kapi C- Conservation RNC -Rural Neighborhood Commercial, subject to no conditions of approval, and to adopt the "Findings of Fact" in the staff report dated February 12, 2010 in support of this recommendation. The public hearing was opened and closed: There was no public testimony given. Brief discussion FINDINGS OF FACT 17.72.020 A. Findings as to the Need and Justification for a Change or Amendment. The rezoning of Lot 11A from C - Conservation Zoning District 14 Rural Neighborhood Commercial would allow the property owner to re- establish a historical use as a permitted use within the existing structure of the zoning code. The rezoning of Lot 11A from C - Conservation Zoning District to Rural Neighborhood Commercial would allow the property owner to expand amenities and services, unencumbered by a "non- conforming" zoning designation. 17.72.020 B. Findings as to the Effect a Change or Amendment would have on the Objectives of the Comprehensive Plan. The rezoning of Lot 11A from C - Conservation Zoning District 14 Rural Neighborhood Commercial would serve to implement the objectives of the 2008 Comprehensive Plan Update of the Kodiak Island Borough relating to the Chiniak community. ROLL CALL VOTE ON MOTION CARRIED UNANIMOUSLY e 10 -015. Request a rezone investigation, according to KIBC 17.20 .B (Ame . ents and Changes), to consider the development of new zo ' :: standards, either by a = I ' ing an existing zoning district or deve i g a new zoning classification, for p . le application to a 67,763 area generally located around Karluk Lake and in ' rluk River dr • ' ge and which may be referred to as Interim Conveyance No. 117 un ' aska Native Claim Settlement Act, case file No. AA- 6677 -A, recorded : ook , age 875, et seq., Kodiak Recording District. The applicants the Planning & Zo . Commission. The location is generally locate . • and Karluk Lake and in the Kar ; 'ver Drainage and the zoning is nervation. 3/17/2010 P&Z Minutes Page 3 of 8 HOLY SPIRIT ASSOCIATION 4 W. 43RD ST NEW YORK, NY 10036 BRENT MCCORMICK P.O. BOX 941 KODIAK, AK 99615 JEFFREY RANDALL 91 -1022 KAIHOHONU ST EWA BEACH, HI 96706 ERNEST M SCHEIDLER PO BOX 8371 KODIAK, AK 99615 KJR LIVING TRUST PO BOX 744 KODIAK, AK 99615 ERNEST SUAZO PO BOX 5553 KODIAK, AK 99615 KODIAK ISLAND BOROUGH 710 MILL BAY RD KODIAK, AK 99615 GEORGE GARCIA PO BOX 8565 KODIAK, AK 99615 DEBRA K. NIELSEN PO BOX 8381 KODIAK, AK 99615 PTI COMMUNICATIONS TU OF THE NORTHLAND C/O STEPHEN S ASHWORTH 600 TELEPHONE AVE MS #8 ANCHORAGE, AK 99503 LEISNOI, INC 2713 N. 63RD ST MESA, AZ 85215 KATHLEEN WYNNE ETAL 477 CURLEW WAY KODIAK, AK 99615 ALASKA DIVERSIFIED INC 960 SE HWY 101 #A184 LINCOLN CITY, OR 97367 DAVID ODELL PO BOX 5589 CHINIAK, AK 99615 MARK & ALICE JAMISON PO BOX 5615 KODIAK, AK 99615 LAWRENCE MALLOY 315 UPPER MILL BAY RD KODIAK, AK 99615 WILLIAM CATELLI 183 W. ANDERSON RD SEQUIM, WA 98382 RICHARD MACINTOSH 910 STELLER WAY KODIAK, AK 99615 TALL PINES HOLDINGS, LTD 3473 MILDRED DR FALLS CHURCH, VA 22042 DONALD WERBE PO BOX 8636 KODIAK, AK 99615 JOHN FIORENTINO PO BOX 485 KODIAK, AK 99615 DALE RICE LIVING TRUST 10746 BELLS FLATS RD KODIAK, AK 99615 JOHN SEVIER 10216 35TH LANE S.E. OLYMPIA, WA 98513 JOHN WILLIAMS 4445 SE RURAL PORTLAND, OR 97206 HELEN HALL TRUST 2647 HAVITUR WAY ANCHORAGE, AK 99504 JOSEPH ERWIN PO BOX 5542 CHINIAK, AK 99615 JOAN BRODIE PO BOX 296 KODIAK, AK 99615 VIRGINIA SEAMAN P O BOX 5514 CHINIAK, AK 99615 RANDY GILBERT ETAL PO BOX 1680 KODIAK, AK 99615 ERIK LEONNIG PO BOX 5581 CHINIAK, AK 99615 PETER HANLEY ETAL R SCOTT BONNEY HENRY PENNINGTON 16430 VIRGO AVE PO BOX 5524 P 0 BOX 5570 ANCHORAGE, AK 99516 CHINIAK, AK 99615 CHINIAK, AK 99615 TERESA D STONE PO BOX 5550 CHINIAK, AK 99615 WILLIAM APPLEBEE PERRY PAGE JOHN MILLER PO BOX 5566 PO BOX 578 PO BOX 5607 CHINIAK, AK 99615 KODIAK, AK 99615 KODIAK, AK 99615 DAVID APPLEBEE SR PO BOX 5569 CHINIAK, AK 99615 JANE WILLIAMS - WHEELER ETAL PO BOX 5601 CHINIAK, AK 99615 DEBBIE BERGEN - HENDERSON ETAL DAVID HENDERSON PO BOX 5548 CHINIAK, AK 99615 RICHARD KETCHUM P.O. BOX 5555 CHINIAK, AK 99615 WALLE KONING P 0 BOX 5565 CHINIAK, AK 99615 BETTY REID P.O. BOX 713 KODIAK, AK 99615 ERIC HANSEN ETAL PO BOX 1482 KODIAK, AK 99615 ROBERT RUSSELL ETAL SUSAN BAKER PO BOX 5575 CHINIAK, AK 99615 JOHN WHEELER PO BOX 5601 CHINIAK, AK 99615 JONATHAN EDWARDS ETAL P 0 BOX 8905 KODIAK, AK 99615 AARON BONNEY PO BOX 5515 KODIAK, AK 99615 TIMOTHY DEPLAZES PO BOX 5602 CHINIAK, AK 99615 JAMES VAN ATTA 3183 MONASHKA BAY RD KODIAK, AK 99615 ROBERT ROUTZAHN 1619 LARCH ST KODIAK, AK 99615 THOMAS DINNOCENZO PO BOX 3045 KODIAK, AK 99615 GEORGE RIETH 218 CENTER AVE. STE. B KODIAK, AK 99615 HANS REDINGER PO BOX 6729 SHERIDAN, WY 82801 VICKI HESTER PO BOX 5522 CHINIAK, AK 99615 ROBERT F HAPP PO BOX 5556 KODIAK, AK 99615 ERNEST CAMERON ERIC SCHMIDT PETER RESOFF 414 HILLBERG AVE P.O. BOX 5504 P.O. BOX 272 BROCKTON, MA 02301 CHINIAK, AK 99615 KODIAK, AK 99615 MICHAEL SWEENEY ETAL PO BOX 9046 KODIAK, AK 99615 JAMES BALAMACI RICHARD WOOD NELLIE TRAVIS P 0 BOX 100855 PO BOX 5535 P.O. BOX 5528 ANCHORAGE, AK 99510 -0855 CHINIAK, AK 99615 CHINIAK, AK 99615 JOHN BUTLER P.O. BOX 2610 KODIAK, AK 99615 ROBERT MURPHY 408 LILLY DR KODIAK, AK 99615 ALANA TOUSIGNANT MARY SYMONOSKI TOMIO DEMURA P.O. BOX 5547 1517 LARCH ST 1519 YANOVSKY ST CHINIAK, AK 99615 KODIAK, AK 99615 KODIAK, AK 99615 ORVILLE VERLANIC JR ETAL PO BOX 1122 THOMPSON FALLS, MT 59873 JOHN GUNDERSEN 25 REINHEIMER RD MONROE, NY 10950 FMB PROPERTIES, LLC 2695 SPRUCE CAPE RD KODIAK, AK 99615 KATHERINE SARGENT ETAL 6630 SNOWBERRY LOOP #25 ANCHORAGE, AK 99518 MICHAEL PATTERSON PO BOX 5603 CHINIAK, AK 99615 THOMAS SWEENEY ETAL PO BOX 9046 KODIAK, AK 99615 EDWIN H CHRISTMAN PO BOX 5513 CHINIAK, AK 99615 ROY ECKLUND FAMILY TRUST P.O. BOX 146 KODIAK, AK 99615 DAVID URE PO BOX 2361 KODIAK, AK 99615 NORTHLAND RANCH INC P.O. BOX 2376 KODIAK, AK 99615 ALAN AUSTERMAN 401 LIGHTFOOT AVE KODIAK, AK 99615 TONY PIRAK ETAL 2655 TURNER LANE KODIAK, AK 99615 CAROLYN MULLENIX ETAL PO BOX 788 11162 USHWY12 RANDLE, WA 98377 -0788 MARY BROWN PO BOX 5574 CHINIAK, AK 99615 WILLIAM ZIMMERMAN PO BOX 2261 KODIAK, AK 99615 JON BOTZ PO BOX 577 KODIAK, AK 99615 JON STRATMAN PO BOX 2376 KODIAK, AK 99615 PATTERSON JOINT LIVING TRUST P 0 BOX 5545 CHINIAK, AK 99615 TITLE: Ordinance No. FY2010 -07 Amending the Kodiak Island Borough Code of Ordinances Title 8 Health and Safety by Repealing the Existing Chapter 8.25 Solid Waste Collection and Disposal and Reenacting a New Chapter 8.25 Solid Waste Collection and Disposal Section 8.25.10 to Section 8.25.240. SUMMARY: The existing Solid Waste Collection and Disposal code was put in place in 1986 that reflected the solid waste collection contract and disposal requirements at the landfill. Staff determined the need to bring it into compliance with the modified solid waste collection contract and disposal requirements at the landfill and establishes policies and procedures to effectively provide enforcement. The old KIBC 8.25 is being repealed in its entirety and a new Chapter 8.25 is being established. Staff research and proposal considered Alaska Statutes, codes from other municipalities, and expertise from an attorney specializing in solid waste. The Borough Attorney has reviewed this ordinance for compliance. A substituted version of the ordinance is attached based on the changes suggested by the Borough Attorney. Staff asks that, after review, the Assembly consider the adoption of this ordinance. FISCAL NOTES: Account No.: Amount Budgeted: Expenditure Required: APPROVAL FOR AGENDA: KODIAK ISLAND BOROUGH AGENDA STATEMENT APRIL 15, 2010 REGULAR MEETING RECOMMENDED MOTION: Move to adopt Ordinance No. FY2010 -07. ITEM NO: 12.A 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 WHEREAS, and 44 Sections: 45 8.25.010 Policy and purpose. 46 8.25.020 Definitions. 47 8.25.030 Solid waste colloction and disposal service requirod. 48 49 8.25.0/15 Services available. Kodiak Island Borough KODIAK ISLAND BOROUGH ORDINANCE NO. FY2010 -07 Introduced by: Requested by: Drafted by: Introduced: Public Hearing: Postponed: Adopted: AN ORDINANCE OF THE ASSEMBLY OF THE KODIAK ISLAND BOROUGH AMENDING THE KODIAK ISLAND BOROUGH CODE OF ORDINANCES TITLE 8 HEALTH AND SAFETY BY REPEALING THE EXISTING CHAPTER 8.25 SOLID WASTE COLLECTION AND DISPOSAL AND REENACTING A NEW CHAPTER 8.25 SOLID WASTE COLLECTION AND DISPOSAL SECTION 8.25.10 TO SECTION 8.25.240 the existing Solid Waste Collection and Disposal code was put in place in 1986; Borough Assembly Borough Manager /Staff Env. Spec. Mitchell 03/04/2010 04/01/2010 04/15/2010 WHEREAS, staff determined the need to bring the Solid Waste Collection and Disposal code into compliance with the modified solid waste collection and disposal services; and WHEREAS, the existing KIBC 8.25 is being repealed in its entirety and a new Chapter 8.25 is being established. The new chapter includes policies that reflect the modified solid waste collection and disposal services, and establishes p1' and procedures to effectively provide enforcement; and WHEREAS, staff research and proposal considered A aska Statutes, codes from other municipalities, and expertise from an attorney specializing in solid waste; and WHEREAS, this ordinance was also reviewed by the Borough Attorney for compliance. NOW, THEREFORE, BE IT ORDAINED BY THE ASSEMBLY OF THE KODIAK ISLAND BOROUGH THAT: Section 1: This ordinance is of a general and permanent nature and shall become a part of the Kodiak Island Borough Code of Ordinances; Section 2: The Kodiak Island Borough Code of Ordinances Title 8 Health and Safety, Chapter 8.25 Solid Waste Collection and Disposal is hereby repealed in its entirety as follows: Ordinance No. FY2010 -27 Page 1 of 19 50 51 52 53 54 55 56 57 8.25.050 Schodulo of rates. 8.25.055 Vacancy. 8.25.060 Solid waste storago and containors. 8.25.065 Sorvico roquosts, billing and colloction. cement for collection. 8.25.090 Gonoral conditions of service. ity and sanitary landfill. 58 59 60 61 62 91 92 93 94 95 96 97 :•. 1- ee-: Formorly §8.20.0101. 63 64 65 66 67 68 "Haul' moans to transport oithor personally or by us of the sorvices of another individual 69 70 71 72 state of Alaska; 73 "Homo business" moans any business oporated from a building devoted primarily to residential 74 purpoces and occupied by the proprietor or one or moro employees of the business, the 75 operation of which bu ' mf roquirec a lico e or permit issued by the state or federal 76 government; 77 78 79 80 81 82 moving; 83 84 flowing; 85 86 a primary generating source (such as a residence or business) to a place of solid waste disposal; 87 88 89 90 "Director" m ans the rnanagor or his designee; "Solid waste storago" means tho interim containment of solid waste, in an approved manner, ollection and disposal. [Ord. 98 16 §2, 1998; Ord. 86 39 0 §2, • 1986. Formerly §8.20.020]. solid waste collection and uce tho system of solid waste disposal provided by the borough. All solid waste generated within the borough in the area outsido cities and within the city of pted in writing by the financo diroctor, be disposed of by delivory to Kodiak Island Borough f this chaptor to reg -e storage, collection, Ordinance No. FY2010 -07 Page 2 of 19 196 197 198 199 200 201 202 203 204 205 206 227 228 229 230 231 232 233 234 235 236 237 238 239 240 241 242 243 244 245 gallons, securely tied and unbroken. The contents of each bag shall not weigh more than 30 pounds; • s, and a maximum loaded weight of 60 pounds. Cans shall be tapered outward toward the top and so loaded that the contents will readily fall from the container when the lid is removed and the can is inverted. The cans shall be equipped with handles that aro asily gripped the top of the can and hugs tight to the sido of the can when removed from the top of the can. 207 C. Bulky items of trash may be secured in tied bundles not over 15 inches in diameter, 36 208 209 210 211 212 213 214 215 216 217 218 219 220 221 222 store solid wastes for collection purposes, except in a olei an and s anitary manner and in 223 224 225 226 D. Ashes, soot, kitty litter, excrement, and other objectionable and obnoxious material shall be placed in securely tied plastic bags and shall not be placed looso in cans; be stored in containers or locations which exclude c, cats, rats, rain, and snow and shall be accordance with all other; applicable federal, state and municipal statutes, ordinances, rules, and A. Each person making an initial request for collection service shall complete, sign, and submit premises to be served, the type of service, the address to which billing shall be sent, and such B. Billing for corvice will normally—be in the sustomor's hands prior to the tenth of the by the city of Kodiak, thc borough, or by the contractor performing the service on behalf of the other borough services in an itemized billing setting forth the charge for each service provided. advance. Payments for garbage collection service that are not timely made shall be subject to late charges as outlined in KIBC 13.05.190. D. If the borough determines that a person applying for service, who is not the owner of the premises to be served, has not established credit in thc community sufficient to crcaato a requested. The deposit shall be retained by thc borough for a period of ono year, after which it Kodiak Island Borough Ordinance No. FY2010 -07 Page 5 of 19 246 247 248 249 250 251 252 253 254 255 256 Formerly §8.20.065]. 257 258 259 260 261 262 263 264 265 266 267 268 269 270 271 272 273 274 275 276 277 278 279 280 281 282 283 284 285 286 287 288 289 290 291 292 293 will be returned on a request of the person making the deposit if a record of timely payment has not earn interest during tho period the funds arc r . E. Every charge to a porson made by the borough in connection with garbage collection, to include, but not be limited to, residential can or bag service, residential carry out service, residential dumpster service, commercial bag service, and commercial dumpster service, been levied or asset as a property tax. The Tien may bo foreclosed by the borough in the e §8.20.070]. 1996; Ord. 95 15 §4, 1995; Ord. 91 07 §2, 1991; Ord. 91 07 §2, 1991; Ord. 86 52 0 §3, 1086. A. Except as provided in this chapter: i ers aro placed or maintained in racks for collection, the racks shall be 2. Covors for racks than be hinged or sliding, shall have no latches, and shall- be 4. If racks aro utilized by adjacent premises, the racks shall be located next to each other near the common boundary line of the two properties unless prevented by physical obstructions; and C. Items to be collectod shall be placed within five feet of the routc of the collection vehicle and D. If the premises are adjacent to more than one street or alloy, the collection point for all be of a firm acccrcible route, free from obstacles and obstructions. [Ord. 86 52 0 §1, 1986: Ord. 86 30 0 §2, 1086. Formerly §8.20.080]. Kodiak Island Borough Ordinance No. FY2010 -07 Page 6 of 19 294 295 296 297 298 299 300 301 302 §2, 1986. Formerly §8.20.090]. 303 304 305 306 307 308 309 310 311 312 313 314 315 of in a manner that is unnecessarily offensive to any perscol-e-F-p-FGpe-Ftl road shocks or other normal conditions. C. Vehicles used for the collection of garbage, rubbish, and trash shall be landfill for the disposal of garbage, rubbish, and trash. B. No person may deposit or dispose of any material in do baler facility maintained by tho - =- 52 0 §5, 1986. Formerly §8.20.100J. Section 3: Chapter 8.25 SOLID WASTE COLLECTION AND DISPOSAL 316 8.25.010 Purpose 317 8.25.020 Definitions 318 8.25.030 Construction 319 8.25.040 Solid waste accumulation and prevention of nuisance 320 8.25.050 Litter 321 8.25.060 Solid waste collection service 322 8.25.070 Solid waste storage and set -out 323 8.25.080 Solid waste discard 324 8.25.090 Billing and collection 325 8.25.100 Transportation 326 8.25.110 Disposal of solid waste 327 8.25.120 Disposal of hazardous and toxic wastes 328 8.25.130 Prohibition on burning of solid waste 329 8.25.140 Solid waste handling services 330 8.25.150 General conditions of service 331 8.25.160 Prohibition of scavenging 332 8.25.170 Ownership 333 8.25.180 Baler facility and sanitary landfill 334 8.25.190 User fee schedule 335 8.25.200 Prohibited disposal 336 8.25.210 Applicability of federal, state, and local solid waste law 337 8.25.220 Administration, implementation, and enforcement 338 8.25.230 Enforcement officer 339 8.25.240 Violations, enforcement actions, and remedies The Kodiak Island Borough Code of Ordinances Title 8 Health and Safety, Chapter 8.25 Solid Waste Collection and Disposal is hereby reenacted as follows: 340 8.25.010 Purpose. As authorized by AS 29.35.210(a)(4), the purpose of this chapter is to 341 regulate the management of municipal solid waste, including storage, collection, processing, 342 recovery, and disposal of solid waste, for the following reasons: 343 1. to protect the public safety, health, and welfare of the people of the borough; Kodiak Island Borough Ordinance No. FY2010 -07 Page 7 of 19 344 2. to protect, preserve, and enhance the environment of the people of the borough; and 345 3. to provide fiscally responsible solid waste management. 346 347 8.25.020 Definitions. In this chapter, each of the following terms has the respective 348 corresponding meaning: 349 "Bear Cart" means a cart designed to be resistant to opening by bears. 350 351 "Bin" means a receptacle for storing solid waste that is picked up with front end loading vehicles, 352 such as those having a three to eight -yard capacity, sometimes referred to as a "dumpster ". 353 354 355 356 357 1. furniture, including metal desks and storage cabinets; 358 2. pianos and organs; 359 3. televisions; 360 4. large appliances, including 361 stoves; 362 5. toys, bikes, and dismantled swing sets; 363 6. lawn mowers and snow blowers with no gas or oil in them, up to four auto or pickup tires 364 per customer each calendar month, with rims removed; and 365 7. any item, other than lumber, that can be cut or broken down meeting the following 366 requirements: 367 a. not longer than four feet in length; and 368 b. weighing no more than 70 pounds. 369 370 "Bulky items" does not mean the following: 371 1. material generated at non - residential premises, including commercial business operations; 372 2. bundled yard waste, branches; 373 3. sod, soil, and rock; 374 4. broken concrete and asphalt; 375 5. brick, block, and stone; 376 6. railroad ties Or similar type of retaining wall timbers; 377 7. remodeling debris, including shingles; 378 8. carpeting; 379 9. sinks, concrete laundry tubs, and cast iron plumbing fixtures; 380 10. windows and doors; 381 11. lumber; 382 12. animal waste, including all excrement from domestic animals and fowl, and all hay, straw, 383 or other materials that have been used for animals' or fowls' bedding; 384 13. liquids, including paint; 385 14. hazardous waste, including household hazardous waste; 386 15. fuel oil tanks; and 387 16. any automotive parts, including vehicle batteries and tires. 388 389 "Cart" means a wheeled receptacle for storing solid waste that can be emptied by either semi - 390 or fully- automated vehicles. 391 392 "Collection contract" means the contract described between the contract hauler and the 393 394 395 396 "Bulky item(s)" means any large item of solid waste, as determined from time to time by the manager which 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: washers, driers, refrigerators, borough for collection of solid waste and transportation to the borough landfill. freezers, dishwashers and "Collection service area" means all premises accessible _ _ _ _ _ _ o . e o . _ _ _ : via roads maintained by the State of Alaska, the Borough, the City of Kodiak, or the U.S Page 8 of 19 98 99 100 101 102 103 104 105 106 107 108 109 110 111 112 113 114 115 116 117 121 122 123 124 125 126 127 128 129 130 131 132 133 134 135 136 137 138 139 140 141 142 143 144 145 146 Any licensed business operating within the Kodiak Island Borough not utilizing the solid waste collection and disposal cervices as defined in this chapter shall bo billed and obligated to pay 3 minimum monthly rate in the current foo schedule as set by resolutio dumpster, each business will share the cost of the dumpster accordingly. The finance director has tho authority to exempt any business from those charges, if proven in writing that no solid waste • a public dumpster, tho business will be accessed a fine in accordance to the as set by resolution of tho assembly. week for a minimum of six hours per day. No person may transport rubbish or trash to any location off site for the purpose of disposal (e.g., burning, landfilling, etc.) except ac provided in this section. The finance director may exempt a person from •; cc requirements if he determines that tho 118 119 Repealed and reenacted as KIBC 8.25:045 by Ord. 86 52 120 Formerly §8.20.010]. 986. [Ord. 86 39 0 §2, 1986. ._ -- a -- --- - - - - -- - - -- - - - e- "e available. Residential dumpster service shall be available in all areas where service is provided outside the corporate _limits of the city of Kodiak — Dumpsters will be located at or near intersections of feeder roads 4. Commercial can service will bo available to business promises on the basis of once por week. Services shall be limited to four 30 gallon bags or cans per collection. Commercial can sorvico shall also be made available to all dwelling units, within the city limits, that arc not eligible from two to six cubic yards, as selected by the customer. Federal facilities may provide their own Kodiak Island Borough Ordinance No. FY2010 -07 Page 3 of 19 147 148 149 150 151 152 153 154 155 156 157 158 159 160 161 162 163 164 165 166 167 168 169 170 171 172 173 174 175 176 177 178 179 193 194 195 'II be provided once a month as part of tho residential service, at no additional charge, except for the months of December, January, necessary to conform to tho health requirements, shall be determined by the environmental classification of service, the environmental engineer shall send a notice to tho person affected by seven days from the date of mailing or personal delivery of the notice. Tho notice shall specify the former classification or category of service, the proposed new category of service, the date and place to app ar to discuss the change in classification, and shall invite the person or persons the proposed change in category of service. [Ord. 96 20 §2, 1996; Ord. 86 52 0 Formerly §8.20.011]. 1. Individuals or firms which regularly uco the s _ - A. No reduction of charges will be made on partially vacant or vacant premises unless the 180 181 182 183 184 185 186 187 188 189 190 191 192 Formerly §8.20.055]. a vacancy period of less than 30 days. The garbage account will be billed according to the fee o za -- - - duration of such vacancy exceeds 180 days from tho original certification or recertification. The property owner will notify the director of finance immediately when the promises are again account will be back billed as if no vacancy occurred. [Ord. 96 20 §2, 1996; Ord. 95 15 §3, 1995. -' -' -- -. Kodiak Island Borough §2, 1986. • Ordinance No. FY2010 -07 Page 4 of 19 397 government, in and around Kodiak City and within the boundaries of the Borough, except for 398 the USCG facilities and past milepost one ions of Anton Larsen Road. 399 400 "Commercial" describes people, such as customers, places, such as premises, or things, such 401 as carts or types of solid waste, in the Borough that are not residential or multi - family. 402 403 "Compactor" means a receptacle containing a ram that pushes and compresses waste into a 404 container or bale. 405 406 "Contract hauler" means the contractor under the municipal solid waste collection contract. 407 408 "Disposal" or "Dispose" means the act or action of discarding solid waste. 409 410 "Hazardous or toxic waste" means any material that meets the definition of 40 CFR 261 and 411 AS 46.03.900 18 MC 50, such as poisons, pesticides, acids, batteries, caustics, infectious or 412 pathological wastes, radioactive materials, explosive or highly flammable materials, oil and 413 petroleum products, and burning or smoldering materials. 414 415 "Household hazardous waste" means hazardous waste generated on residential premises. 416 417 "Borough landfill" means the landfill owned by the borough. 418 419 "Manager" means the borough manager or designee. 420 421 422 as carts or types of solid waste, in the borough that are not residential premises. 423 424 "Multi- family premises" means premises that are not residential premises, and therefore 425 426 427 428 commercial. 429 430 431 432 433 434 435 436 437 438 "Roll -off' means an l n- topped rectangular receptacle for storage, collection, and transport of 439 solid waste that is rolled on and off flatbed collection vehicles via winches or reeving cylinders 440 (hooks). 441 442 "Scavenging" means the controlled removal of waste materials for recycling or reuse. 443 444 "Sewage solids" means waste that passes the paint filter test, EPA Test Method 9095, 445 published in Test Methods for Evaluating Solid Waste, Physical /Chemical Methods, SW -846, 446 adopted by reference in 18 AAC 60.365, and has been removed from a wastewater treatment 447 system, sewer, septic tank, or other wastewater handling equipment; "sewage solids" includes 448 lagoon dredge, sewer cleanout waste, barscreen grit, and wastewater treatment sludge. "Multi- family" describes people, such as customers, places, such as premises, or things, such contains four or more dwelling units, including apartment complexes and trailer courts. "Premises" means property having any habitable building, whether residential, multi - family, or "Recyclables" means materials which can be reprocessed, reconditioned, or adapted to use again or for a new use or function. "Residential premises" means a premises meeting both of the following conditions: 1. it contains one, two, or three dwelling unit(s), and 2. each dw g unit is occupied by related individuals, or by five or fewer unrelated individuals. Kodiak Island Borough Ordinance No. FY2010 -07 Page 9 of 19 449 450 "Solid waste" means "municipal solid waste" as defined in AS 46.03.900. 451 452 "Solid waste collection" means the act of removing solid waste from the central storage point 453 of a primary generating source, such as a residence or business, to a place of solid waste 454 disposal. 455 456 "Solid waste disposal" means the orderly process of finally disposing of solid waste. 457 458 "Solid waste generator" means anyone who creates solid waste during everyday living and 459 working. 460 461 462 after generation and prior to collection and disposal. 463 464 8.25.030 Construction. 465 A. Citations. References to "section" or "article" ref r to sections or articles in this chapter, 466 unless other citation is provided. References to "subsection" refer to subsections within that 467 section. 468 469 B. Designees. Reference to any individual borough staff person by title, such as the manager, 470 includes reference to the designee. 471 472 473 474 475 476 477 1. 478 479 480 481 482 483 484 485 486 487 488 489 490 8.25.050 Litter. In addition to the prohibitions in KIBC 8.20, no one may place solid waste in 491 492 493 494 495 3. 496 497 498 8.25.060 Solid waste collection service. "Solid waste storage" means the interim containment of solid waste, in an approved manner, 8.25.040 Solid waste accumulation and prevention of nuisance. A. Solid waste generators may not accumulate /store solid waste on their premises longer than the period between their regularly scheduled collections or two weeks, whichever is greater. B. A solid waste generator must keep solid waste stored on that generator's premises as follows: in a clean and sanitary manner that does not create a public nuisance or health hazard, in the judgment of the manager, and 2. in accordance with all other applicable federal, state and municipal statutes, ordinances, rules, and regulations. The borough may clean up solid waste that is not kept as required and charge the owner of the premises the cost, in addition to prosecuting the owner for violation of this chapter. C. While storing or handling human food, animal food or solid waste, no one may violate 5 AAC 92.230 which prohibits the feeding of game and deleterious exotic wildlife, nor in a manner that attracts game, deleterious exotic wildlife, dogs or cats. attracts those or other animals (such as dogs, another person's bin, cart or roll -off without that person's consent. No one may discard solid 1. public ctroots, roads or alloys; Kodiak Island Borough Ordinance No. FY2010 -07 Page 10 of 19 499 A. Regular service. Every owner of premises in the collection service area must subscribe to 500 and pay for solid waste collection service at its premises by the contract hauler at least weekly, in 501 carts, including bear carts, bins or roll -offs, as authorized under AS 29.35.210(a)('I), and 502 determined by the manager, even if that owner self -hauls all or a portion of its solid waste for 503 disposal at the borough landfill or recycling at a processing facility. 504 505 B. Temporary service in bins /dumpsters. Anyone who has a temporary need or conducts 506 construction or demolition on its premises may subscribe to and pay for solid waste collection 507 service from the contract hauler for bin or dumpster service. 8.25.070 Solid waste storage and set -out. 508 509 A. Storage. 510 511 and snow. Each solid waste generator is responsible for the placement of that person's bin or cart 512 so that it will not easily be tipped, such as by an animal or the wind. Lids on the bin or cart must 513 be kept closed to keep out rain, snow and animals. Surplus liquids must be drained from solid 514 waste and placed They must drain solid waste of surplus liquids and place them in watertight 515 bags before discarding it in containers. 516 517 B. Set -out. 518 1. Site Anyone who receives solid waste collection se in cart or bin service must place 519 their container in the following locations, or as instructed by the contract hauler: 520 a. roadside; 521 b. in an adjacent alley; or 522 c. within three feet of the roadwaon which the contract hauler can drive its collection 523 vehicles. 524 For example, if the serviced premises are adjacent to more than one street, alley, or roadway, the 525 contract hauler may instruct the customer to set -out containers on only one specified street, alley, 526 or roadway. 527 528 2. Required actions. Anyone who receives solid waste collection roll off service, whether in a 529 cart, bin, or roll -off must do the following: 530 a. discard only securely bagged or bundled solid waste inside the cart, bin, or roll -off 531 provided by the contract hauler for that customer's use; and 532 b. clean up any solid waste discarded, scattered, littered, or otherwise strewn outside the 533 cart, bin, or roll -off. 534 The contract hauler is not required to clean up solid waste discarded, scattered, littered, or 535 otherwise strewn outside the cart, bin or roll -off, except for solid waste that the contract hauler 536 spills during collection and transportation. 537 538 3. Prohibited Conduct. iWyone who receives solid waste collection service, whether in a cart, 539 bin or roll -off, must not do any of the following: 540 a. discard dedfd animals in the cart, bin, or roll -off; or 541 b. discard any solid waste outside the cart, bin, or roll -off, including the following: 542 i. litter; 543 ii. bulky items, such as appliances, bed springs, mattresses, furniture; 544 iii. non -bulky items listed in the definition of "bulky items" (such as 545 construction /demolition waste, unless as allowed during temporary service as 546 in KIBC 8.25.060(B), tree limbs, lawn clippings, animal waste; and 547 iv. hazardous or toxic waste. 548 Kodiak Island Borough Ordinance No. FY2010 -07 Page 11 of 19 549 No one may discard any material in a roll -off except for the roll -off provided by the contract hauler 550 for that person's solid waste collection service. 551 552 C. Clearance and access. A cart customer must maintain a minimum of three feet of clearance 553 between each cart and any mailbox, vehicle, snow berm, or other object that would obstruct 554 collection, including the arm on an automated collection truck. A cart customer must maintain 555 clear access to the cart set -out site so that the collection vehicles can lift and empty carts, 556 including clearing away snow and other obstructions, such as parked vehicles. 557 558 D. Bin sharing. Two or more bin customers must share bins, and the allocable service charges 559 for solid waste collection, if directed by the contract hauler when there is limited space for set -out 560 or collection of bins. 561 562 E. Safety. Each customer must maintain its set -out site so that it is safely accessible to contract 563 hauler's vehicles and employees. If the contract hauler determines that the set -out site is not 564 safe, it is not obligated to provide collection service there. Contractor will coordinate safe set -out 565 location with customer for each occurrence. 566 567 8.25.080 Solid waste discard. 568 A. The contract hauler is not obligated to provide collection service in any of the events listed in 569 this section or in the collection contract. 570 1. Solid waste only. No one may discard any material in a container for collection by the 571 contract hauler except solid waste. The contract hauler may inspect the contents of any 572 container. The contract hauler must not collect any container that stores materials other 573 than solid waste. In that event, the customer must pay the contract hauler $50, or other 574 amount established by the manager. 575 2. Containerized. No one may discard any solid waste for collection by the contract hauler 576 outside their container except for bulky waste items discarded at the time when, and place 577 where, the contract hauler is obligated to collect bulky waste items. He must tightly close 578 container lids. They may not place solid waste on top of a container or allow solid waste to 579 protrude from the container. The contract hauler may refuse to collect any overfilled 580 container. 581 3. Within weight limits. No one may discard solid waste in containers in excess of the 582 weight limit that the contract hauler prescribes on the container. The contract hauler may 583 refuse to collect any overweight container. 584 4. At Proper Set -out Site: No one may discard solid waste for pickup by the contract hauler 585 anywhere except at the set -out site designated by the contract hauler. The contract hauler 586 may refuse to collect any misplaced container or bulky waste. 587 5. Contaminated recyclables. If the contract hauler provides recyclables collection service, 588 no one may discard any material in a recyclables container for collection by the contract 589 hauler except recyclables. The contract hauler may inspect the contents of any 590 recyclables container. The contract hauler must collect that container and discard its 591 contents as refuse. In that event, the customer must pay the contract hauler $50, or other 592 amount established by the manager. 593 594 B. No refills. No one may discard a second load of solid waste in a cart or bin immediately after 595 the contract hauler lifts and dumps the container. 596 597 8.25.090 Billing and collection. 598 A. Payment. Everyone owner of premises in the collection service area must pay the contract 599 hauler for solid waste collection service at the following times: Kodiak Island Borough Ordinance No. FY2010 -07 Page 12 of 19 600 1. monthly by the 25 day of each month, in advance, or other time provided in the collection 601 contract; or 602 2. as determined by the manager. 603 604 605 606 607 2. _ . _ _ _ _ ! ! one percent per month on 608 the outstanding balance with a minimum of $1.00 for each month. 609 610 C. Deposits. If following request by the contract hauler, the borough reasonably determines that 611 semeene an owner of premises who is commencing new service has not established sufficient 612 credit in the community to assure timely payment of solid waste collection service charges, then 613 .e _ • • _ _ _ . e • • _ _ _ . _ _ _ _ _ .' • • the contract hauler may require a deposit in 614 $4009 an amount equal to two (2) months billings for the collection service requested, or other 615 amount determined by the manager. The contract hauler may retain the deposit for up to one 616 year, after which the owner may request the contract hauler to return the deposit if the-h 617 the owner has established a record of timely payment. Neither the borough nor 618 the contract hauler is obligated to escrow or pay interest on the deposit. 619 620 D. Liens. Charges for solid waste collection and disposal service constitute a lien chargeable 621 against the property being serviced, as if the charge had been levied or assessed as a property 622 tax. If a customer does not pay solid waste service charges, upon request of the contract hauler 623 or by the determination by the borough, the borough may foreclose the solid waste collection 624 service lien in the same manner as a property tax lien or as any other lien or mortgage against 625 property. 626 627 8.25.100 Transportation. Everyone who tra ports carg such as ashes, leaves, or other 628 materials that might blow, fall, spill, drop, leak, sift, or otherwise escape from the transport vehicle 629 during passage over a public alley, street, or road must contain the cargo by either of the 630 following means: 631 A. tight enclosure or container that is an integral part of the vehicle; or 632 B. a separate cover that is fastened onto the vehicle and secures the top and all sides of the 633 cargo. 634 635 8.25.110 Disposal of solid waste. No one may dispose of solid waste generated in the collection 636 service area or USCG except in accordanco with AS 29.35.210(a)(1) at state - permitted solid 637 waste processing and disposal facilities in the borough, including any recyclables processing 638 center operating in compliance with law and the borough landfill, unless exempted in writing by 639 the manager. 640 641 8.25.120 Disposal of hazardous and toxic wastes; used motor oil; electronic waste. 642 A. Non - Borough materials banned. No one may dispose of hazardous or toxic waste, or used 643 motor oil, which is generated from outside the borough, in the borough. 644 645 B. Residential used motor oil: Everyone must dispose of any used motor oil generated on 646 residential premises, at any facility operating in compliance with law, including the borough 647 landfill. The borough landfill will charge the following fees or other fees determined by the 648 manager: 649 1. up to five gallons per month without charge; or B. Late Fees. If the contract hauler is not timely paid, the contract hauler may charge the following late payment fees: 1. established under the collection contract; or Kodiak Island Borough Ordinance No. FY2010 -07 Page 13 of 19 650 2. in excess of five gallons per month, but less than ten gallons per month in containers not 651 exceeding five gallons in size, for the charge in the Borough User Fee Schedule. 652 C. Household hazardous waste: Everyone must dispose of household household hazardous 653 waste at the borough landfill, or other borough facility or sponsored collection event, and pay the 654 borough the following fees or other fees as determined by the manager: 655 1. up to 40 pounds per month without charge; or 656 2. more than 40 pounds per month for the charge in the borough user fee schedule. 657 658 Everyone must dispose of electronic waste, computer monitors, Cathode Ray Tubes, circuit 659 board containing components, cables, and cable boxes, generated on premises that are not 660 residential, such as businesses or schools, at a facility designated by the manager, or absent 661 designation, at a facility operating in compliance with law and pay the charges established at the 662 facility. 663 664 8.25.130 Prohibition on burning of solid waste. In addition to complying with KIBC 8.35, Nno 665 one may burn any materials that cause odor or black smoke that has an adverse effect on nearby 666 persons or property, as determined by the manager, including the following: 667 1. animal carcasses; 668 2. petroleum based materials such as plastic bags, or other materials contaminated with 669 petroleum or petroleum derivatives; and 670 3. any other solid waste. 671 672 673 674 675 676 677 678 679 680 681 682 683 B. Vehicles. Contract hauler will keep each vehicle that it uses to provide solid waste collection 684 service clean, flushed and washed daily, well painted, and in good repair, in reasonable 685 judgment of the manager. 686 687 C. Carts and Bins. The contract hauler will provide everyone that receives cart or bin services 688 with use of a cart, carts, bin or bins for storage of solid waste. Carts and bins will remain the 689 property of the contract hauler, unless otherwise provided in the collection contract. 690 691 D. Customer Rights notice. The contract hauler must provide each customer with a written 692 "Customer's Rights" notice, in format and content satisfactory to the manager, including the 693 following: 694 1. type and capacity of subscribed containers; 695 2. the day, or days, of service; 696 3. the location of the container set -out site; 697 4. a description of "solid waste" that may be discarded, and a list including examples of 698 materials that may not be discarded, such as household hazardous waste, with 699 alternatives for safe and legal discard; 8.25.140 Solid waste handling services. No one may directly or indirectly provide, organize, manage, direct, or sponsor solid waste handling services to someone else for compensation in cash, kind or credit, except the following: 1. the contract hauler; and 2. someone transporting solid waste as an incident of its primary business, such as a contractor transporting construction and demolition debris, in its own vehicles. 8.25.150 General conditions of service. A. Collection hours. Monday through Friday, 5 a.m. until 5 p.m. or as determined from time to time by the manager. Kodiak Island Borough Ordinance No. FY2010 -07 Page 14 of 19 700 5. schedule of monthly service charges; 701 6. a description of optional services, such as scheduled or on -call collection of bulky waste, 702 collection of containers from on the premises rather than at the public set -out site, certain 703 container exchanges, bin locks, etc., with applicable charges; and 704 7. any other matters required by the manager. 705 706 8.25.160 Prohibition of scavenging and tampering. 707 A. Solid waste removal without permission. No one may remove solid waste from someone 708 else's container without the written permission of the individual or entity that pays for solid 709 waste collection services with that container or owns that container, except the following: 710 1. the contract hauler; 711 2. a law enforcement officer; 712 3. a borough employee; or 713 4. someone authorized and directed by the manager, s , ch as someone conducting solid 714 waste audits. 715 716 B. Use of container without permission. No one'' ay tamper with or use someone else's 717 container for any purpose without the written permission of the individual or entity that pays for 718 solid waste collection services with that container or owns that container. 719 720 8.25.170 Ownership. Solid waste, or any other discarded material, remains the property of the 721 generator until the occurrence of any of the following events: 722 723 A. Public trash cans. The generator legally discards the solid waste, for example, a restaurant 724 customer discards a beverage container into a refuse receptacle provided by the restaurant 725 where the customer purchased the beverage; or an automobile passenger discards litter in a 726 refuse receptacle located at a gas station for use of customers. 727 728 B. Self haul. The owne ", occupant, manager or other person in possession, charge or control of 729 a premise where solid waste is generated removes solid waste located on the premise and legally 730 discards the solid waste, for example, a resident self -hauls yard debris to the borough baler and 731 landfill. 732 733 734 735 736 737 738 739 740 741 8.25.180 Baler facility and sanitary landfill. 742 A. The Borough will provide for the disposal of solid waste generated in the borough collection 743 service area, at the borough's baler facility and sanitary landfill or at another facility or in another 744 manner approved by the assembly, such as a materials processing or composting facility. 745 746 B. At the borough baler facility and sanitary landfill, no one may do any of the following: 747 1. enter outside of posted opening hours, unless otherwise authorized by the borough; or 748 2. deliver any materials prohibited under section 8.25.200; or 749 3. discard any material without first paying applicable user fees under section 8.25.190; or 750 4. dispose of any material in an area other than a designated area. C. Contract hauler collection. The contract hauler collects solid waste from its customer and recycles or disposes of it in accordance with law. Absent the occurrence of these events, solid waste, or other material, remains the property of the generator even if the generator abandons the solid waste, exercises no dominion or control over the solid waste or asserts no ownership of the solid waste. If the generator abandons that solid waste, for example by litter or illegal dumping, the manager may clean up and discard the solid waste and charge the generator the related solid waste handling costs. Kodiak Island Borough Ordinance No. FY2010 -07 Page 15 of 19 751 752 8.25.190 User Fee Schedule. 753 A. Enterprise funding. By resolution, the assembly will set fees for solid waste management 754 services provided at the borough owned or operated facilities, including disposal of solid waste 755 and household hazardous waste at borough's baler facility and the sanitary landfill, sufficient to 756 cover the facilities' costs of operation, maintenance, and capital improvements without subsidy 757 from any other source, as an enterprise and nonsubsidized freestanding operation. 758 759 760 761 762 763 764 765 766 767 768 769 770 771 772 773 774 775 776 777 778 779 780 781 782 783 784 785 786 787 788 789 790 791 792 793 794 795 796 797 B. Exceptions. Exempt waste described below is prohibited from disposal unless it meets the 798 following requirements: 799 1. it is mixed with nonexempt waste; 800 2. there is a public health, safety, or welfare threat or environmental problem associated with 801 management of the exempt waste as determined by the manager; or B. Cash or commercial charge accounts. No one may deliver any material to a facility owned or operated by the borough without paying applicable fees established by resolution of the assembly in cash upon delivery, except the following users: 1. the contract hauler and other commercial users determined by the manager, such as contractors that regularly delivery construction and demolition debris to the borough landfill, which may establish charge accounts under subsection D. C. Schedule. The assembly will establish a user fee schedule, which may provide fees for different categories of service, including the following: 1. per unit of weight, such as ton, of solid waste; 2. per unit of time, such as a half -hour, for materials that require special handling by facility personnel upon delivery, in addition to the applicable fees per ton; 3. for types and amounts of hazardous and toxic waste; or 4. for any other materials. D. Charge accounts. The manager may extend credit for user fees as follows: 1. an applicant may obtain a credit application from the director of finance or his designee; all credit applications are subject to approval by the director of finance in his discretion and this may include a deposit. - :: ! !!.!I, - . The borough may retain the deposit for up to one year, after which the owner may request the return of the deposit if KIB determines that the applicant has established a record of timely payment. The borough is not obligated to escrow or pay interest on the deposit; 2. the charge account holder must pay bills within 30 days after the borough mails the monthly bill; and 3. the director of finance may revoke credit and charging privileges without notice to the charge account holder at any time an account becomes delinquent. or USDA. Kodiak Island Borough 8.25.200 Prohibited disposal A. Unpermitted. No one may deliver to, deposit at, or dispose in the borough landfill, any of the following materials: 1. material prohibited under the borough's solid waste disposal permit issued by the Alaska State Department of Environmental Conservation; 2. polluted or contaminated soil as defined in 18 AAC 60, 18 AAC 75 OR or 18 AAC 78; 3. sewage sludge for which no test results, required by law (e.g., 18 AAC 60.365) or as determined by the manager, have been submitted to the borough; and Ordinance No. FY2010 -07 Page 16 of 19 802 3. the exempt waste is being managed in a manner that causes or contributes to a nuisance. 803 "Exempt wastes" means the following: 804 1. land clearing waste, including excavated dirt, rock, soil, butt ends, stumps, and other 805 similar waste; 806 2. tree limbs and other foliage or woody debris, sometimes referred to as "slash," in a timber 807 harvest area; 808 3. bricks, mortar, and Portland cement type concrete, including reinforcing steel that cannot 809 be easily removed; 810 4. crumb rubber used in asphalt paving; 811 5. crushed glass; 812 6. crushed asphalt pavement used: 813 i. in a building pad or parking area as road base, or pave ent; or 814 ii. as a material to construct a containment berm for a tank farm. 815 816 8.25.210 Applicability of federal, state, and local solid waste law. Solid waste law and the 817 rules, regulations, provisions, and conditions promulgated under that law (as they may be 818 amended, repealed, or replaced) applies in the boro and failure to comply with solid waste law 819 is a violation of this chapter. The borough may, b , of oblig,ted, to take enforcement actions 820 or seek remedies for violation of solid waste law. 821 Examples of solid waste law follow: 822 A. with respect to environmental protection: 823 1. Comprehensive Environmental Response, Compen and Liability Act of 1982 (42 824 U.S. C. §9601 et seq.)( "CERCLA "); 825 2. Resource Conservation and Recovery Act (42 D.S.C. §69b et seq.) ( "RCRA "); 826 3. Clean Air Act, (42 U.S.C. §1351 et seq., 42 U.S.C. §7401- 7642); and California Clean Air 827 Act (Health & Safety Code Sections 1251 et seq. and Health and Safety Code §39000 et 828 seq.); 829 4. Emergency Planning and Community Right to Know Act, (42 U.S.C. §11001 et seq.); 830 5. Alaska Department of Environmental Conservation, Solid Waste (18 AAC 60); 831 6. Litter Receptacles. (18 AAC 64.005 — 18 AAC 64.250); 832 7. Hazardous Waste. (18 AAC 62.010 — 18 AAC 62.990); 833 8. Pesticide Control. (18 AAC 90.010 — 18 AAC 90.990); and 834 9. Oil and Other Hazardous Substances Pollution Control. (18 AAC 75.005 — 18 AAC 835 75.990). 836 837 B. with respect to solid waste handling labor: 838 1. Occupational Safety and Health Act, (29 U.S.C. §651 et seq.), including the Solid Waste 839 Disposal Facility Criteria promulgated by the U.S. EPA on October 9, 1991 (40 C.F.R., 840 Parts 257 and 258); 841 2. Immigration Reform and Control Act of 1986 (PL.99 -603); 842 843 C. Miscellaneous: 844 1. Civil Rights Act of 1964 (Sub chapter VI or Chapter 21 of Title 42); 845 846 8.25.220 Administration, implementation, and enforcement. The manager is authorized to 847 administer, implement, and enforce this chapter and promulgate related solid waste policy, unless 848 this chapter expressly names another person. The manager may request assistance from other 849 persons or request that other persons administer, implement and enforce all or a portion of this 850 chapter. Examples of other persons are: 851 1. the director of finance or the auditor - controller, for example, with respect to collection of 852 user fees; Kodiak Island Borough Ordinance No. FY2010 -07 Page 17 of 19 853 2. City of Kodiak Police Department; 854 3. Borough attorney; 855 4. other borough departments; 856 5. District Attorney; 857 6. Alaska State Department of Environmental Conservation; 858 7. Alaska Department of Fish and Game; 859 8. Alaska State Troopers; and 860 9. an enforcement officer. 861 862 8.25.230 Enforcement officer. 863 A. Authority. The enforcement officer has the authority to iss . citons, summons, and 864 complaint, or notices of violation to anyone who violates this chapter. 865 866 867 as a lawful complaint for purposes of prosecution under this chapter. 868 869 8.25.240 Violations, enforcement actions and remedies. 870 A. Violations. 871 1. 872 873 874 2. 875 876 877 878 879 infraction: 880 1. KIBC 8.25.010 through 8.25.090 with respect to solid waste generator responsibilities; 881 and 882 2. KIBC 8.25.100 through 8.25.130 with respect to anyone othe 883 884 885 886 887 888 889 890 891 892 893 B. Enforcement Actions and Remedies. 894 1. Actual Violations. If the manager believes that someone has 895 violated any provision of this chapter, whether that person is acting or failing to act in the 896 capacity of a principal, agent, employee or otherwise, then the manager may institute any 897 enforcement action and exercise any legal or equitable remedy 898 available to the borough under law, such as the following: 899 i. 900 B. Citation. A citation filed in the district court charging a violation under this chapter is deemed Per failure. Each failure to comply with any provision of this chapter or any regulation promulgated under this chapter constitutes a separate violation. For example, scavenging is a separate violation for each container from which materials are scavenged. Per day. Each day a violation continues is a separate violation. For example, failure to maintain a collection vehicle in accordance with Section 8.25.150B is a separate violation for each day until the vehicle is repaired. 2. KIBC 8.25.100 through 8.25.130 with respect to contract hauler; and • penalty of up to $250 per violation; Kodiak Island Borough civil actions seeking a Ordinance No. FY2010 -07 Page 18 of 19 901 902 903 904 905 906 907 908 909 910 911 912 913 914 915 916 917 918 919 920 921 922 923 924 925 926 927 928 929 930 931 932 933 934 935 936 937 938 ATTEST: 939 940 941 ii. civil actions seeking injunctive relief; iii. civil suits seeking damages or civil penalties, including the costs of any corrective action that the manager deems necessary to mitigate consequences of violations, whether acts or omissions; or Cede, v. proceedings to declare a property a public nuisance and abate the nuisance under as authorized by AS 46.03.870(c). 2. Immanent violations. If the manager believes that a person will immanently violate any provision of this Chapter, whether that person is acting or failing to act in the capacity of a principal, agent, employee, or otherwise, then the manager may exercise any equitable remedy available to the borough under law, such as a temporary restraining order or injunction. 3. Enforcement actions and remedies are cumulative, not exclusive. Enforcement actions and remedies are cumulative, not mutually exclusive. The manager may institute any single enforcement action or exercise any single remedy or a combination of multiple enforcement actions and remedies, separately or simultaneously. The manager need not conclude any particular enforcement action or exhaust any particular remedy before instituting other enforcement action or exercising any other remedy. 4. Penalties and remedies are not limited. The penalties and remedies provided for violation of this chapter are in addition to and not in lieu of any other penalty or remedy provided for in state law or otherwise. Section 3: Effective Date. This ordinance shall become effective on July 1, 2010. ADOPTED BY THE ASSEMBLY OF THE KODIAK ISLAND BOROUGH THIS DAY OF 2010 942 Nova M. Javier, MMC, Borough Clerk 943 944 KODIAK ISLAND BOROUGH Jerome M. Selby, Borough Mayor Kodiak Island Borough Ordinance No. FY2010 -07 Page 19 of 19 In May 2009, the collection services. (SWMP) which was KODIAK ISLAND BOROUGH AGENDA STATEMENT APRIL 15, 2010 REGULAR MEETING TITLE: Contract No. FY2010 -30 Solid Waste Collection Contract. SUMMARY: ITEM NO: 12.B KIB issued a request for proposal (RFP) for solid waste and recycling This RFP was developed based on the Solid Waste Management Plan approved by the Assembly on August 21, 2008. Two proposals were received. KIB staff selected the proposal submitted by Alaska Pacific Environmental Services, LLC dba Alaska Waste. Staff determined that the Alaska Waste proposal provided the most responsive approach to reach KIB's solid waste goals as identified in the Solid Waste Management Plan and the KIB Strategic Plan. Alaska Waste committed to adjust their service delivery as needed to accommodate future progressive steps toward KIB's solid waste goals and needs. Staff has negotiated the details of the contract with Alaska Waste and recommends approval. The contract was presented to the Assembly on February 18, 2010 and then again March 1 and April 1, 2010. A copy of the contract is available in the February 18, 2010 packet on the website. * *As of Wednesday afternoon, April 7, 2010, staff was still working with Alaska Waste to fine tune the numbers for the proposed contract options. As soon as information becomes available, it will be emailed to the Assembly and posted on the website. ** FISCAL NOTES: Account No.: Amount Budgeted: Expenditure Required: APPROVAL FOR AGENDA: 4k g l THE MOTION THAT IS BEFORE THE ASSEMBLY IS: Move to authorize the manager to execute Contract No. FY2010 -30 with Alaska Pacific Environmental Services, LLC of Anchorage, AK for the Solid Waste Collection Services. Notes regarding this contract. Contract No. FY2010 -30 was first presented to the Assembly on February 18, 2010 regular meeting and then postponed to the March 1, 2010 meeting, and then again on April 1, 2010. A copy of the original contract is available in the February 18, 2010. You may access the packet in the Borough records section or the assembly meetings section on the web. On March 25, 2010 and April 8, 2010 work sessions, Solid waste collection contract options were distributed to the Assembly. Both these documents are available in this packet. Staff will work with Alaska Waste and revise the original contract according to the direction given by the Assembly. As soon as the revised contract becomes available, it will be posted on the KIB website as an addendum. For additional information, please contact the Clerk's Office at 486 -9310. SOLID WASTE COLLECTION CONTRACT OPTIONS Assembly Work Session 4 -8 -2010 Below are the adjustments to Option 2 and Option 3 requested by the Assembly during their work session on March 25, 2010 and the direction given during their regular meeting April 1, 2010. Option 1 remains in the memo to clarify for the Assembly the evolution of rate payer costs. Option 1 is the system approved by the Assembly prior to the release of the RFP. This system would collect waste from residents using roll carts with the monthly rate dependent on the size of the cart selected. Residents in the outlying areas would be assigned a bear cart. The primary reason for implementing a cart based system is to establish an equitable rate structure that assigns the service and disposal costs to residents and small businesses that generate the waste. The following table details the proposed collection rates: Proposed Variable Cart Rate System KIB Variable Rates Kodiak City Variable Rates 32 gallon: $28.90 32 gallon: $28.90 64 gallon: $34.09 64 gallon: $34.09 96 gallon: $38.31 96 gallon: $38.31 All residential dumpsters would be removed from the Borough and the City limits. Option 2 retains residential dumpsters throughout the road system with the exception of city limits where residential dumpsters will be removed and the variable cart system provided. Collection rates for City residents will be based on the volume of the cart selected plus any excess waste surcharges /credits. Charges to customers outside city limits are uniform and include a dumpster clean -up charge and any excess waste surcharge /credit based on actual residential tons disposed at the landfill. The following table details the proposed rates for Option 2: Residential Collection Option 2 All KIB Fixed Rate Service & Disposal: $ 38.31 Dumpster Clean -up: $ 2.00 KIB Fixed Rate: $ 40.31 Plus Excess Waste Surcharge Kodiak City Variable Rates 32 gallon: $ 28.90 64 gallon: $ 34.09 96 gallon: $ 38.31 Plus Excess Waste Surcharge All residential dumpsters will be removed from the city limits and carts will be mandatory within city limits. Page 1 of 3 Options for Solid Waste Collection Contract — KIB Assembly WS 4.8.10 Option 3 retains residential dumpsters throughout the road system with the exception of city limits where residential dumpsters will be removed and the variable cart system provided. The rate for city customers is based on the 96 gallon cart rate of $38.31. As in Option 2, residential customers outside city limits will be charged a fixed rate of $38.31, a dumpster clean -up charge and, if warranted, an excess waste surcharge /credit. This system does not represent any semblance of a Pay -As- You -Throw system. The following table details the proposed rates for Option 3: Residential Collection Option 3 All KIB Fixed Rate w /surcharge Service & Disposal: $ 38.31 Dumpster Clean -up: $ 2.00 KIB Fixed Rate: $ 40.31 Fixed Rate $38.31 City Fixed Rate: $38.31 Kodiak City Plus Excess Waste Surcharge Plus Excess Waste Surcharge All residential dumpsters will be removed from city limits and carts will be mandatory inside city limits. Excess Waste Surcharge The excess waste surcharge will occur when an unknown quantity of excess waste is generated throughout the collection system. It should be made clear that this excess waste may occur from a multitude of sources and should not be considered as only coming from City residents. Borough residents, utilizing residential dumpsters, routinely dispose of large volumes of waste, including bulky items and construction demolition debris. Commercial waste generators also routinely utilize residential dumpsters to dispose of their waste including those in the construction trade. The Assembly has previously acknowledged that this abuse to the system will occur. The cost for this additional waste will be charged evenly to all residential rate payers according to actual excess tons delivered to the landfill for disposal from residential sources. Borough staff is continuing its negotiation with the Contractor regarding what tonnage amount will be used as a the maximum limit of waste before the excess waste surcharge will be implemented and; what mechanism will best suit the Borough and Contractor's needs on when to invoice residential customers. Senior Discounts Senior Discounts were not assumed in the Solid Waste and Recycling Collection Services RFP; therefore, any discounts granted need to be funded by either the KIB or subsidized by the rate payers. Staff has determined that the most efficient way to provide this discount is to include a Page 2 of 3 Options for Solid Waste Collection Contract — KIB Assembly WS 4.8.10 line item in the enterprise (landfill) expense budget based on an assumed number of seniors. At this time staff has been directed to assume 400 seniors. The following table details the financial impact of the $7.00 discount being proposed by the Assembly. Option 1 Pay -As- You -Throw System Equitable Rate Structure *Plus excess waste surcharge. Senior Discount Financial Impact Senior Discount $7.00 Monthly Discount Cost $2,800 Summary Table exclusive of proposed Senior Discount: Collection System KIB Kodiak City Variable Rates 32 gallon: $28.90 64 gallon: $34.09 96 gallon: $38.31 Option 2 Fixed Rate Status Quo with City Carts w /surcharge Dumpsters: $40.31* Option 3 Fixed Rate Status Quo with City Carts — w /surcharge Neutralizes Rate Dumpsters: $40.31* Annual Discount Cost $33,600 Variable Rates 32 gallon: $28.90 64 gallon: $34.09 96 gallon: $38.31 Variable Rates w /surcharge 32 gallon: $28.90* 64 gallon: $34.09* 96 gallon: $38.31* Fixed Rate Carts: $38.31* Page 3 of 3 Options for Solid Waste Collection Contract — KIB Assembly WS 4.8.10 Residential Collection Option 2 KIB Kodiak City Fixed Rate w /surcharge Variable Rates Service & Dis • osal: $ 42.68 32 • allon: $ 28.90 Dumpster Clean -up: $ 1.65 64 gallon: $ 34.09 KIB Fixed Rate: $ 44.33 96 gallon: $ 38.31 Excess Waste Surcharge (see explanation after Option 3) SOLID WASTE COLLECTION CONTRACT OPTIONS 12vvoki of 1 -&-Q -. 3 -25 -2010 (,VJyf c. Se S 4Lf Under consideration below are three options for rate payers with the exception of residents beyond Deadman's Curve (Bells Flats, Chiniak and Pasagshak). Residents in that area will still pay the fixed rate of $38.31 and $2.52 for dumpster clean -up costs for a total of $40.83. The first option is the residential collection system proposed by Alaska Waste which reflects the Pay -As -You Throw structure as outlined in KIB's Solid Waste and Recycling Collection Services RFP (May 2009); and the second and third options, based primarily on a "status quo" condition, being proposed by the KIB Assembly. Option 1 is the system approved by the Assembly prior to the release of the RFP. This system would collect waste from residents using roll carts with the monthly rate dependent on the size of the cart selected. Residents in the outlying areas would be assigned a bear cart. The primary reason for implementing a cart based system is to establish an equitable rate structure that assigns the service and disposal costs to residents and small businesses that generate the waste. The following table details the proposed collection rates: Proposed Variable Cart Rate System KIB 32 gallon: $28.90 64 _gallon_ $34.09 96 gallon: $38.31 Kodiak City Variable Rates Variable Rates 32 gallon: $28.90 64 gallon $34.09 96 gallon: $38.31 All residential dumpsters would be removed from the Borough and the City limits. Option 2 would keep the community dumpsters in the populated areas of the Borough while providing the variable cart system to the residents of Kodiak City. Collection rates for City residents would be based on the volume of the cart selected whereas the rate for Borough residents would be a fixed rate with a surcharge for excess waste. The proposed rate for Borough residents assumes the 1,580 residential customers will dispose of 70 pounds per week or 55 tons for the entire rate base (1,580 customers x 70 pounds / 2,000 pounds per ton). Any waste amounts collected over the assumed weekly amount of 55 tons would be invoiced monthly as an additional surcharge to the Borough residents. The calculation of the surcharge is detailed at the end of this memo. The following table details the proposed rates for Option 2: Page 1 of 3 Options for Solid Waste Collection Contract — KIB Assembly WS 3.25.10 Residential Collection Option 3 KIB Kodiak City Fixed Rate w /surcharge Fixed Rate Service & Disposal: $ 38.31 $38.31 Dumpster Clean -up: $ 1.65 $3,591.74 KIB Fixed Rate: $ 39.96 At 20% over tonnage allotment Excess Waste Surcharge 47.89 Excess Waste Surcharge Calculations Excess Monthly Excess Weekly Tons Tons Disposal Cost Excess Surcharge At 10% over tonnage allotment 5.5 23.94 $3,591.74 $2.27 At 20% over tonnage allotment 11.1 47.89 $7,183.47 $4.55 At 25% over tonnage allotment 13.8 59.86 $8,979.34 $5.68 At 30% over tonnage allotment 16.6 71.83 $10,775.21 $6.82 At 35% over tonnage allotment 19.4 83.81 $12,571.07 $7.96 At 40% over tonnage allotment 22.1 95.78 $14,366.94 $9.09 At 45% over tonnage allotment 24.9 107.75 $16,162.81 $10.23 At 50% over tonnage allotment 27.7 119.72 $17,958.68 $11.37 Some residents of Kodiak City will benefit from this option because they will have a cart that is collected at their driveway and if they have a large item or excessive waste, they can easily drive to a KIB dumpster to dispose of their waste at no additional charge to them. Because of this, and other potential, undetermined system abuses (commercial dumping), the proposed rates for Borough customers must assume a higher volume of waste and therefore the higher rate; small waste generators, such as senior citizens, will pay a higher garbage bill to subsidize these larger waste generators and the anticipated abuse of the system that is expected to occur. All residential dumpsters would be removed from the City limits. Option 3 would keep the community dumpsters in the populated areas of the Borough and provide a cart system with a fixed rate to Kodiak City residential customers. The rate for City customers would be the 96 gallon cart rate of $38.31. As in Option 2, Borough residential customers would be charged a fixed rate of $38.31, a dumpster clean -up charge and, if warranted, as in Option 2, an excess waste surcharge. This system does not represent any semblance of a Pay -As- You -Throw system. The following table details the proposed rates for Option 3: All residential dumpsters would be removed from the City limits. The excess waste surcharge represents the additional tonnage amounts, brought to the KIB landfill for disposal and therefore this cost would have to be passed back to the Borough rate payers (adjusted relative to the number of customers). The surcharge would simply be all amounts over the allotted 55 tons multiplied by the disposal rate and divided by the Borough customer count. The following table provides an example of surcharges assuming various additional waste tonnage amounts, multiplied by the $150 per ton disposal fee and then allocated over 1,580 Borough customers: Page2of3 Options for Solid Waste Collection Contract — KIB Assembly WS 3.25.10 Collection System KIB Kodiak City Alternative 1 Variable Rates Variable Rates 32 gallon: $28.90 32 gallon: $28.90 64 gallon: $34.09 64 gallon: $34.09 96 gallon: $38.31 96 gallon: $38.31 Alternative 2 Fixed Rate w /surcharge Variable Rates 32 gallon: $28.90 Dumpsters: $44.33* 64 gallon: $34.09 Fixed Rate w /surcharge 96 gallon: $38.31 Alternative 3 Fixed Rate L D umpsters: $39.96* Carts: $38.31 Senior Discounts were not assumed in the Solid Waste and Recycling Collection Services RFP; therefore, any discounts granted need to be funded by either the KIB or subsidized by the all of the residential rate payers, including those past Deadman's Curve. There are 370 seniors currently receiving a discounted rate. Assuming 370 seniors, the following table details the financial impact of various discounts to either the KIB General Fund or all residential rate payers. Summary Table Senior Discount Financial Impact Senior Discount Monthly Discount Cost $5.00 $1,850 $22,200 $0.74 $7.00 $2,590 $31,080 $1.03 $10.00 $3,700 $44,400 $1.47 Several jurisdictions provide discounted rates to seniors based on a financial need and not an age test. If this is considered by the KIB, the financial impact to either the General Fund or all residential rate payers would be less than the above calculations. *Plus excess waste surcharge as described previously. Annual Discount Cost Cost Per Rate Payer Per Month Page 3 of 3 Options for Solid Waste Collection Contract — KIB Assembly WS 3.25.10 New Solid Waste Collection Contract Summary 1. CUSTOMER BILLING: 4 -15 -2010 Under the current contract residential customers living within city sewer /water service areas are billed by the City of Kodiak, and all others are billed by the Borough. The Borough receives customer service calls and is responsible for fee collection. The new contract provides for billing and customer service calls as a responsibility of Alaska Waste relieving Borough staff of the burden of billing, collection, and customer service response. 2. PAYMENT FOR COLLECTION SERVICES: Under the current contract the hauler is paid on a "partial piecework basis" i.e. quantity of dumpster tips + rent for containers + number of city residences, etc. The new contract provides that Alaska Waste will pay KIB for actual tons of waste delivered to the landfill. Alaska Waste will retain the remainder of the fee charged to customers. 3. FEE AMOUNTS CHARGED TO RESIDENTIAL CUSTOMERS: Under the current contract fee amounts are proposed by staff based on estimated numbers of city residences + estimated container rents and tips multiplied by contractor unit prices that are negotiated annually. Staff then adds the estimated landfill expenses for the total fee. The new contract provides fee components displayed in the table below with annual inflators indicated in the second column: FEE COMPONENT INFLATOR a. Collection & Admin Costs 75% of CPI b. Fuel Costs 75% of PPI c. Cart Rental No Inflator d. Depreciation /Lease Cost No Inflator e. Disposal Cost (pass through to KIB) Actual f. Margin (7.5% of a thru e above) No Inflator Accordingly each type of collection service may be adjusted annually during the term of the contract. 4. COLLECTION SERVICES: Under the current contract residences within the city limits may set -out at the curb or self -haul to any residential dumpster. All other residences must self -haul to a residential dumpster, with the exception of multi- family residences which are served with commercial dumpsters throughout the service area. The new contract provides curbside pick -up at a variable rate for residences within the city limits. Customers will be provided the cart size of their choice, and charged accordingly. Residential dumpsters within the city will be removed. Customers outside city limits will self -haul to residential dumpsters. Multi- family residences will be served with commercial dumpsters. 5. RESIDENTIAL FEES: Under the current contract all residential customers are charged $31.00 per month for collection and disposal. The new contract provides for the following residential fees: Residential customers outside city City residential- 32 gallon City residential- 64 gallon City residential- 96 gallon All senior citizens (over 65) may apply for $7.00 /month discount 6. ADJUSTED TONNAGE AMOUNT: $41.31 + excess waste surcharge 28.90 + excess waste surcharge 34.09 + excess waste surcharge 38.31 + excess waste surcharge Residential tons of waste delivered to the landfill will be totaled annually. If total tons exceed the average of 77 tons per week, the excess disposal cost ($150 /ton) will be evenly spread over all residential customers in the form of excess waste surcharge on each bill. EXCLUSIVE SERVICE CONTRACT RESIDENTIAL AND COMMERCIAL REFUSE COLLECTION AND TRANSPORTATION To MB LANDFILL BETWEEN KODIAK ISLAND BOROUGH AND ALASKA PACIFIC ENVIRONMENTAL SERVICE, LLC COLLECTION SERVICES CONTRACT 1 Kodiak Island Borough, AK TABLE OF CONTENTS RECITALS 8 ARTICLE 1 EXCLUSIVE CONTRACT 8 ARTICLE 2 REPRESENTATIONS AND WARRANTIES 9 2.01 Of Contractor 9 2.02 Of KIB 9 ARTICLE 3 TERM OF CONTRACT 9 3.01 Term 9 3.02 Survival of Certain Provisions 9 3.03 Contractor's Obligations Upon Expiration or Termination 10 3.04 New Contract 10 ARTICLE 4 REFUSE COLLECTION AND TRANSPORTATION TO KIB LANDFILL 10 4.01 Scope of Services and Specifications 10 ARTICLE 5 FUTURE PROGRAM CONSIDERATION: RECYCLABLES COLLECTION AND PROCESSING 10 5.01 Right of First Proposal 10 ARTICLE 6 DROP BOX COLLECTION AND TRANSPORTATION 10 6.01 Scope of Contract Services and Specifications 10 ARTICLE 7 GENERAL COLLECTION PERFORMANCE OBLIGATIONS AND STANDARDS 11 7.01 Scope of Contract Services and Specifications 11 ARTICLE 8 REFUSE DISPOSAL 11 8.01 Scope of Contract Services and Specifications 11 1 COLLECTION SERVICES CONTRACT 1 Kodiak Island Borough, AK ARTICLE 9 MISCELLANEOUS PERFORMANCE OBLIGATIONS 11 9.01 Compliance with Law 11 9.02 Personnel 12 9.03 Responsiveness to KIB 13 ARTICLE 10 RECORDS AND REPORTING 13 10.01 Records 13 10.02 Reporting 14 10.03 Financial Records and Reports 14 ARTICLE 11 INDEMNITIES, INSURANCE, LETTER OF CREDIT 15 11.01 Insurance 15 11.02 Contractor Indemnity, Defense and Release 18 11.03 Letter of Credit 19 11.04 Guaranty Agreement 20 11.05 Assurance of Performance 20 ARTICLE 12 CHANGE IN SCOPE OF SERVICE 20 12.01 Change in Performance Obligations 20 12.02 Proposal 21 12.03 Independent Expert 22 ARTICLE 13 CONTRACTOR SERVICE FEE, CUSTOMER SPECIAL SERVICE SURCHARGES 23 13.01 Customer Service Fee 23 13.02 Inclusiveness 24 13.03 Adjustment of Contractor Service Fee 24 COLLECTION SERVICES CONTRACT 1 Kodiak Island Borough, AK ARTICLE 14 BREACHES, DEFAULTS AND REMEDIES 30 14.01 Certain Breaches; Liquidated Damages and Specific Compensatory Damages 30 14.02 Defaults 33 14.03 Breaches and Defaults Excused 36 14.04 Remedies. 37 14.05 Additional Compensatory Damages 38 14.06 Waivers 39 14.07 Jurisdiction; Venue, Costs 39 14.08 Enforcement Costs 39 14.09 KIB Right to Perform 39 ARTICLE 15 SUSPENSION OR TERMINATION 42 15.01 KIB Right to Suspend or Terminate 42 15.02 Criminal Activity 43 ARTICLE 16 TRANSFER OF AGREEMENT 44 16.01 Transfer 44 ARTICLE 17 THE PARTIES 46 17.01 Contractor Is Independent Contractor 46 17.02 Parties in Interest 46 17.03 Binding on Successors 46 17.04 Further Assurances 46 17.05 Actions of KIB in Its Governmental Capacity 46 17.06 Contractor's Obligations Performed at Its Sole Expense 46 17.07 Parties Representatives 47 4 COLLECTION SERVICES CONTRACT Kodiak Island Borough, AK 17.08 Due Diligence 47 17.09 No Use of KIB Name 47 17.10 Subcontractors 47 ARTICLE 18 AMENDMENTS 48 18.01 Amendments 48 ARTICLE 19 NOTICES, CONSENTS, APPROVALS, ETC. 49 19.01 Notices, etc. 49 19.01 Writing Requirements 49 19.03 Exercise of Options 49 ARTICLE 20 DEFINITIONS AND INTERPRETATION OF CONTRACT 50 20.01 Definitions 50 20.02 Interpretation of Contract 50 20.03 Integration 50 21.04 Governing Law 51 20.05 Severability 51 20.06 Interpretation 52 20.07 New Contract 52 ARTICLE 21 EXECUTION OF CONTRACT 52 21.01 Execution in Counterparts 52 21.02 Authority to Execute 52 ATTACHMENT 2.01 CONTRACTOR'S REPRESENTATIONS AND WARRANTIES. 53 ATTACHMENT 2.02 KIB'S REPRESENTATIONS AND WARRANTIES 54 ATTACHMENT 4 REFUSE COLLECTION AND TRANSPORTATION TO KIB LANDFILL 55 5 COLLECTION SERVICES CONTRACT 1 Kodiak Island Borough, AK 4 -3.03 Obligations Upon Termination or Expiration 55 4-4.01 Automated Refuse Collection in Carts 55 4 -4.02 Collection in Dumpsters or Compactors 56 4 -4.03 On -call, Monthly Bulky Items Collection 58 4 -4.04 Emergency Services 58 4 -4.09 Mandatory Service Notice 58 ATTACHMENT 5FUTURE PROGRAM CONSIDERATION: RECYCLABLES COLLECTION AND PR( 5 -5.01 KIB Recyclables Program Specifications 59 ATTACHMENT 6 DROP BOX COLLECTION AND TRANSPORTATION59 6 -6.01 On -call Temporary Dumpster and Roll -off Service 59 6 -6.02 Weekly Residential Roll-off Service 60 6 -6.03 Roll -Off Container at KIB Landfill 58 ATTACHMENT 7GENERAL COLLECTION PERFORMANCE OBLIGATIONS AND STANDARDS 7 -7.01 Missed Pickups and Other Complaints 61 7 -7.02 Unpermitted Waste Screening 62 7 -7.03 Contract Service Exceptions 62 7 -7.04 Transition and Customer Education 63 7 -7.05 Other Special Customer Services 63 7 -7.06 Contract Service Assets 64 7 -7.07 Customer Billing; Bill & KIB Fee Collection 64 7 -7.08 Containers 65 7 -7.09 Customer Service Subscription and Bill of Rights 66 7 -14.01 Liquidated Damages 67 ATTACHMENT 8 REFUSE DISPOSAL ATTACHMENT69 6 COLLECTION SERVICES CONTRACT 1 Kodiak Island Borough, AK 8 -1.01 Transportation to KIB Landfill 69 8 -1.02 Limited Disposal Defense and Indemnification 69 ATTACHMENT 13.01 CONTRACTOR SERVICE FEE SCHEDULE71 ATTACHMENT 20.01 DEFINITIONS74 APPENDIX: CONTRACTOR INFORMATION AND DOCUMENTATION 92 7 COLLECTION SERVICES CONTRACT 1 Kodiak Island Borough, AK "Day" means a calendar day. CONVENTIONS USED IN THIS CONTRACT In this Agreement words have the meanings defined in Attachment 20.01 appended as the last attachment to this Agreement. "Including ", "Include" or variations thereof means "including without limitation, "including, but not limited to" and "including, at a minimum ". "Promptly" or "Prompt" means as soon as practicable, but not more than two days. "Such as" means "for example ". RECITALS: The Parties refer to the following facts, using terms defined in Attachment 20.01. MB is responsible for protection of public health and the environment in its jurisdiction. Historically, KIB has contracted for residential service in dumpsters, which has created a nuisance and appearance problem with litter. This Contract provides service to residential (and some commercial) customers in wheeled carts, as a measure to minimize nuisance and reduce litter. KIB owns its landfill and may be liable for pollution caused by materials discarded in the landfill. This Contract helps MB minimize its potential pollution liabilities through performance specifications, such as unpermitted waste screening protocols. MB has provided customer billing and bill collection services for solid waste services. This Contract reduces MB's administrative cost through performance specifications that require the contractor to provide those services. KIB 's existing contract for solid waste collection services is expiring, and MB conducted the competitive procurement pursuant to which this Contract was awarded in order to secure the most comprehensive services for the best price. By entering into this Contract, MB establishes performance standards, customers' rights and program enforcement flexibility. NOW, THEREFORE, in consideration of the mutual obligations of the Parties under this Contract and the conditions under this Contract, MB and Contractor agree as follows: ARTICLE 1: EXCLUSIVE CONTRACT 1.01 Exclusive Right and Privilege to Provide Contract Services. MB grants Contractor the exclusive right and privilege together with the obligation to provide Contract Service in the Contract Service Area conditioned on Contractor being at all times ready, willing, and able to COLLECTION SERVICES CONTRACT !Kodiak Island Borough, AK meet each and every Performance Obligation. ARTICLE 2: REPRESENTATIONS AND WARRANTIES 2.01 Of Contractor. Contractor makes the representations and warranties in Attachment 2.01 on the date it executes this Contract. 2.02 Of MB. KIB makes the representations and warranties in Attachment 2.02 on the date it executes this Contract. ARTICLE 3: TERM OF CONTRACT 3.01 Term. a. Contract Commencement Date and ex iration of Term. The Term commences on the Contract Commencement Date, _ 1, 2010 and expires at the end of 7 years after the Contract Commencement Date, unless extended. b. Collection Commencement Date. The Collection Commencement Date is July 1, 2010. 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 c), KIB, in its sole discretion, may extend the Term for up to six months. d. MB options to extend Term. On or before 60 days prior to the following dates: (1) expiration of the original Term under subsection a), (2) the extended Term under subsection b), or (3) a portion of the maximum allowable extended term under this subsection, MB, in its sole discretion, 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 Survival of Certain Provisions. The following provisions of this Contract will survive the Tenn: (1) all acknowledgements, representations and warranties of the Parties in this Contract, (2) all Indemnities, (3) Contractor Payment Obligations or claims therefore, (4) all Contractor's Performance Obligations and KIB's rights with respect to Records, including giving MB a copy of Records, or allowing MB 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 KM has the right to acquire). (5) all Contractor's Performance Obligations and MB's rights with respect to Reports; including submitting final Reports, COLLECTION SERVICES CONTRACT 1 Kodiak Island Borough, AK (6) providing endorsements extending coverage of claims made insurance policies, if KIB waives the claims made requirement and allows claims made insurance policies, (7) any other provision that expressly states that it survives the Termination Date (such transfer of Cart ownership to KIB), and (8) any right of either Party vested and any obligation of either Parties accrued before the Termination Date. After the Termination Date, Contractor has no other Performance Obligations or rights under this Contract. 3.03 Contractor's Obligations Upon Expiration or Termination. OBLIGATIONS IN THIS SECTION SURVIVE THE EXPIRATION OR TERMINATION OF THIS CONTRACT. If Contractor is not awarded an agreement to continue to provide MSW Management Services substantially similar to Contract Services after the expiration or termination of this Contract, prior to and after that expiration or termination, Contractor will cooperate fully with KIB and the succeeding contractor(s), licensee(s), permittee(s) or other Person(s) providing MSW Management Services to assure a smooth, efficient, orderly, timely and effective transition of and delivery of MSW Management Services to Contractor's former Customers. 3.04 New Contract. This Contract is a new obligation between the Parties and is a novation, substitution and replacement for any contract or agreement between the Parties entered into before the Contract Commencement Date with respect to Contract Services. ARTICLE 4: REFUSE COLLECTION AND TRANSPORTATION TO MB LANDFILL 4.01 Scope of Services and Specifications. Beginning on the Contract Commencement Date (or Collection Commencement Date, if specified), Contractor will provide Contract Service and satisfy Performance Obligations in Attachment 4. ARTICLE 5: FUTURE PROGRAM CONSIDERATION: RECYCLABLES COLLECTION AND PROCESSING 5.01 Right of First Proposal. If KIB intends to implement a recycling program, it will first solicit a proposal from Contractor under Attachment 5. ARTICLE 6: DROP BOX COLLECTION AND TRANSPORTATION 6.01 Scope of Contract Services and Specifications. Beginning on the Contract Commencement Date, Contractor will provide Contract Service and satisfy Performance Obligations in Attachment 6. 1 l) COLLECTION SERVICES CONTRACT 1 Kodiak Island Borough, AK ARTICLE 7: GENERAL COLLECTION PERFORMANCE OBLIGATIONS AND STANDARDS 7.01 Scope of Contract Services and Specifications. Beginning on the Contract Commencement Date, Contractor will provide Contract Service and satisfy Performance Obligations in Attachment 7. ARTICLE 8: REFUSE DISPOSAL 8.01 Scope of Contract Services and Specifications. Beginning on the Contract Commencement Date, Contractor will provide Contract Service and satisfy Performance Obligations in Attachment 8. ARTICLE 9: MISCELLANEOUS PERFORMANCE OBLIGATIONS 9.01 Compliance with Law. a. Compliance. Contractor will comply with all Applicable Laws, including securing and maintaining all Permits. No Performance Obligation may be construed to relieve Contractor of any obligations imposed by Applicable Law. If a Permit issued by MB remains in effect after the expiration or termination of this Contract, Contractor nevertheless may not operate within MB for collection of Solid Waste formerly collected under this Contract. THIS PROHIBITION WILL SURVIVE THE TERMINATION OF THIS CONTRACT and MB may seek specific enforcement of this prohibition under Section 14.04. Promptly upon MB request, Contractor will give KIB copies of Permits and documentation evidencing that Contractor is in compliance with its Permits. b. References. 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 MB's administration and specific enforcement of this Contract. Those references may not be construed to constitute lack of Contractor obligation to comply with other provisions or requirements of Applicable Law that are not specifically referred to or cited in this Contract. If any provision of this Contract is more stringent than Applicable Law, Contractor will comply with that provision. c. Fines and penalties. Contractor is solely liable for all fines and penalties that are imposed on Contractor or due to Contractor's actions, including fines and penalties that are the result of Contractor's Violation of Applicable Law (including Permits). Contractor will not seek reimbursement from MB or any Customer for any fines or penalties. d. Contractual Obligations. Applicable Law is incorporated in this Contract by reference as if set forth fully in this Contract as contractual Performance Obligations of Contractor to COLLECTION SERVICES CONTRACT 1 Kodiak Island Borough, AK KIB. 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, MB 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 under Section 14.01) whether or not noncompliance with those provisions of Applicable Law has become a Violation. Neither prosecution of Contractor for noncompliance with Applicable Law or enforcement of Applicable Law is 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. MB has no obligation to enforce any Applicable Law. 2. Violation. Violation of Applicable Law is a Default subject to contest under Section 14.02. e. KIB's Protection of Public Safety, Health, and Welfare. Contractor acknowledges that MB 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 MB's police power to take any action that MB deems necessary or appropriate in its sole discretion to protect the public's safety, health, and welfare. f. Compliance with MB Code. Contractor must comply with the MB 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 MB Code. Contractor must pay Liquidated Damages with respect to non - compliance with specified provisions of the MB Code, including failure to remedy any Violation of MB Code within five days of the date of notice of Violation, and in the event of conviction of a Violation. 9.02 Personnel. a. Identification, Appearance, Conduct. Contractor will train and require each of its personnel to: (1) present a neat, tidy and orderly appearance, (uniforms and safety vests required), (2) conduct his or her self in a courteous manner, (3) refrain from using loud or profane language, (4) perform Collection as quietly 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 other Regulatory Authority is a Breach. 12 COLLECTION SERVICES CONTRACT I Kodiak Island Borough, AK 9.03 Responsiveness to MB. a. Phone calls. Contractor will return telephone calls from MB to the individual who made that call no later than the next MB Business Day. b. Meetings. Within one week of oral or written direction by MB, Contractor will meet with MB during MB Office Hours at the offices directed by KIB. c. E- mails. Contractor will respond to all e-mails from MB within 48 hours of receipt (except on weekends and Holidays). d. Written correspondence. Contractor will respond to written correspondence from KIB within one week of receipt or other time specified by MB. ARTICLE 10: RECORDS AND REPORTING Contractor acknowledges MB's right to review Records and receive reports, for reasons including: (1) enforcing Customers' rights; (2) evaluating Contractor's performance under and in compliance with this Contract; (3) exercising MB's rights to perform, or cause a third Person to perform; Contractor's Performance Obligations in certain events, such as Defaults and Uncontrollable Circumstances; and (4) determining and corroborating the amount of any Contractor Payment Obligation. 10.01 Records. a. Maintenance. Contractor will keep accurate and complete Records. b. Preservation and Retention. Unless otherwise directed by MB, Contractor will preserve and retain Records (other than Refuse Disposal Records or Delivery Data), such as Customer billing Records, for the following periods of time: (1) until at least 2 years after the Termination Date, or (2) any longer period required by Applicable Law. c. MB Inspection and Audit. 1. Location. (i) MB Offices. Upon 3 Service Days advance telephonic or written request by MB, Contractor will use Reasonable Business Efforts to provide copies of Records to MB and its designees for inspection, review or audit at MB's offices. For example, Contractor might email or physically mail documents from a site outside KIB. COLLECTION SERVICES CONTRACT 1 Kodiak Island Borough, AK (ii) Contractor Office or Service office within MB. If Contractor cannot provide KIB with copies of Records within the notice period provided under subsection c.1.(i) using Reasonable Business Efforts, Contractor will make those Records available to KIB or its designees for inspection, review or audit at Contractor Office (or if Contractor's Office is not located within 25 miles of KIB 's administrative offices, at a location within MB) during Contractor Office Hours. 2. Scope of inspection or audit: MB may do any or all of the following: (i) inspect and review Records at any time following notice under subsection c.1.(i), or (ii) audit Records once each Contract Year, including verification of any of the following: (iii) Customer Special Service Surcharges that Contractor charged to and collected from Customers, (iv) any Contract Fees, (v) Solid Waste tonnage Collected, Processed, Diverted or Disposed, (vi) Collection Customer complaint logs, and (vii) other Records that confirm compliance with Performance Obligations. Promptly upon request, Contractor will provide MB or its designees with any additional information (such as primary records supporting reports) relevant to this Contract. 10.02 Reporting. a. Annual. Contractor will submit a complete Annual Report to MB no later than 45 days after the end of the Contract Year (or at direction of MB, Calendar Year), for the preceding Contract Year (or Calendar Year). b. Additional Information. Promptly upon MB request, Contractor will prepare interim Reports more frequently than annually and incorporate additional information into Reports. 10.03 Financial Records and Reports. a. Maintenance of Records. 1. Content. Contractor will maintain in Contractor Office accurate and complete financial Records of the following: (i) Customer receipts, (ii) payments to MB (including Contractor Payment Obligations, such as any Contract Fee), (iii) costs and expenses associated with satisfying Performance Obligations, whether by Contractor or an Affiliate. Contractor may maintain financial Records associated with Goods or Services provided by an Affiliate in the office of the Affiliate but will provide MB with a copy of those Records within I4 COLLECTION SERVICES CONTRACT 1 Kodiak Island Borough, AK 10 days of MB request. 2. Form. Contractor will maintain its financial Records on an accrual basis and in accordance with Generally Accepted Accounting Principles showing the results of Contractor's operations under this Contract separately from other operations under other contracts or in other locations, as if Contractor were an independent entity providing service only to MB. ARTICLE 11: INDEMNITIES, INSURANCE, LETTER OF CREDIT 11.01 Insurance. a. Coverage Requirements. Without limiting its Indemnities, Contractor will secure and maintain insurance coverage meeting the requirements in this Section. MB 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 Article 12. Contractor may use a combination of primary and excess insurance coverage to satisfy these requirements. MB 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. I5 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 cargo. With a limit of not less than $2 million per occurrence covering loss (including cleanup costs) that the Contractor becomes legally obligated to pay as a result of claims for bodily injury, property damage, and cleanup costs (including expenses required by environmental laws or incurred by federal, state, MB or third parties) resulting from pollution conditions caused by transported cargo (including waste). For the purpose of this subsection, "pollution conditions" includes the dispersal, discharge, release, or escape of any solid, liquid, gaseous or thermal irritant or contaminant (such as smoke, vapors, soot, fumes, acids, alkalis, toxic chemicals, medical waste, and waste materials) into or upon land, any structure on land, the atmosphere, or any watercourse or body of water (including groundwater), provided the conditions are not naturally present in the environment in the amounts or concentrations discovered. Contractor's general liability policy may be endorsed to provide for this pollution liability coverage. COLLECTION SERVICES CONTRACT I Kodiak Island Borough, AK I 6 3. Automobile Liability Coverage. Insurance meeting the following requirements: (i) 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, (ii) 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 (iii) covering all Vehicles that drive on public roads. If Contractor is subject to federal regulations, Contractor also will maintain any other coverage necessary to satisfy state or federal financial responsibility requirements. 4. Workers' Compensation and Employers' Liability. Insurance providing the following: (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: Disease - policy limit: Disease - each employee: (1) on or before the Contract Commencement Date, (2) with submission of each Annual Report, (3) promptly upon renewal of policies, and (4) within 10 days of KIB's request. $1 million $1 million $1 million b. Insurer qualifications. Contractor will secure insurance provided by an insurer meeting the following qualifications: (1) is acceptable to MB, (2) is an admitted company in State, (3) has a size category of VII or larger by A.M. Best Company, Inc., and (4) has a rating of A or better by A.M. 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 COIs, endorsements, schedules and other evidence of insurance coverage requested by and acceptable to at MB at the following times: COLLECTION SERVICES CONTRACT Kodiak Island Borough, AK i. 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: (a) Contract name: Explicitly identifying 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; (b) Types, policy numbers, policy effective / expiration dates and limits: Explicitly reference each type and corresponding limit of coverage required under this Contract, together with the following: • policy numbers, • effective / expiration dates, and • identification of each required 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); (c) 30 days' cancellation notice: Containing the express condition that KIB must be given written notice by mail at least 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 ". (d) Deductibles and self - insured retentions: Identifying any deductible and self - insured retention. Upon MB 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 MB 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 (e) Claims made: If MB waives the prohibition on procuring claims made policies and insurance coverage is written on a claims -made form, then evidence that the "retro date" is before the Contract Commencement Date. Contractor must maintain that coverage for at least 5 years after the Termination Date (or longer as required under this Contract). Promptly upon MB request, Contractor must provide MB with evidence of that coverage. THIS PROVISION SURVIVES THE TERMINATION OF THIS CONTRACT. 17 COLLECTION SERVICES CONTRACT I Kodiak Island Borough, AK ii. Endorsements: Contractor must provide copies of the following endorsements or other documentation with respect to Contractor and any Subcontractor satisfactory to KIB: (a) additional insured endorsement to each liability policy, explicitly adding KIB and its "officers, agents, and employees" as additional insured; (b) waiver of subrogation; (c) insurance is primary and not contributing with any other insurance or self - insurance programs maintained by MB and its officers and employees; (d) excluding any "insured v. insured" clause in a liability policy with respect to MB as an additional insured; and (e) providing dedicated limits under a liability policy in favor of MB as an additional insured. iii. 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 ". iv. SiEnature verification. At KIB 's request, Contractor must provide documentation verifying that the individual signing or countersigning the certificates, policies, endorsements, or other evidence of coverage of Contractor and any Subcontractor is authorized to do so and identifies his or her company affiliation and title. MB may require complete, certified copies of Contractor's insurance policies at any time. e. 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 MB of the claim. f. Contractor accounting. Contractor will institute a comprehensive accounting system satisfactory to MB to monitor all insurance requirements under this Contract, including those of each of its Subcontractors. g. Contractor compliance. Contractor will comply with all requirements of its insurance policies and insurers. 11.02 Contractor Indemnity, Defense and Release. a. General. To the extent allowable under Applicable Law, Contractor will (1) Indemnify and hold harmless, (2) defend with counsel approved by KIB, and (3) release KIB and MB's Related Parties from and against all Liabilities and Losses paid, incurred or suffered by, or asserted against, MB or MB's Related Parties arising out of or in connection with this Contract, including in connection with any alleged failure of MB or MB's Related Parties to enforce provisions of this Contract or of Applicable Law. IS COLLECTION SERVICES CONTRACT 1 Kodiak Island Borough, AK b. Indemnity During Term Only. 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 WILL 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 15 days of KIB request, Contractor will pay KIB's Reimbursement Costs. 11.03 Letter of Credit. Contractor will provide for the issuance of an irrevocable standby letter of credit (the "Letter of Credit ") for the benefit of MB in form satisfactory to MB by a financial institution (the "Bank ") having at least one of the following minimum ratings: (1) Moody's A2 or better LT Issuer Credit and B or better for Bank Financial Strength, (2) Standard and Poor's: A or better for LT Issuer Credit, (3) Bauer Financial: 4 Stars or better, (4) TheStreet.com Ratings: B or better: Contractor will provide for a letter of credit in the following amount (the "Stated Amount "): (i) During the first Contract Year (or balance of the first Contract Year if less than 12 months), the amount of gross Contractor Service Fees projected by MB for 4 months, (ii) During the second Contract Year, an amount equal to the following: (a) 110% of the average amount of gross Contractor Service Fees that Contractor received during any 4 months the first Contract Year, or (b) if the first Contract Year was less than 4 months, 110% of KIB's projection of the amount that Contractor would have received during 4 full months. (iii) During the third and following Contract Year(s), an amount equal to 110% of gross Contractor Service Fees that Contractor received during the prior Contract Year. (6) MB may draw on the Letter of Credit, in one or more drawings, in any of the following events as evidenced to the satisfaction of MB: (i) a Default, or (ii) Contractor is unable to regularly pay its bills as they become due, or (iii) Contractor fails to timely pay any Solid Waste Management Facility, fuel supplier or employee; or (iv) Contractor fails to pay an Insurance deductible or self - insured retention. (7) The Letter of Credit may expire no earlier than the date on which the Bank receives a certificate from MB stating the following: (i) this Contract has expired, or (ii) this Contract has been terminated for a period of 180 days or other preference period provided under Applicable Law with respect to bankruptcy or insolvency, or (iii) Contractor has substituted an alternative letter of credit or other security document acceptable to MB in MB's sole discretion, and (iv) Contractor does not owe MB any money. I COLLECTION SERVICES CONTRACT 1 Kodiak Island Borough, AK THIS SECTION WILL SURVIVE THE TERMINATION OF THIS CONTRACT. The form of the Letter of Credit, including the procedures and place of demand for payment and drawing certificate attached to the Letter of Credit, must be satisfactory to KIB. The Letter of Credit must be transferable to any successor or assign KIB. 11.04 Guaranty Agreement. Any Person that provided the basis of KIB's evaluation of the financial strength and creditworthiness of Contract in Contractor's proposal to KIB with respect to this Contract (or other Person identified by MB), must be a legal, valid and binding Guaranty by that Affiliate as Guarantor, satisfactory to MB. 11.05 Assurance of Performance. In its sole discretion and in addition to all other remedies it may have, KIB may demand from Contractor reasonable assurances of full satisfaction of Performance Obligations by a specified date, in any or all of the following events: (1) Labor unrest: Contractor is the subject of any labor unrest (including work stoppage or slowdown, sick -out, picketing, lock -out or other concerted job action) in excess of 6 days; (2) unable to pay bills: Contractor appears in the judgment of MB to be unable to regularly pay its bills as they become due, including failure to time pay the following: (i) with respect to a Contractor, a tipping fee at any Solid Waste Management Facility, (ii) any Insurance deductibles or self insured retention, (iii) any employee's wages, and (iv) non - payment of any other bill for over 60 days; or (3) monetary judgments: Contractor is the subject of fines, penalties, or civil or criminal judgment or order entered by a Regulatory Authority, which judgment is in excess of the past 3 months' Contractor Service Fees or requires estimated expenditure by Contractor in excess of those 3 months' Contractor Service Fees. ARTICLE 12: CHANGE IN SCOPE OF SERVICE 12.01 Change in Performance Obligations. a. At MB Direction. MB may direct Contractor to implement a change of Performance Obligations in the Contract Service Area following: (1) request for, submission of and review of Contractor's proposal under Section 12.02a -c, and (2) agreement of the Parties or determination of the Independent Expert under Section 12.02d. Contractor will submit its proposal within 10 MB Business Days of receiving MB's request for proposal (or a longer period that MB may designate in light of the complexity or magnitude of the directed change). b. Upon Contractor Proposal. Contractor may propose to KIB a change in the scope of Contract Services under Section 12.02, such as the following: (1) new developments in collection technologies that would improve Contract Service efficiency and reduce the Contractor Service Fee, pollution or environmental impact; (2) a program that would increase Diversion; and (3) changes in operations necessitated by a Change in Law. 2() COLLECTION SERVICES CONTRACT I Kodiak Island Borough, AK 12.02 Proposal. a. Contents. In its proposal Contractor must describe its detailed plan for implementing the requested or proposed change, including 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: (i) modifying Vehicle(s); (ii) adding Receptacle(s), Vehicle(s) or routes; (iii) shortening or extending route time; (iv) laying off or supplementing labor; and (v) increasing transportation distance or time to a Solid Waste Management Facility. KIB may withdraw the request for proposal at any time, for any reason, including receipt of a proposal from Contractor unsatisfactory to MB. Contractor will include documentation supporting its proposal satisfactory to KIB. b. Offer. Contractor's proposal will be deemed Contractor's offer to MB to implement the directed or proposed change. Contractor's proposal will remain binding for at least 30 days from the date submitted to MB. c. Review. 21 (1) Response /Comments. Within 20 MB Business Days of receiving Contractor's proposal, MB may review, approve, or disapprove the proposal and comment on it. If MB 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, MB may review, approve or disapprove the proposal within 45 days. (2) Acceptance of Comments. Contractor will accept or reject any comments within 15 MB Business Days of receiving them. If Contractor accepts the comments, MB will prepare amendments to this Contract that will implement the proposal, satisfactory to Contractor. (3) Resection of Comments / NeEotiations. If Contractor rejects MB's comments, the Parties will negotiate in good faith for a period of at least 15 MB Business Days following Contractor's receipt of MB comments. COLLECTION SERVICES CONTRACT I Kodiak Island Borough, AK d. Failure to agree. 12.03 Independent Expert a. Selection (1) KIB- directed change. If the Parties cannot reach agreement on a proposal directed by KIB by the end of those 15 KIB Business Days, KIB may take either of the following actions: (i) implement the change itself or through another Person, or (ii) request binding dispute resolution by the Independent Expert. (2) Contractor - initiated proposal ... Changes in Law. If the Parties cannot reach agreement on a proposal initiated by Contractor by the end of those 15 KIB Business Days of negotiation, the proposal is deemed rejected and this Contract will not be amended except that if Parties cannot reach agreement on a proposal initiated by Contractor due to a Change in Law, Contractor may request binding dispute resolution by the Independent Expert under Section 12.03d. (1) Exchange of lists. Following the Contract Commencement Date, Parties will expeditiously select an Independent Expert to keep on retainer in the event the Parties wish to settle disagreement over Contractor's proposal described in Section 12.02, in the selection manner described in this subsection a.(1). If the Person selected as Independent Expert resigns or can no longer serve in capacity as Independent Expert (for example, if he or she subsequently works for either Party, creating conflicts), within 5 days of either Party's request for dispute resolution, Contractor and KIB will to the following: (i) prepare 2 lists (one each) of 5 independent Persons having experience in MSW Management Services as applicable in the Parties' dispute (such as automated collection in carts), in numerical order with the first preference at the top, and (ii) exchange and compare lists. The Person having the lowest total rank order position on the 2 lists will be the Independent Expert. In case of a tie in scores, the Person having the smallest difference between the rankings of the 2 parties will be selected; other ties will be determined by a coin toss. If no Person appears on both lists, Parties will repeat this procedure within the next 5 days. (2) Selection by experts. If selection is not completed after the exchange of 2 lists or 10 days, whichever comes first, then each Party will promptly select one expert having experience described above and within 5 days of selection, the 2 experts will together select an Independent Expert. b. Costs. Parties will share the Independent Expert's costs and fees equally. COLLECTION SERVICES CONTRACT I Kodiak Island Borough, AK c. Communications with Independent Expert. Neither Party will communicate orally with the Independent Expert unless the other Party is privy thereto. Neither Party will communicate in writing with the Independent Expert unless it simultaneously sends copies of that communication to the other Party. d. Determination Protocol (1) In addition to KIB's or Contractor's request for binding dispute resolution under Section 12.01d., either Party may request non - binding dispute resolution on any matter relating to Contract Services or, upon agreement of the other Party, binding dispute resolution. (2) The Party requesting dispute resolution will give the other Party and the Independent Expert a description of the disagreement and that Party's position thereon. (3) Within 10 days, the other Party may give the Party seeking dispute resolution and the Independent Expert a description of its position. (4) The Independent Expert may make one request for additional information and documentation before the later of the following times: (i) 10 days after receiving the request for dispute resolution, or (ii) After receiving both Parties' description of their respective positions. (5) Promptly upon request by the Independent Expert, either or both Parties will provide the Independent Expert with additional information and documentation and simultaneously provide the other Party with copies thereof. (6) Within 25 days of receiving a request for dispute resolution, the Independent Expert will make its determination based on the submissions of the Parties, the provisions of this Contract, its experience with similar services and disagreements, and other factual determinations it may make regarding the Parties' disagreement over the proposal. (7) The determination is binding on the Parties, unless the Parties agree otherwise. e. Exercise of remedies. Pending the Independent Expert's determination, the Parties may exercise any remedies they have under this Contract or Applicable Law. ARTICLE 13: CONTRACTOR SERVICE FEE, CUSTOMER SPECIAL SERVICE SURCHARGES 13.01 Contractor Service Fee. 1111=iltts paid by Ea , forr Diiount. On ga illitul y 1 (or other 11 designated a. ounts paid by Customers for subscribed Service. Contractor may charge ntractor Service Fees to Customers as compensation for providing Contract Services compliance with all Performance Obligations. The Contractor Service Fee will not ange except under Section 13.03. The Tonnage Adjustment Amount will be added to btracted from the Contractor Service Fee under Section 13.03B. COLLECTION SERVICES CONTRACT 1 Kodiak Island Borough, AK 13.02 Inclusiveness. costs, plus profit or following: (1) 24 I KIB but no more than annually, such as quarterly) KIB will pay Contractor the gregate amount of Senior Discounts that Contractor gave Customers during the period ginning April 1 of the prior year and ending March 31 of that year (or period mmensurated111111111payment date desig KIB)i labor (including wages and fringe benefits), including drivers, Customer service personnel, supervisors, and administrators, acquisition, repair and maintenance of Contract Service Assets (including buildings and grounds, and Vehicles), (3) tools and supplies, (4) fuel and utilities, (5) Insurance premiums and fees for the Letter of Credit or any further assurance of performance, taxes, securing and maintaining Permits and complying with Applicable Law, fines and penalties for violation of Permits or Applicable Law, 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 at KIB Landfill), and (13) any other cost of providing Contract Services not explicitly compensated by surcharge to Customer or charge to MB. (2) (6) ( ( (9) The Contractor Service Fee includes all Contractor's direct costs, indirect return of investment for providing Contract Services, including the Contractor Service Fee is not adjusted for changes in these costs, except under Section 13.03. Reference in this Contract to providing Contract Services "without surcharge" or similar language does not infer that absence those words, "without surcharge ", elsewhere in this Contract, means that Contractor is entitled to either of the following: (a) compensation in addition to the Contractor Service Fee listed on the Contractor Service Fee Schedule; or (b) reimbursement of Direct Costs or Contractor's Reimbursement Costs. 13.03 Adjustment of Contractor Service Fee. a. Adjustment events and timing. The Contractor Service Fee will be adjusted at the following times: (i) upon Contractor's request submitted to MB at least 60 days in advance of implementation, or (ii) upon direction of MB, in its sole discretion. COLLECTION SERVICES CONTRACT 1 Kodiak Island Borough, AK 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. Contractor's statement is for convenience of MB, but is not binding on MB. MB may make corrections or adjustments to that statement. Subsection d contains a sample adjustment calculation. (1) Annual Adjustment. On July 1 in the second full Calendar Year of the Term and each following July 1, the Contractor Service Fee will be adjusted to equal the following: (01) the Contractor Service Fee in effect during the prior Contract Year (or portion of that Contract Year), plus or minus (02) the Weighted Adjustment Percentage times that Contractor Service Fee. (i) Rate Cost Component. "Rate Cost Component" means the sum of the following five portions of the Contractor Service Fee: A. Collection & Administrative Costs: 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, if any, in the CPI during the period commencing April 1 of the previous year and ending March 31 of the current year, no greater than 5 %, as confirmed by MB. "CPI" means the consumer price index (CPI -U) for Anchorage, Series ID 1982 -84 =100, published by the U.S. Department of Labor / Bureau of Labor Statistics (initial release). B. Fuel Component: Annual changes in the PPI. The fuel component identified by the Contractor for each level of service will be adjusted by the 75% of the change, if any, in the PPI during the period commencing April 1 of the previous year and ending March 31 of the current year, as confirmed by KIB. "PPI" means annual Producer Price Index Series WPU057303 for No. 2 diesel fuel, not seasonally adjusted, as published by the United States Department of Labor, Bureau of Labor Statistics as of March 31 of each year. C. Landfill Disposal Component: Change in disposal fee. The disposal cost identified by the Contractor for each level of service will be adjusted by 100% of the change, if any, in disposal fees charged Contractor at MB Landfill. D. Fixed Cost Component: No Change over the initial contract. The fixed costs identified by the Contractor for each level of service will not be COLLECTION SERVICES CONTRACT 1 Kodiak Island Borough, AK Cart Cost Components Adjustment 32 gal 64 gal 96 gal Collection & Admin Costs 1 CPI $8.91 $8.91 $8.91 Fuel 2 PPI $2.17 $2.17 $2.17 Cart rental 3 Fixed $4.34 $4.34 $4.34 Depreciation / Lease Cost 3 Fixed $1.57 $1.57 $1.57 Disposal Cost (Pass Through) 4 Actual $9.74 $14.94 $19.16 Profit 5 % of Costs $2.16 $2.16 $2.16 Total Cart Collection Rate Sum of Above $28.90 $34.09 $38.31 The following table details the rate components identified by the Contractor of each for the proposed levels of service for cart collection: 2. Adiustment for changes in operations (such as changes in Performance Obligations due to Changes in Law). As soon as possible following agreement of the Parties under Article 12, 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, including for actual changes in the price of fuel. b. Rounding. (2) Dollars. Final adjustment in Contractor Service Fee must be rounded to nearest penny. c. Preconditions to adjustment. The Contactor Service Fee will not be adjusted upwards if either of the following has occurred and remains uncured: (1) Breach, or (2) Default. adjusted and remain constant over the term of the initial contract. These costs include, but are not limited to depreciation, lease, cart and container rent. E. Operating Margin: No Change over the initial contract. The percentage of operating margin identified by the Contractor for each level of service will not be adjusted and remain constant over the term of the initial contract. (1) Calculations. Interim calculations less than 0.5 must be rounded down and 0.5 or greater, up. COLLECTION SERVICES CONTRACT Kodiak Island Borough, AK Tipping fee charges on Contract Rate Component Adjustment Method Base Year Costs Rate Adjustments Rate Year 2 Costs Cost Components Percent change 3.4% 75% Percent Change Collection & Admin Costs CPI $8.91 $0.15 $9.06 Fuel Fuel PPI $2.17 $0.28 $2.45 Cart Rental No Inflators $4.34 $- 0 $4.34 Depreciation / Lease Cost No Inflators $1.57 $- 0 $1.57 Disposal Cost (Pass Through) Actual $9.74 $0.33 $10.07 Total Rate Components $26.74 $0.76 $27.50 Margin (7.5 %) No Inflators $2.16 $0.07 $2.23 Rate (Total Rate Components + Margin) $28.90 $0.83 $29.73 Tipping fee charges on Contract $150.00 Commencement Date or last prior adjustment date (12 -month average, not month -to- month) Tipping fee charges on adjustment date $5.00 Percent change 3.4% Calculation of change in PPI April 1, 2007 - March 31, 2008 262.6 (12 -month average, not month -to- month) April 1, 2008 - March 31, 2009 285.6 2.2% (not more than 5 %) Portion of % change 75% Percent Change 23.0% Portion of % change 75% 17.25% Calculation of % change in CPI (12 -month average, not month -to- month) April 1, 2007 - March 31, 2008 189.5 April 1, 2008 - March 31, 2009 191.7 Percent Change 2.2% (not more than 5 %) Portion of % change 75% 1.65% d. Sample calculations of annual adjustments in Contractor Service Fee. 27 1. Annual adjustment of OPERATIONS PORTION due to Change in CPI 2. Annual adjustment of FUEL PORTION 3. Any changes in Tipping Fees. 4. Application of the Changes to the Rate Cost Components. 5. Adjusted Contractor Service Fee. The sum of the Rate Adjustments from the above table will be added to the Rate Cost Components to calculate the new collection rates. COLLECTION SERVICES CONTRACT 1 Kodiak Island Borough, AK 13.038 Tonnage Adjustment Amount. a. Adjustment events and timing. The Tonnage Adjustment Amount will be adjusted at the following times: (i) upon Contractor's request submitted to KIB at least 60 days in advance of implementation, or (ii) upon direction of KIB, in its sole discretion. (1) Annual Adjustment. On July 1 in the second full Calendar Year of the Term and each following July 1, the Tonnage Adjustment Amount for the prior Contract Year (or portion of Contract Year) will be replaced by the Tonnage Adjustment Amount for the next Contract Year, equal to either of the following: (01) Excess Tonnage: the number of Tons of Solid Waste that Contractor delivered to the KIB Landfill during the period from the prior April 1 to March 31 (or other annual period directed by KIB) in excess of Base Tons, multiplied by the rate (or rates) per Ton that Contractor paid KIB for disposing of that Solid Waste (or portions of that Solid Waste) in the KIB Landfill, or (02) Tonnage Shortage: if Contractor delivered less than Base Tons of Solid Waste to the KIB Landfill during the period from the prior April 1 to March 31, (or other annual period directed by KIB) the difference between the Base Tons and the Tons actually delivered multiplied by the rate per ton that KIB charges for disposal of Solid Waste at the KIB Landfill at the time of computation, divided by (03) Credit / debit for past year: the total number of residential customers in KIB (including in the City of Kodiak) as of March 31 (or other date corresponding to the end of the annual period directed by KIB (the " Past Reimbursement Amount" plus (04) Credit / debit for next Contract Amount (defined as "Future Adjustment Amount ") . This equals the Tonnage Adjustment Amount paid by each residential Customer not each Receptacle) for the next Contract Year, in which the Base Amount is readjusted t dual Disposed Tonnage of the prior Year. lip Tons" means the following: Assumed Tons: 4,004 for the first year, April 1, 2010 to March 31, 2011, and 2. Actual Tons: the actual number of Tons of Refuse that Contractor Collects from Residential Customers' Receptacles (Carts, Dumpsters or Roll -offs) during each preceding year April 1, 2011 to March 31, 2012 and each following year. COLLECTION SERVICES CONTRACT Kodiak Island Borough, AK Computations Excess Tonnage Shortfall Tonnage (1) Base Tons: i. assumed 4,004 in first year, ii. replaced by actual in each following year Excess Tonnage (over 4,004 Tons /Year) Shortfall Tonnage (less than 4,004 Tons/Year) (2) actual Disposed Tons 5,004 3,004 (3) Disposed Tons — Base Tons + 1,000 (1,000) (4) MULTIPLIED BY: Tipping Fee /Ton $150X1000=$150,000 $150X(1000)= ($150,000) (5) DIVIDED BY: Total # Residential Customers in KII (including City Carts, Residential Dumpsters and Roll -offs) 2,884 2,884 (6) ANNUAL increase / decrease -per Customer (Past Reimbursement Amount) +$52.01 ($52.01) (7) MONTHLY increase / decrease - per Customer (item 6 divided by 12 months - (Past Reimbursement Amount ) +$4.33 ($4.33) (8) Annual increase / decrease per Customer (Future Adjustment Amount) — same as item 7) +$4.33 ($4.33) 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 Tonnage Adjustment Amount in the form of the following examples or other format prescribed by KIB. Contractor's statement is for convenience of KIB, but is not binding on KIB. KIB may make corrections or adjustments to that statement. Subsection d contains a sample adjustment calculation. b. Rounding. Calculations. Interim calculations less than 0.5 must be rounded down and 0.5 or p. (2) Final adjustment in Contractor Service Fee must be rounded to nearest penn c. Preconditions to adjustment. The Contactor Service Fee will not be adjusted upwards if either of the following has occurred and remains uncured: (1) Breach, or (2) Default. d. Sample calculations of annual adjustments in Adjusted Tonnage Amount. 29 COLLECTION SERVICES CONTRACT Kodiak Island Borough, AK (9) monthly Tonnage Adjustment Amount $4.33 + $4,33 AIM (10) total adjusted monthly Contractor Service Fee: (64 gallon cart @ $34.09 /month +/ $8.33 monthly Tonnage Adjus ent kfmga $42.71 ARTICLE 14: BREACHES, DEFAULTS AND REMEDIES. KIB may enforce this Contract and exercise its remedies under this Contract in its sole discretion. 14.01 Certain Breaches; Liquidated Damages and Specific Compensatory Damages. a. Notice. If MB determines that Contractor is in Breach, KIB may assess Compensatory Damages or Liquidated Damages after giving Notice to Contractor identifying and describing the Breach. Contractor will pay those Damages within 20 days of receiving that Notice. b. Dispute. Contractor may dispute the assessment of Compensatory Damages or Liquidated Damages by Notice to KIB within 20 days of receiving the Notice of assessment, but will pay assessed Compensatory Damages or Liquidated Damages pending resolution of its dispute. In that Notice of dispute, Contractor must describe the basis for its dispute and include relevant documentation. The chief administrator of MB or his or her designee will review the Notice of dispute and make a determination as soon as practicable. His or her determination will be final. If he or she determines that MB should not have assessed all or a portion of the Compensatory Damages or Liquidated Damages, MB will return all or a portion of the Compensatory Damages or Liquidated Damages to Contractor. Contractor acknowledges that Compensatory Damages and Liquidated Damages do not constitute fines and penalties imposed by KIB as a governmental or regulatory entity, but as a contracting party. c. Liquidated Damages: Acknowledgement, Agreement and Confirmation. The Parties make the following acknowledgments: (1) MB incurred considerable time and expense negotiating this Contract to secure an improved level of collection service quality, increased Diversion and increased Customer satisfaction. Therefore consistent and reliable Contract Services are of utmost importance to MB and Customers. (2) In awarding this Contract to Contractor, MB 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 MB. (3) Quantified standards of performance are necessary and appropriate to ensure consistent and reliable Contract Service, and if Contractor fails to meet Performance Obligations, MB will suffer damages in subjective ways and in ;U COLLECTION SERVICES CONTRACT Kodiak Island Borough, AK varying degrees of intensity that are incapable of measurement in precise monetary terms, including: (i) Customers' inconvenience; (ii) anxiety, frustration and potential political pressure; (iii)criticism and complaint by Customers; (iv)loss of KIB Governing Body members' and staff time; and (v) deprivation of the benefits of this Contract and loss of bargain. It is and will be impracticable and extremely difficult to ascertain and determine the value of those damages. (4) In the event of Breach or Default, urgency of protecting public health and safety may necessitate that KIB enter into emergency or shorter arrangements for services without competitive procurement at prices substantial greater than under this Contract, and the monetary loss resulting there from is impossible to precisely quantify. 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. (5) Therefore, the Parties agree that Liquidated Damages represent a reasonable estimate of the amount of damages, considering all of the circumstances existing on the Contract Commencement Date, including the relationship of the sums to the range of harm to MB that reasonably could be anticipated and anticipation that proof of actual damages would be costly or inconvenient. In signing this Contract, each Party specifically confirms the accuracy of the acknowledgements and agreements made in this Section and the fact that each Party had ample opportunity to consult with legal counsel and obtain an explanation of this liquidated damage provision at the time that this Contract was made. KODIAK ISLAND BOROUGH, ALASKA PACIFIC ENVIRONMENTAL SERVICE, LLC ALASKA, a political subdivision By: Name: Rick L. Gifford Title: Manager Dated: Attest: By Nova M. Javier, CMC Borough Clerk 3 By: Name: Jeff Riley Title: Chief Operation Officer Dated: COLLECTION SERVICES CONTRACT I Kodiak Island Borough, AK SECTION BREACH LIQUIDATED DAMAGE 9.03 failure to timely respond to MB call in emergency $500 for each 6 hours of failure 9.03 failure to return MB calls $500 for each breach over 1 time per month 9.03 failure to meet with MB $500 for each breach over 1 time per Contract Year 9.03 failure to remedy any Violation of MB Code within 5 days notice of Violation $250 per instance 9.03 conviction of Violation under MB Code $2,500 per instance 10.02 failure to submit complete Report to MB $500 per failure / per day until complete report delivered Records, Reports, proposals, Etc. failure to timely submit any documentation to MB in form and at time required $100 per failure / per document / per day 13.01 Contractor charging any Customer more than the applicable Customer Special Service Surcharge $250 per Contractor / each Customer failure to secure satisfaction of MB, obtain any consent or approval of MB, or to give Notice to MB when required $250 per failure / per day until approval obtained or Contractor ceases action, retracts misinformation or otherwise remedies failure to satisfaction of MB In the following table, Sections listed under SECTION column describe Performance Obligations (including timeliness) to which the liquidated damages apply. Language listed under BREACH column summarizes those obligations for ease of Contract administration and enforcement, but breach is determined by (non)compliance with the referenced Section of this Contract or the MB Code. Liquidated Damages in the following chart apply to each Breach, each day: the first occurrence and continuation on successive days. For example, failure to correct a missed pickup would result in liquidated damages on the day of the scheduled pickup and each following day until corrected. COLLECTION SERVICES CONTRACT I Kodiak Island Borough, AK d. Compensatory Damages. If Contractor fails to deliver any type of Solid Waste to a facility approved by MB (such as a recyclables processing facility in connection with any recyclables collection program that may be established), then in addition to assessing Liquidated Damages, MB may in its sole discretion assess the following Compensatory Damages, and Contractor will pay KIB the following Compensatory Damages: (1) KIB's Reimbursement Costs to monitor Contractor's compliance with delivery Performance Obligations, including individuals following Collection Vehicles on Collection routes; and (2) KIB's Reimbursement Cost of enforcing or securing specific performance of Contractor's delivery obligation. 14.02 Defaults. Each act or omission described in this Section constitutes a material Breach ( "Default ") under this Contract: a. Contract Service Defaults: If Contractor believes that it cannot cure the Breach within 20 days, Contractor A. may Notify MB within 5 days of receiving MB's Notice, explaining why Contractor believes it needs additional time to effectuate a cure and proposing schedule for cure, and B. will diligently proceed to cure the breach within that schedule and report to MB on schedule implementation at the times or frequencies requested by KIB. KIB, in its sole discretion, may take any of the following acts: C. accept Contractor's proposed schedule of cure, or D. make a written demand that Contractor cure the Breach within an alternative time period set by MB, or E. exercise any remedies under this Contract, including terminating this Contract at the end of the 20 day period. (1) Uncured Breach: Contractor Breaches this Contract; and (i) MB Notifies the Contractor that an identified Breach has occurred; and (ii) Contractor does not correct that Breach within 20 days of receiving KIB's Notice. (2) Repeated Breach. Contractor repeatedly or habitually Breaches this Contract, as determined in the sole discretion of MB. (3) Contract Service failures. Contractor fails to Collect the following percent or number of pickups (regularly scheduled or by appointment) at Customer's Set - Out Sites (subject to Contract Service Exceptions): (i) 100 or more for more than 7 consecutive days, (ii) 500 or more during a 12 -month period; MB does not have to wait until the end of the 12 -month period to declare this Default, or COLLECTION SERVICES CONTRACT I Kodiak Island Borough, AK 34 (iii) at least 99.5% of pickups scheduled for a day, for more than 10 cumulative days over the Term. (4) Failure to comply with Applicable Law. (i) Violation 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; or B. Repeated. In KIB's judgment, Contractor repeatedly receives a notice, assessment or determination of the same or different Violation. (ii) Contests. If Contractor is entitled to contest and in good faith does contest 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 is entered. (5) Criminal activity. Contractor fails to effectuate cures or to timely terminate and/or replace any Contract Manager under Section 15.02. (6) Failure to timely pay Contractor Payment Obligation. Contractor fails to pay any Contractor Payment Obligation within 15 days of the date it is due and payable. ( Charging more than 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 30 days of Contractor's discovery thereof, KIB notice or Customer request. (8) Failure to allow MB 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 14.09. b. Performance Assurance Defaults. (1) Failure to provide Performance Assurance. Contractor fails to provide any Performance Assurance. (2) Seizure, 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 48 hours, excepting weekends and Holidays. COLLECTION SERVICES CONTRACT 1 Kodiak Island Borough, AK 35 Insolvency, bankruptcy. liquidation. Contractor: A. 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, or B. consents to the appointment of or taking of possession by a receiver, liquidator, assignee (other than as a part of a transfer of Contract Service Assets no longer used to provide Contract Services or backup Contract Services), trustee (other than as security of an obligation under a deed of trust), custodian, sequestration, administrator (or similar official) of Contractor for any part of Contractor's operating assets or any substantial part of Contractor's property, or C. makes any general assignment for the benefit of Contractor's creditors, or D. fails generally to pay Contractor's debts as they become due, or E. takes any action in furtherance of any of the foregoing. A. 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 B. Contractor consents to or fails to oppose any similar proceeding, or C. 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 consent required by Section 16.01. (6) Subcontract. Contractor engages a Subcontractor or enters into a Subcontract without KIB consent under Section 17.10, and does not terminate that Subcontract within 15 KIB Business Days of KIB Notice. c. False Representations; Breach of Warranties. (1) Under this Contract. (i) Contractor makes a representation or certification in or under this Contract, including Attachment 2.01, 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. COLLECTION SERVICES CONTRACT I Kodiak Island Borough, AK (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 MB in connection with or as a material inducement to entering into this Contract or any future amendment to this Contract, which representation or failed disclosure is false or misleading in any material respect when made. 14.03 Breaches and Defaults Excused. a. Uncontrollable Circumstance/ prevention and mitigation. To the extent that any Default is due to an Uncontrollable Circumstance, Contractor will not be deemed in Default for Breach of its Performance Obligations under the following Sections: (1) Section 14.02a1 and 2 (Uncured Breach; Repeated Breach), except to the extent that a Breach constitutes a Default otherwise itemized in Section 14.02a3 -8 or b, or; (2) Section 14.02a3 (Failure to Collect). if Contractor exerted the following best efforts: (i) to prevent the Breach, and; (ii to mitigate the effects of the Uncontrollable Circumstance. For example, if Contractor Breaches the Contract by failing to provide Insurance, which Breach constitutes a specific Default under Section 14.02b(1), that Breach is not excused by an Uncontrollable Circumstance. b. Contractor Notice of Uncontrollable Circumstance. Contractor will give immediate Notice of an Uncontrollable Circumstance to MB, including: (1) describing the Breach for which Contractor seeks to be excused; (2) the expected duration of the Uncontrollable Circumstance; (3) the extent to which Contractor may curtail Contract Services; (4) any requests or suggestions to mitigate the adverse effects of the Uncontrollable Circumstance. c. KIB's Rights. 36 (1) Perform Contract Services. Notwithstanding that a Breach due to Uncontrollable Circumstances does not constitute a Default, after the continuance of the Breach for 48 hours, in its sole discretion, MB may nevertheless perform (or cause to be performed) Contract Services in the Contract Service Area itself under Section 14.09. (2) Exercise other remedies. After the continuance of any Breach for 30 days, MB may, in its sole discretion, exercise any other remedy under this Contract, including suspending or terminating this Contract under Section 15.01. COLLECTION SERVICES CONTRACT 1 Kodiak Island Borough, AK 14.04 Remedies. a. As provided by law. Either Party may exercise any and all remedies available under law or equity for the other Party's breach of this Contract. A Party's exercise of any one remedy, including KIB's assessing Liquidated Damages or Compensatory Damages, is not an election of remedies but is cumulative with any other available remedies. b. KIB's additional remedies. In addition to exercising any remedy available under law or equity, upon occurrence of a Default, KIB in its sole discretion may exercise any or all of the following additional remedies: (1) Termination. Terminate this Contract or any portion of Performance Obligations under Section 15.01a; (2) Suspension. Suspend this Contract or any portion of Performance Obligations under by Section 15.01b; (3) Perform Contract Services. Perform Performance Obligations under Section 14.09; (4) Injunctive Relief / Damages. Seek to obtain injunctive relief and/or damages; (5) Damages. Assess Liquidated Damages, Compensatory Damages and any other damages under law, and; (6) Financial Assurances. Draw on the Letter of Credit, demand payment under the Guaranty or any Indemnity, or submit any claim under Insurance. c. Injunctive relief. Contractor acknowledges that KIB 's remedy of damages for Breach or Default may be inadequate for reasons including the following: (1) public health and safety. The urgency of timely, continuous and high - quality Contract Services, including Collection, transportation and/or transfer and Disposal of putrescible solid wastes that constitute a threat to public health; (2) procurement time and expense. The long time and significant investment of money and personnel (including KIB 's staff, elected officials and MB Counsel, as well as procurement counsel and consultants) required to do the following: (i) develop a scope of Contract Services and Performance Obligations acceptable to MB, (ii) draft this Contract and related procurement documents, (iii) solicit comments on this Contract and procurement documents from MB (and MB Counsel) and Persons interested in proposing to provide Contract Services, (iv) meet with those potential proposers to discuss their comments and answer their questions about this Contract and the procurement, (v) finalize this Contract and procurement documents, (vi) solicit proposals for Contract Services, (vii) review and evaluate those proposals and seek clarifications of those proposals, (viii) award this Contract under KIB's Applicable Law, (ix) finalize execution of this Contract, including reviewing, commenting on and approving (if required) Contractor Documentation, and, (x) conform KIB Code to the new automated Refuse Collection programs; and 37 COLLECTION SERVICES CONTRACT 1 Kodiak Island Borough, AK (3) reliance on Contractor. KIB's reliance on Contractor's meeting evaluative criteria on which award of this Contract was based, such as the following: (i) solid waste management experience, (ii) KIB references, (iii) qualifications of key personnel, (iv) environmental programs and proposed Unpermitted Waste Screening Protocol, (v) litigation history, (vi) Contractor's proposed transition, Customer education, diversion and other plans, (vii) acceptance of terms of this Contract, and (viii) Diversion record. (4) re- procurement time and expense. The length and significant investment of time and money described in item (2) to develop alternative MSW Management Services comparable to Contract Services for the price provided under this Contract, and to negotiate new agreements therefore. Consequently, KIB is entitled to all available equitable remedies, including injunctive relief. d. Contractor Payment Obligations. MB may collect Contractor Payment Obligations due and owing by Contractor to MB by any or all of the following means: (1) demanding payment from Contractor or Guarantor, (2) drawing on the Letter of Credit, (3) submitting claims as an additional insured under Insurance policies or under contractual liability provisions of Insurance policies, and (4) directing Contractor to offset Contractor Payment Obligation from Contractor Service Fees that Contractor received from Customers to remit them to MB. 14.05 Additional Compensatory Damages. Without limiting KIB's rights to seek Compensatory Damages under Section 14.01 or law, MB may seek the following compensatory damages: (1) Amounts equal to any Contractor Payment Obligations or other amounts that Contractor has previously paid to MB but are subsequently recovered from MB by a trustee in bankruptcy as preferential payments or otherwise; (2) If MB terminates this Contract for Default, MB's Reimbursement Costs to provide or re- procure MSW Management Services in lieu of Contract Services; and (3) If MB terminates this Contract for Default, MB'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 COLLECTION SERVICES CONTRACT 1 Kodiak Island Borough, AK 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. 14.06 Waivers. a. Waiver of Breach. No waiver of any Breach or Default constitutes a waiver of any other Breach or Default. Failure of KIB to enforce any provision of this Contract may not be construed as a waiver of KIB's enforcement rights. KIB's subsequent acceptance of any damages or other money paid by Contractor may not be deemed to be a waiver by KIB of any pre - existing or concurrent Breach or Default. b. Contractor Waiver of Certain Defenses. Contractor acknowledges that it is solely responsible for providing Contract Services and by this Contract irrevocably and unconditional waives defenses to the payment and performance of its obligations under this Contract based on failure of consideration; contract of adhesion; impossibility or impracticability of performance; commercial frustration of purpose; or the existence, non - existence, occurrence or non- occurrence of any foreseen or unforeseen fact, event or contingency that may be a basic assumption of Contractor with regard to any provision of this Contract; provided that Contractor does not by this Contract waive any defenses under this Contract of Uncontrollable Circumstances. 14.07 Jurisdiction; Venue, Costs. a. Jurisdiction. Parties will bring any lawsuit arising out of this Contract in State courts, which will have exclusive jurisdiction over those lawsuits. Each Party consents to jurisdiction over its person and over the subject matter of any litigation in those courts and to service of process issued by those courts to the Parties at their addresses for Notice. b. Venue. Venue is made in and will be performed in courts sitting in Anchorage, AK, to the extent permitted by Applicable Law. Parties further agree that the site of any other hearing or action, whether arbitration or non judicial, of whatever nature or kind regarding this Contract, will be conducted in Kodiak, AK. c. Costs. The non - prevailing Party in any dispute involving this Contract will pay the prevailing Party's Reimbursement Costs. 14.08 Enforcement Costs. Contractor will reimburse KIB promptly upon request for either or both of the following KIB's Reimbursement Costs: (1) investigating any alleged Breach, or (2) incurred by MB as a consequence of a Breach. 14.09 MB Right to Perform. a. Events. MB may perform, or providing for the performance of, any or all Performance Obligations (such as Collection or transportation and delivery of Refuse to KIB Landfill) upon 3 1 ) COLLECTION SERVICES CONTRACT I Kodiak Island Borough, AK the occurrence of either of the following events determined by KIB in its sole discretion: (1) Failure to Collect or Dispose for 48 hours. (i) Contractor, due to Uncontrollable Circumstances or for any reason whatsoever, fails, refuses or is unable to Collect any Solid Waste and transport it to MB Landfill (or other KIB- approved Facility) for a period of 48 hours after the Collection or acceptance was required under this Contract, and (ii) MB determines in its sole discretion that there is a danger to the public health, safety or welfare; or (2) Suspension or termination of Contract. MB suspends or terminates all or a portion of 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 of the following: (1) Resumption of Service. Contractor can demonstrate to KIB's satisfaction that Contractor is ready, willing and able to resume timely and full performance of all Performance Obligations, or (2) Alternative service arrangements. MB can make alternative arrangements for providing MSW Management Services, in its judgment comparable to Contract Services in scope and price, which may include contracting with another service provider. c. Notice. MB may give Contractor 24 hour oral notice that MB 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 MB must confirm that oral notice with a Notice (which is in writing). d. Service Assets. 4(1 (1) Possessory interest. MB may take possessory interest in any or all Contract Service Assets necessary or convenient in performing or providing for the performance of Performance Obligations relating to Collection, and Contractor will fully cooperate with MB to transfer possessory interest in those Contract Service Assets to MB. Customers' possession of Carts will be deemed possession by MB if necessary to exercise this right. MB may use those Contract Service Assets to provide all or a portion of those Contract Services. It will have absolute and exclusive control over those Contract Service Assets as though it was the absolute owner thereof and assume complete responsibility for use of those Contract Service Assets while those Contract Service Assets are in MB's possession. COLLECTION SERVICES CONTRACT I Kodiak Island Borough, AK (2) Maintenance. At KIB's request, Contractor will keep those Contract Service Assets in good repair and maintenance (including fully fueled and oiled,) or pay KIB's Direct Costs of repair and maintenance. Subject to repair and maintenance performed by Contractor, MB will do the following: (i) maintain those Contract Service Assets in the same condition as they were in when Contractor transferred their possession to MB; and (ii) return those Contract Service Assets to Contractor in the same condition as received, normal wear and tear excepted. (3) Insurance. Contractor will maintain in full force and effect all Insurance during KIB's use of Contract Service Assets. By granting MB the right to possession and use of Contract Service Assets, Contractor declares as follows: (i) MB or MB's personnel or designees using those Contract Service Assets are permitted users for purposes of liability Insurance, and (ii) use and possession of those Contract Service Assets is not intended to be and is not transfer of ownership for purposes of any liability Insurance. Contractor will execute whatever documentation its liability Insurers require to ensure that MB and its designees are protected and covered by liability Insurance, including requesting and executing endorsements to liability policies. MB may secure endorsements at its cost. MB may call and confer with Contractor's insurance agent, broker and underwriter to determine what, if any, documentation or actions are necessary to achieve protection satisfactory to MB. By executing this Contract, Contractor authorizes its insurance broker to cooperate with and respond to requests from MB. Contractor may not rescind this authorization without MB consent. 4. Contract Service Asset Documentation. Each Contract Service Asset Document must allow MB to assume Contractor's obligations and to continue use of those Contract Service Assets in performing MSW Management Services. e. Contractor's Personnel. MB may immediately engage any or all of Contractor's present or prior employees and Subcontractors to provide all or a portion of Contract Services relating to Collection (including drivers, route supervisors, management and office personnel who provide Customer service and billing). However MB is not obligated to hire Contractor's employees or Subcontractors and may use municipal employees or other Persons to provide all or a portion of Contract Services relating to Collection. Promptly upon receiving notice under Subsection c, Contractor will make available its employees or Subcontractors to MB. f. Records. At MB request, Contractor will immediately provide MB or its designees with immediate access to Contractor Office at any time MB is exercising its rights under this Section and possession of any or all Records, including those related to routing and Customers' frequency and level of Contract Service (such as Customer Service Subscription data). 41 COLLECTION SERVICES CONTRACT 1 Kodiak Island Borough, AK g. Contractor Payment or MB Reimbursement. (1) Uncontrollable Circumstances. In the following events: (i) items (1) and (2) in Subsection a are due to Uncontrollable Circumstances, and (ii) Contractor is not being paid (or if Contractor bills in advance, has not been paid) through billing and collecting Customer charges, then the KIB will pay Contractor each of the following costs: (iii) rental fees for use and possession of those Contract Service Assets equal to their fair market value as determined by an independent appraiser selected by the Parties in the same manner as the Independent Expert in Section 12.03a; (iv) Contractor's Direct Costs of providing Vehicles with fuels, oil and other maintenance under Subsection d(2); (v) Contractor's Direct Cost of making personnel available to KIB under Subsection e. (2) Other than Uncontrollable Circumstances. If the events enumerated in paragraphs numbered (1) and (2) in Subsection a are not due to Uncontrollable Circumstances, then KIB is not obligated to pay the compensation enumerated in preceding Subsection g(1) and Contractor will pay KIB's Reimbursement Costs of performing Performance Obligations within 10 days of its submitting an invoice for that compensation. If Contractor does not timely pay that invoice, KIB may draw upon any or all Performance Assurances. h. Stipulations. Contractor stipulates that KIB's exercise of rights under this Section does not do any of the following: (1) create any liability on its part to Contractor, (2) constitute a taking of private property for which it must compensate Contractor, or (3) exempt Contractor from any Indemnities, which Parties acknowledge are intended to extend to circumstances arising under this Section. However, Contractor is not required to indemnify KIB against claims and damages arising from the negligence of KIB's officers and employees (other than employees of Contractor at the time they commenced performing Contract Services), contractors and agents driving Collection Vehicles. ARTICLE 15: SUSPENSION OR TERMINATION. 15.01 MB Right to Suspend or Terminate. a. Termination Events. KIB may, in its sole discretion, terminate this Contract in whole or in part, in the following Termination Events: (1) Default. The occurrence of a Default; (2) Uncontrollable Circumstances. The occurrence and continuance of an Uncontrollable Circumstance under Section 14.03c; (3) Non - severable Provisions. Any Contract Provision defined in Section 20.05 is ruled unconstitutional, illegal, invalid, non - binding or unenforceable by any court of competent jurisdiction and KIB determines not to sever it but to terminate this Contract; 42 COLLECTION SERVICES CONTRACT I Kodiak Island Borough, AK (4) Assignment of Guaranty Without Consent. The Guarantor transfers the Guaranty without consent required by the Guaranty, and on or before 15 days after the transfer, the Guarantor does not provide MB with a substitute Guarantor or alternative financial credit support satisfactory to MB. b. Suspension Events. Upon the occurrence of any Termination Event, MB may 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 MB that Contractor can once again fully perform Contract Services. If Contractor so demonstrates to satisfaction of MB in its sole discretion, MB's right to suspend or terminate this Contract will cease and Contractor may resume providing Contract Services. If Contractor does not so demonstrate, MB may terminate this Contract and exercise its additional rights and remedies. c. Notice. MB will give Contractor a Notice of termination or following times: (1) (2) (3) suspension effective at the immediately or upon other period stated by MB with respect to the following Defaults described in Section 14.02: (i) Insurance (Failure to Provide Performance Assurances), and (ii) insolvency, bankruptcy, liquidation, to the extent permitted by Applicable Law (Insolvency, Bankruptcy, Liquidation), or upon Contractor's receipt of Notice with respect to any other Default, unless MB specifies an alternative date in the Notice; a date MB specifies in the Notice. d. Suspension, Termination of a Portion of Performance Obligations: Reduction in Fee. If KIB suspends a portion of this Contract or terminates some but not all 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. For example, if KIB suspends Performance Obligations with respect to Collection of Bulky Items upon the occurrence of a Termination Event, Contractor would be obligated to fully perform its other obligations under this Contract (such as Collection of Refuse). 15.02 Criminal Activity a. Notice. Contractor will immediately give Notice to MB of either of the following with respect to Contractor or any Contract Manager (except for the Contract Manager in a Position of Influence): (1) conviction of a Criminal Activity ( "conviction ") or (2) plea of "guilty", nolo contendere" or "no contest" to a Criminal Activity ( "plea ") Contractor will promptly give Notice to MB of any of those convictions or pleas with respect to the Contractor Manager in a Position of Influence. COLLECTION SERVICES CONTRACT 1 Kodiak Island Borough, AK 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. MB remedies. Upon the occurrence of either of the following events: (1) Contractor or any Affiliate fails to effectuate the cure described in Subsection b, or (2) the Criminal Activity is related to this Contract or occurs within the boundaries of MB (incorporated or unincorporated), KIB may take any or all of the following actions: (3) suspend or terminate this Contract, or (4) impose other sanctions (which may include financial sanctions and any other condition MB deems appropriate, short of suspension or termination) as it deems proper. d. Limitations on Contractor Manager. No Contractor Manager may have previously (1) been convicted of a Criminal Activity, or (2) plead "guilty", nolo contendere" or "no contest" to a Criminal Activity. ARTICLE 16: TRANSFER OF CONTRACT. 16.01 Contractor Transfer. a. Acknowledgment. Contractor acknowledges that Contractor submitted evidence to MB 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 MB in entering into this Contract with Contractor. b. MB consent. Without MB consent, given in MB's sole discretion, Contractor will not Transfer in whole or in part, voluntarily or involuntarily any of the following: (1) this Contract, (2) the Guaranty, or (3) any rights or duties in this Contract or under the Guaranty, Contractor may not circumvent MB's consent rights by securing Goods or Services from a Subcontractor. 44 COLLECTION SERVICES CONTRACT I Kodiak Island Borough, AK Contractor acknowledges that in its submitted proposal to provide Contract Services and enter into this Agreement it described the experience, qualifications and operations not only of Contractor itself, but of the following companies that are wholly owned by Contractor as of the Contract Commencement Date: Alaska Waste Transfer, Alaska Waste, Alaska Waste Interior, LLC, and Alaska Waste Kenai Peninsula, LLC (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 MB consent, given in KIB's sole discretion. For purposes of this Performance Obligation and MB right, the definition of "Transfer ", the "Contractor" is deemed to include "Contractor's Operations. c. Contractor request. Without obligating MB to give consent, Contactor will demonstrate to MB'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 MB's consideration. d. Payment of KIB's Transfer Costs. (1) Transfer Deposit. Contractor must make any request for MB's consent to a Transfer in the manner prescribed by MB. Contractor must pay MB the Transfer Deposit before MB will consider Contractor's request. "Transfer Deposit" means lesser of the following refundable amounts: (i) $1,500 (ii) KIB's anticipated Transfer Costs. (2) Additional Transfer Costs. Within 30 days of MB's request, Contractor will further pay MB's additional Transfer Costs in excess of the Transfer Deposit, whether or not that MB approves the Transfer. "Transfer Costs" means the following MB's Reimbursement Costs: (i) considering and reviewing Contractor's request for Transfer, (ii) investigating the suitability of the transferee, and (iii) determining whether or not to give its consent, (iv) preparing documents to effectuate the Transfer. (3) KIB's Reimbursement Costs of enforcement. Within 30 days of MB's request, Contractor will pay MB's Reimbursement Costs for fees and investigation costs as MB deems necessary to enjoin the Transfer or to otherwise enforce this Section e. Novation. If MB consents to Transfer of this Contract, upon request of the transferee, MB will execute a novation under which the Person which is the transferee Contractor assumes all of the rights and Performance Obligations of the transferor Contractor. COLLECTION SERVICES CONTRACT 1 Kodiak Island Borough, AK ARTICLE 17: THE PARTIES. 17.01 Contractor Is Independent Contractor. The Parties agree and the Contractor acknowledges as follows: (1) Contractor is an independent entity and contractor engaged by MB and not KIB's Related Party or a joint venturer with MB. (2) No employee or agent of Contractor is deemed to be MB's Related Party. (3) Contractor will have the exclusive control over the manner and means of performing Contract Services and over all Persons performing Contract Services. (4) 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. (5) Nothing in this Contract may be construed as creating an arrangement for handling Unpermitted Waste. (6) 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 MB employees and Contractor expressly waives any claim it may have or acquire to those benefits. (7) 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. 17.02 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. 17.03 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. 17.04 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 MB by the Contract Commencement Date. 17.05 Actions of MB in Its Governmental Capacity. Nothing in this Contract may be interpreted as limiting the rights and obligations of MB in its governmental or regulatory capacity. 17.06 Contractor's Obligations Performed at Its Sole Expense. Contractor will perform Contract Services solely for the compensation expressly provided for in this Contract. 46 COLLECTION SERVICES CONTRACT Kodiak Island Borough, AK 17.07 Parties Representatives. a. MB (1) Identification. 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, MB delegates to MB 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 MB 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 the Contractor Service Fee due to changes in operations under Section 13.03a2, but not annual adjustments under 13.03a1, (v) Indemnities, and (vi) exercising any delegation of authority contrary to Applicable Law. b. Contractor Representative. Contractor Representative is named in Contractor Documentation. Contractor Representative must have at least 5 years experience in Solid Waste collection services before being named Contractor Representative. 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. 17.08 Due Diligence. Contractor acknowledges each of the following: (1) MSW Management Services, including Contract Services, are highly regulated under Applicable Law, (2) waste management is a public health and safety concern. Contractor agrees that it will exercise due diligence in performing Contract Services. 17.09 No Use of MB Name. Contractor will not do business as or use a corporate, partnership, venture or other formal name, containing the name of any MB or implying government ownership. 17.10 Subcontractors. a. Subcontracts exceeding $50,000. Contractor will not engage any Subcontractor in an amount exceeding $50,000 for any individual Subcontractor without MB's prior approval of the Subcontract and Subcontractor. Any Subcontract entered into without MB'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. 4 7 COLLECTION SERVICES CONTRACT I Kodiak Island Borough, AK c. Removal. MB may require Contractor to remove any approved Subcontractor for any of the following reasons: (1) failure to provide Contract Services, (2) non - compliance with Applicable Law, or (3) in KIB's judgment, conduct that 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. ARTICLE 18 : AMENDMENTS. 18.01 Amendments. a. MB Governing Body authorization and direction / Contractor consent. Amendments to Contract rights, remedies and options that are not delegated to the MB Representative under subsection b will be effective upon completion of the following actions: (1) authorization and direction of MB Governing Body, (2) consent of the Contractor, and (3) due execution by the Parties of an amendment reflecting those changes. b. MB Representative Consent / Contractor Representative Consent. All other Amendments to this Contract will be effective upon completion of the following: (1) consent of MB Representative (except for Contractor's amendments to Contractor Documentation that do not require MB consent), (2) consent of Contractor Representative (except for amendments to Attachments to this Contract that do not require Contractor consent, such as changing Contractor's address for Notices), and (3) due execution by the Parties of text reflecting those changes. Examples of those amendments include the following: (4) amendments not listed in Subsection a, (5) Contractor Documentation, and (6) 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 the Parties': (1) witness and signing written amendment in the form provided on the signature page of this Contract; and (2) warranties as to their due authorization and execution of the amendment. "Due execution" of amendments to Contractor Documentation, Attachments and Exhibits means KIB and Contractor Representative signing and dating the amendments. COLLECTION SERVICES CONTRACT I Kodiak Island Borough, AK ARTICLE 19 : NOTICES, CONSENTS, APPROVALS, ETC. 19.01 Notices, etc. Notices must be given at the addresses provided in Contractor Documentation attached to this Contract, as follows: (1) by Email or facsimile promptly followed by personal or mailed delivery, or (2) by personal delivery to the Contractor Representative or KIB Representative, as the case may be, or (3) by deposit in the United States mail first class postage prepaid (certified mail, return receipt requested), or (4) by commercial delivery service providing delivery verification. Notice by MB 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 MB or the public. Parties may change their address upon Notice to the other Party. 19.02 Writing Requirements. All Notices, reports, demands, requests, directions, selections, option exercises, orders, proposals, reviews, comments, acknowledgments, approvals, agreements, consents, waivers, certifications and other communications made under this Contract must be in writing, except the following: (1) oral communication is explicitly authorized, and (2) communication with respect to routine Contract administration, such as submitting Records or Reports, correcting Reports or, discussing Customer complaints. 19.03 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 ") reasonably. 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. 4) COLLECTION SERVICES CONTRACT 1 Kodiak Island Borough, AK ARTICLE 20: DEFINITIONS AND INTERPRETATION OF CONTRACT. 20.01 Definitions. In this Contract words have the meanings defined in Attachment 20.01, which control in the event of any conflict with the definitions used in the recitals above. 20.02 Interpretation of Contract. a. Plurality. Terms that are defined in the singular and plural in Article 20, include both singular and plural throughout the Contract, unless the context demands otherwise. b. Headings, Font. Any caption or heading after the ATTACHMENT, EXHIBIT, ARTICLE, Section, lettered subsection, Arabic - numbered subsection or Roman - numbered subsection and numbered lists preceding the operative text of this Contract is for convenience of reference only and does not in any way control or affect the scope, intent, meaning, construction, interpretation or effect of this Contract. Any underlined, italicized, bold- faced, UPPER -CASED or other font style is for ease of reading and contract administration, and it does not in any way imply relative importance or unimportance of any provision of this Contract. c. References to Parts. References to Sections and Articles refer to Sections and Articles of this Contract, unless specified otherwise. References to Attachments and Exhibits refer to Attachments and Exhibits appended to this Contract. References to subsections are to the Section in which that subsection occurs, unless otherwise provided. d. Examples. Examples are for purpose of illustration only. If any example is ambiguous or conflicts with the text that it illustrates, the text governs. e. Specifics no limitation on generalities. The mention of any specific duty or liability imposed upon Contractor may not be construed as a limitation or restriction of any general liability or duty imposed upon Contractor by this Contract or Applicable Law. f. Ambiguities, Inconsistencies and Conflicts. If any provision contained in the body of this Contract is ambiguous, inconsistent with or conflicts with any Attachments or Exhibits to this Contract, the provisions of the body of this Contract will govern. g. Time for performance. Any reference to the number of days (or other period of time) in which any action must be taken means consecutive calendar days, without regard to intervening Holidays or Sundays. However, if any Performance Obligation (other than emergency services described in Section 9.07) must be performed on a Holiday or Sunday, the time for performance is extended until next Service Day. 20.03 Integration. 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 COLLECTION SERVICES CONTRACT 1 Kodiak Island Borough, AK respective rights and obligations, including those contained in each of the following: (1) requests for proposals, (2) proposals, (3) memorandums, (4) correspondence, (5) telephone calls, (6) field trips, (7) interviews, (8) negotiations, and (9) KIB Governing Body sessions. 20.04 Governing Law. This Contract is governed by, and construed and enforced as required by, the Applicable Law of the State, without giving effect to the State's principles of conflicts of laws. 20.05 Severability. If any clause, sentence, provision, subsection, Section or Article of this Contract or Exhibit or Attachment to this Contract (a "Contract Provision ") is ruled unconstitutional, illegal, invalid, non - binding or unenforceable by any court of competent jurisdiction, then the Parties will take the following actions: (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. The unconstitutionality, illegality, invalidity, non - binding nature or unenforceability of any Contract Provision will 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. However, if any Contract Provision with respect to MB direction to a Solid Waste Management Facility is ruled unconstitutional, illegal, invalid, non - binding or unenforceable by any court of competent jurisdiction, then MB in its sole discretion may take either of the following actions: (3) sever that Contract Provision and construe and enforce this Contract under this Section, or (4) terminate this Contract. Contractor agrees not to challenge the constitutionality, legality, validity, enforceability or binding nature of either of the following provisions of this Contract: (5) Contractor obligation to deliver Refuse to MB Landfill, (6) Contractor obligation to any other type of Solid Waste (such as recyclables) to any other Solid Waste Management facility as directed by MB. 5I COLLECTION SERVICES CONTRACT I Kodiak Island Borough, AK 20.06 Interpretation. This Contract must be interpreted and construed reasonably and neither for nor against either Party, regardless of the degree to which either Party participated in its drafting. Contractor acknowledges that it determined to provide Contract Services in KIB and execute this Contract upon its own choice and initiative and that it had the opportunity to submit comments, recommend changes and take exception to the proposed provisions of this Contract during the procurement process. Each Party represents and warrants that it has reviewed this Contract and has either commented upon this Contract or had the opportunity to do so, with advice of its attorneys. No provision in this Contract may be construed against MB solely because MB prepared this Contract in its signed form. 20.07 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. ARTICLE 21: EXECUTION OF CONTRACT. 21.01 Execution in Counterparts. This Contract may be signed in any number of original counterparts. All counterparts will constitute but one and the same Contract. 21.02 Authority to Execute. a. MB. MB 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 PACIFIC ENVIRONMENTAL Alaska, a political subdivision SERVICE, LLC By: By: Name: Rick L. Gifford Name: Jeff Riley Title: Manager Title: Chief Operations Officer Dated: Dated: ATTEST: ATTEST: By: MB CLERK Name: Name: Nova M. Javier, CMC Dated: Dated: APPROVED AS TO FORM: MB COUNSEL Name: Dated: COLLECTION SERVICES CONTRACT 1 Kodiak Island Borough, AK ATTACHMENT 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 and is qualified to do business in 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 a breach of any Applicable Law; (2) conflicts with, violates or results in a breach of any term or condition 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 there under; 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 or consent of, or 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. There is no action, suit, proceeding or investigation, at law or in equity, before or by any court or governmental authority, commission, Governing Body, agency or instrumentality pending or, to the best of Contractor's knowledge, threatened, by or against Contractor wherein an unfavorable decision, ruling or finding, in any single case or in the aggregate, would adversely affect the performance by Contractor of its obligations under this Contract or in connection with the transactions contemplated by this Contract, or which, in any way, would adversely affect the validity or enforceability of this Contract or any other agreement or instrument entered into by Contractor in connection with the transactions contemplated by this Contract. There is no action, suit, proceeding or investigation, at law or in equity, before or by any court or governmental authority, commission, board, agency or instrumentality pending or threatened, by or against MB by Contractor. f. Due Diligence. Contractor has made an independent investigation, examination and research satisfactory to it of the conditions and circumstances surrounding this Contract and best COLLECTION SERVICES CONTRACT 1 Kodiak Island Borough, AK and proper method of providing Contract Services (including the types of Contract Services) and labor, equipment and materials for the volume of Contract Services to be provided. 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 MB that proves to be in any respect erroneous. g. Compliance with Applicable Law. Contractor further represents and warrants that it has fully complied with all Applicable Law, including without limitation law relating to conflicts of interest, in the course of procuring this Contract. h. Truth and Accuracy of Application etc. Information in the following documentation provided by Contractor is true, accurate and complete: (1) Contractor Documentation, and (2) Contractor's proposal submitted in response to KIB's Request for Proposals for this Contract (together with any addendum thereto), including all clarifications to that proposal. Contractor will promptly amend Contractor Documentation to reflect any changes in Contractor Documentation and submit it to MB. ATTACHMENT 2.02: MB'S REPRESENTATIONS AND WARRANTIES. a. Status. MB is a political subdivision of the State, duly organized and valid existing under the Constitution and laws of the State. b. Authority and Authorization. MB has full legal right, power and authority to execute, deliver, and perform its obligations under this Contract. This Contract has been duly signed and delivered by MB and constitutes a legal, valid and binding obligation of MB enforceable against MB in accordance with its terms. c. No Warranty Regarding Waste Characterization or Volume. MB makes no warranties with respect to the Solid Waste characterization or volume. MB disclaims any warranties, either express or implied, as to the merchantability or fitness for any particular purpose of materials that Contactor handles under this Contract. COLLECTION SERVICES CONTRACT 1 Kodiak Island Borough, AK ATTACHMENT 4: REFUSE COLLECTION AND TRANSPORTATION TO MB LANDFILL. 4 -3.03 Obligations Upon Termination or Expiration. a. Contractor Removal of Refuse Containers. If KIB does not exercise its option under Subsection b to acquire any or all Refuse Containers, then upon expiration or termination of this Contract, Contractor will remove Refuse Containers at the following times: (1) after replacement Carts are provided to the Customer's Premises, or (2) at the time directed by KIB. Contractor will use Reasonable Business Efforts to reuse or recycle all removed Refuse Containers. For example, Contractor might ship Carts to the Cart manufacturer of Carts for recycling, or deliver dumpsters for metal salvage.. b. Contractor Transfer of Container Ownership to MB. In consideration of the privileges granted under this Contract and for Contractor Service Fees previously received during the Term, within 5 MB Business Days of MB direction, Contractor will transfer to MB ownership of any or all Refuse Carts and any or all Refuse Dumpsters in the following events: (1) the effectiveness of any Notice of termination by MB under this Contract, or (2) the expiration of this Contract. Upon MB request, Contractor will promptly provide MB with the following documentation: (3) any or all Contract Service Asset Documents, such as manufacturers warranties, maintenance agreements, financing documents and recorded financing statements, and (4) any other documentation evidencing transfer of ownership of any or all Refuse Containers to MB. c. Survival. CONTRACTOR'S OBLIGATIONS IN THIS SECTION SURVIVE TERMINATION OR EXPIRATION OF THIS CONTRACT. 4 -4.01 Automated Refuse Collection in Carts. a. Automated or Semi - automated Cart Collection. Contractor will Collect all Carts by automated or semi - automated manner. "Automated" means that Carts are lifted from their Set - out Site, emptied and set back down at their Set -out Site by mechanical means. "Semi - automated" means that Carts are rolled by individuals from the Carts' Set -out Sites into position near the Collection Vehicle; lifted, emptied and set back down by mechanical means; and rolled back by individuals to their Set -out Sites. b. Default Residential / Optional Commercial or Multifamily (1) Residential. Be inning on the Collection Commencement Date, Contractor will Collect all Refuse COLLECTION SERVICES CONTRACT I Kodiak Island Borough, AK (2) Commercial or Multifamily Collection. Beginning on the Collection Commencement Date, at the request of the owner or occu ant of a Commercial or Multi- family Premise, Contractor will Collect all Commercial 1 Multifamily _ _ weekly, on the Regularly same Scheduled Collection Day. c. Cart options. (1) Default Residential Service: 64 gallon Refuse Carts. Unless Contractor must provide Roll -Off Containers under Section 6 -6.02, Contractor will provide each Residential Premise with one 64- gallon capacity Refuse Cart for the charge listed on the Service Fee Schedule, except if the owner or occupant of that Residential Premise directs Contractor to provide a different number or capacity of Carts under following Subsection c(2). (2) Larger / smaller, more / fewer Refuse Carts. At any Cart Customer's request, Contractor will provide that Customer's Premise with Refuse Carts in alternative number and capacity options offered on the Service Fee Schedule (such as 32 or 96- gallon capacity Cart) for the corresponding additional (or lesser) charges listed on the Service Fee Schedule. d. Cart Roll -out Service. a . 56 weekly, on the same Regularly Scheduled Collection Day. (1) Scope of Service. At Customer request, Contractor will provide Roll -out Service for Refuse Carts. (2) Without charge / with surcharge. (i) Without charge. Contractor will provide Roll -out Service to the Elderly or Handicapped individual, if Customer certifies that no able- bodied person resides at the Customer's premise, which certification Contractor may confirm; (ii) With surcharge. Contractor will provide Roll -out Service to any Customer who does not meet the preceding listed criteria for the surcharge listed on the Contractor Service Fee Schedule. 4 -4.02 Collection in Dumpsters or Compactors. Commercial or Multifamily Collection. Beginning on the Collection Commencement Date, Contractor COLLECTION SERVICES CONTRACT 1 Kodiak Island Borough, AK or whom Conttr pro O s or Dumpsters. Contractor wi Collect Offs or Dumpsters under 6 -6.02) eh lential Roll fuse discarded in those Residential Roll weekly, on the same Re larl Scheduled Collection D days t between Regi g `Collection Comment Contractor will provide all Customers having Commercial or Multifamily Premises with Dumpsters. Contractor will Collect all Refuse discarded in those Dumpsters at least weekly, or on additional days determined by Contractor in its sole discretion, on the same Regularly Scheduled kollpn Day(s). b. Dumpster Options (1) Default Service : 2.0 Cubic Yard capacity Dumpster. 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, except in the following circumstances: (i) the owner or occupant of that Premise directs Contractor to provide the following altemative Containers: A. a different ca aci of Dumpster or frequency of Collection or B. one or more Carts (ii) the Contractor determines in its sole discretion, that there is insufficient room at a Commercial Set -out Site to place or safely Collect one or more Dumpsters for each Customer using that Commercial Set -out Site, in which circumstance the Contractor will take the following actions, in its sole discretion: A. provide one or more Carts in the capacity and number that each Customer needs to store its discarded Refuse pending Collection, or B. allow one or more Customers to share a Dumpster. Contractor will provide locks for any Dumpster promptly upon Customer request. c. Larger / smaller Dumpsters, more / less fre uent Collection. At MEM request, Contractor will provide Dumpsters in ;7 1 ) " Nice sidential raises ou Wde the C tractor' provide dential Customers who receive Collection Service in Dumpsters with Dumpsters having capacity determined by Contractor in its sole discretion, sufficient to contain Refuse discarded by Resantiial Customers whose Residential Premises are outside the City of Kodiak, + listed on tlervice Fee likedule (Rial Roper). COLLECTION SERVICES CONTRACT 1 Kodiak Island Borough, AK alternative number and Collection fre•uenc o.tions offered on the Service Fee Schedule d. 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. 4 -4.03 On -call, Monthly Bulky Items Collection. a. Driver report / MB request. When Collecting any Refuse, Contractor's drivers must immediately report to Contractor any Bulky Item he or she observes Discarded at a Dumpster Set -out Site. b. On -call Collection Service and Charges. Within 3 days of Customer or KIB request, Contractor will Collect up to 4 X 5 X 6 cubic feet of Bulky Items that are Discarded at a Residential Set -out Site for the surcharge listed on the Contractor Service Fee Schedule. c. Diversion Program. Contractor will use Reasonable Business Efforts to Divert all Bulky Items that it Collects. For example, Contractor might cooperate with a thrift store to pick up or accept Contractor's delivery of furniture, or deliver appliances for metal recovery. Contactor will transport and deliver Bulky Items it does not divert to a facility approved by KIB. 4 -4.04 Emergency Services. a. Nature of emergency services. Within 24 hours of oral notice by KIB, followed as soon as practicable by written notice, Contractor will provide emergency services beyond the scope of Contract Services at the times and to the extent directed by KIB, including providing vehicles, drivers and other equipment and personnel to cleanup Solid Waste and other debris consequent upon natural disasters such as earthquakes, storms, floods, riots and civil disturbances, for which Contractor will be compensated Contractor's Reimbursement Costs. b. Reporting. Contractor will cooperate with MB, 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 Section. c. Emergency Backup Service Plan Contractor will develop an emergency backup service plan in form satisfactory to KIB and 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 to transport Solid Waste or any portion thereof to the applicable Solid Waste Management Facility and MB Manager determines there is danger to the public health, safety, or welfare. 4 -4.09 Mandatory Service Notice. Within 7 Service Days after receiving notice (based on Contractor's drivers' observations, information and belief or otherwise) that a formerly COLLECTION SERVICES CONTRACT 1 Kodiak Island Borough, AK unoccupied Premise becomes occupied or the Customer 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 provisions of the KIB Code requiring mandatory Service. 4 -14.01 Compensatory damages. Contractor will pay KIB the following Reimbursement Costs: (1) for enforcing any Performance Obligation to deliver Refuse to KIB Landfill or Solid Waste to any other approved Solid Waste Management Facility, and (2) following a breach of that Performance Obligation, to monitor Contractor's Vehicles routes. ATTACHMENT 5: FUTURE PROGRAM CONSIDERATION: RECYCLABLES COLLECTION AND PROCESSING . 5 -5.01 MB Recyclables Program Specifications. In addition to any other changes in Performance Obligations implemented under and subject to the protocol in Article 12, KIB may direct Contractor to implement a recycling program. MB may prescribe the scope of recycling services, performance specifications and performance standards. KIB will request Contractor to submit a proposal to implement MB's recycling program under Article 12 before requesting any other Person to submit a proposal or negotiating with any other Person. However, if MB and Contractor do not reach agreement by the end of the period specified in Article 12, MB may take either of the actions permitted under 12.02. ATTACHMENT 6: DROP BOX COLLECTION AND TRANSPORTATION. 6 -6.01 On -call Temporary Dumpster and Roll -off Service. a. Container delivery. Upon a Customer request, Contractor will deliver a 4 -Cubic Yard Dumpster or Roll -Off Container in any capacity provided on the Service Fee Schedule at the following times: (1) on the same Service Day if a Customer requests Service before 10 a.m. on that Service Day; (2) on the next Service Day if the Customer requests Service after 10 a.m. but before 4:00 p.m. on a Service Day, and (3) within two Service Days, if the Customer requests Service after 4:00 p.m. on a Service Day. b. Collection. Beginning on the Collection Commencement Date, Contractor will Collect all Refuse and C &D Debris in a 4 -yard Dumpster or Roll -off Container at the frequency requested by the Customer for the corresponding charges listed on the Service Fee Schedule. c. Container pick up. Contractor will pick up that 4 -Cubic Yard Dumpster or Roll -off Container within 2 Service Days of a Customer's request or other time agreed to between Contractor and Customer. COLLECTION SERVICES CONTRACT 1 Kodiak Island Borough, AK d. Delivery to MB Landfill. If Contractor cannot divert C &D Debris from disposal using Reasonable Business Efforts (for example, recovering metal for reuse), it will deliver it to KIB Landfill, subject to the same obligations that Contractor has with respect to Refuse under Attachment 8. (For example, as of the Contract Commencement Date, Contractor cannot deliver C &D Debris to KIB Landfill on windy days when directed by KIB) 6 -6.02 Weekly Residential Roll -off Service. Be innin on the Collection Commencement Date, Contractor will Pinde Customers vdreis co is Flats, Chiniak and Pasagshak (and other areas as identified by the KI Representative from time to time in Notice to Contractor), with Roll -offs or Dumpsters. Collee Contractor will Collect Refuse discarded in those Roll Offs weekly, o the same Regularly Scheduled Collection Date. Solid Waste in Roll off Containers o Illiftiok-and-PaRags4+ak. 6 -6.03 Roll -Off Container at MB Landfill. a. Container delivery and replacement. Beginning on the Commencement Date, Contractor will deliver a 4 -Cubic Yard Dumpster or Roll -Off Container in any capacity provided on the Service Fee Schedule, as requested by KIB, to the location specified by KIB at the MB 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 Service Days of KIB request. Contractor will provide KIB with the Service prescribed in Section 7 -7.08 Containers (including repair and maintenance), as if MB were a Customer. b. Collection. Beginning on the Collection Commencement Date, Contractor will Collect all Solid Waste in the Roll -off or Dumpster at the KIB Landfill at the frequency agreed to by KIB and the Contractor, without charge to MB, and dispose of it at the MB Landfill land pay c. Payment by Customers. (1) Mandatory Service charges. 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 MB Landfill, as estimated by a MB employee. 6U (2) Contractor acknowledges that Contractor is authorized under this Agreement to charge the owner or occupant of a Premises a Service Fee, regardless of whether or COLLECTION SERVICES CONTRACT 1 Kodiak Island Borough, AK not 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. Therefore Contractor acknowledges that it is compensated for providing Service under this Section even though it does not charge MB. ATTACHMENT 7: GENERAL COLLECTION PERFORMANCE OBLIGATIONS AND STANDARDS. 7 -7.01 Missed Pickups and Other Complaints. a. Corrective action. 61 (1) (3) Missed Pickups etc. 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 Collect, deliver, exchange or repair. If Contractor does not timely provide the Contract Service, MB may provide the Contract Service itself or through a third party and Contractor will reimburse KIB's Reimbursement Costs thereof. (2) Other Complaints. Contractor will respond to all Customer inquiries and complaints (including any inquiry or complaint left with the telephone answering service) within 24 hours following notice to Contractor and handle complaints substantially as required by the Customer Complaint Protocol. No referral to MB. Contractor will not refer or forward any Customer to MB for resolution of complaints or answers to inquiries unless the Customer insists, in which event Contractor will refer the Customer to the MB Representative. (4) Employee Training. Contractor will train each of its Customer service employees to follow the Customer Complaint Protocol upon starting employment and periodically thereafter. b. Customer Complaint Protocol. Contractor will provide KIB with a copy of the Customer Complaint Protocol in form satisfactory to MB. c. Records. Contractor will maintain a daily written record of every inquiry and complaint received by Contractor, including information required by MB, and provide MB with a copy of those inquiries and complaints by the 15 day of each month. d. MB access to records. Contractor will allow MB access to complaint records at Contractor Office during Contractor Office Hours. Contractor will provide copies of any Customer complaints and the resolution of those complaints to MB within two hours of MB request, and other Records, promptly. COLLECTION SERVICES CONTRACT 1 Kodiak Island Borough, AK e. Reimbursement of MB Cost. Contractor will reimburse KIB 's Reimbursement Costs incurred by a KIB Related Party or Parties for the following: (1) more than 2 hours in the aggregate resolving any one Customer's complaint or answering that one Customer's question, or (2) more than 1 hour in any work week (MB Business Days generally Monday through Friday) resolving all Customers' complaints or answering all Customer's questions. MB's invoice for MB's Reimbursement Costs must indicate the following: (i) the name and address of the Customer, (ii) nature of complaint or inquiry, (iii) amount of time spent by MB employee or other Person, (iv) hourly fees for MB employees or fees of other Person, and (v) cost of materials or other disbursements, including phone and postage costs, required to resolve the complaint or answer the question. 7 -7.02 Unpermitted Waste Screening. a. Unpermitted Waste Screening Protocol. Contractor will implement the Unpermitted Waste Screening Protocol in compliance with Applicable Law and in a manner satisfactory to MB. b. Inadvertent Delivery of Unpermitted Waste. If Contractor inadvertently delivers Unpermitted Waste to a Solid Waste Management Facility, Contractor will use its best efforts to identify the Customer that discarded the Unpermitted Waste and cooperate with the Solid Waste Management Facility in investigations. Contractor will contact any identified Customer and provide that Customer with information on safe disposal of Unpermitted Waste. 7 -7.03 Contract Service Exceptions. a. Collection Exception. Contractor is not obligated to Collect any Solid Waste in event of any Contract Service Exception. b. Non - Collection Notice. If Contractor does not Collect any Solid Waste in event of 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 (except in the event of unsafe conditions, when Contractor will 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) or telephoning Customer.) (1) A Non - Collection Notice with respect to Solid Waste that is not properly placed inside Containers, must contain the following information: (i) reminder that the Customer must place Solid Waste (except Bulky Items) in a closed Container; 62 COLLECTION SERVICES CONTRACT I Kodiak Island Borough, AK (ii) 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 that is filled above the Container rim and will not fully close; (iii) instructions on how the Customer can subscribe to additional Refuse Containers (including any additional surcharges), or request on -call Collection of Bulky Items. (2) A Non - Collection Notice with respect to Unpermitted Waste (such as hazardous waste) or unsafe materials must describe where Customer can dispose of the Unpermitted Waste or those materials, such as at MB Landfill or other location designated by KIB. Promptly upon KIB request, Contractor will inform MB of each Customer to which Contractor gave a Non - Collection Notice. 7 -7.04 Transition and Customer Education. a. Contractor Transition. (1) Necessity for Smooth Transition. Contractor acknowledges that it is of the utmost importance to KIB that the transition from solid waste services provided before the Contract Commencement Date to Contract Services will proceed smoothly to the satisfaction of Customers, including the following: (i) timely Collection at each Customer's Premise, (ii) accurate billing of Customers for Customer Special Service Surcharges, (iii) distributing Refuse Carts or other Carts, as applicable, (iv) changing pickup days or times, (v) changing the scope of services or program specifications, and (vi) responding to Customer complaints and inquires. (2) Transition Plan contents. Contractor will implement the Transition Plan in a manner satisfactory to MB. b. Compliance with Transition Plan. Contractor will timely and fully implement its Transition Plan. Contractor will direct employees to work overtime and/or add extra shifts, as necessary, without Contractor Service Fee increase, to assure compliance with the Plan. Contractor will submit to MB written status reports in form and content satisfactory to MB on a weekly basis, commencing no later than the Friday of the week following the Contract Commencement Date. On the first MB Business Day each week and promptly upon MB request, Contractor will meet with MB to review status of Plan implementation. 7 -7.05 Other Special Customer Services. Upon Customer request, Contractor may provide special services in addition to prescribed Contract Services following approval by MB based on the following information: (1) scope of services, and (2) any surcharge. COLLECTION SERVICES CONTRACT 1 Kodiak Island Borough, AK 7 -7.06 Contract Service Assets. a. Operation and maintenance yard; Contractor Office. (1) Operation and maintenance yard; Contractor Office. Contractor will secure possession and use of operation and maintenance yard and Contractor Office located on publicly maintained roads. (2) MB access. KIB and designees of KIB may enter Contractor's operation and maintenance facilities or Contractor Office during Contractor Office Hours on 2 hours prior telephone, E -mail or facsimile notice, and investigate, observe, inspect and review Contractor's operations and Contract Service Assets. Contractor will make available a management representative or other authorized person to conduct each KIB representative through facilities. This right does not limit KIB's right to inspect Vehicles. b. Use and possession; acquisition. Contractor will either own each Contract Service Asset or ensure that any lease, financing documentation, rents or purchases by installment or conditional sale agreement with respect to each Contract Service Asset allows KIB use and possession of the Contract Service Asset in order to realize KIB's rights to use and possession and, with respect to Carts, acquisition or purchase. Any Contract Service Asset Document, will: (1) allow the Guarantor to assume Contractor's obligations and to continue use of Contract Service Assets in performing Contract Services; (2) allow MB or its designee to assume Contractor's obligations and to continue use of Contract Service Assets in performing Contract Services. Contactor will provide a copy of the Contract Service Asset Document upon MB request. d. Inventory. Contractor will prepare a preliminary inventory of Refuse Carts 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 at any time promptly upon the direction of MB, Contractor will update the inventory to reflect acquisition or replacement of Refuse Carts, accompanied by a representation and warranty signed by Contractor that all Refuse Carts meet specifications. 7 -7.07 Customer Billing; Bill & MB Fee Collection. a. Customer service fees. Contractor will provide billing and bill collection services at the time and in the manner satisfacto to MB, in amounts a ual to the Contractor Service Fee and any other fees directed by MB. 64 COLLECTION SERVICES CONTRACT 1 Kodiak Island Borough, AK b. KIB fees. (1) Amount. On behalf of MB, Contractor will charge Customers a fee or fees in the amount directed by MB. Contractor will not separately itemize that fee or fees on invoices to Customers or any other correspondence with Customers, unless authorized by MB. 65 (2) Recording Fees. Upon receipt of any Customer's payment of fees for Contract Service, Contractor will simultaneously record receipt of MB's fees in separate accounts within Contractor's detail general ledger. Those fees belong to MB and not to Contractor. (3) 7 -7.08 Containers. Remitting Fees. Contractor will remit to MB amounts equal to MB's fees at the time directed by MB. Contractor may retain the remaining amounts received from Customers as compensation for fully and timely satisfying Contractor's obligations under this Agreement. a. Providing Containers (1) New Carts and New or Used Dumpsters. Contractor will provide the following Containers no later than the date provided in Contractor Transition Plan: (i) new Carts having the specifications described in Contractor Documentation as approved by MB (including bear Carts, a cart designed to be resistant to opening by bears, set out at Premises located outside the City of Kodiak), that can be recycled, and with warranty of at least one year's duration; and (ii) new Dumpsters, having the specifications described in Contractor Documentation as approved by MB. (2) New or Used 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 MB Representative, they are in good repair and appearance. Contractor is not obligated to provide a Customer with a Compactor. Contractor will provide additional and replacement Containers (other than Compactors) as necessary to ensure that Customer always has a Container. (2) Container Inventory. As part of Contactor Documentation, Contractor will provide MB with a copy of Service Asset Documents related to Container acquisition and financing and Container inventory promptly upon Container acquisition and thereafter promptly at MB request. Contractor will update the Service Asset Documents and Container inventory in each Annual Report and within 10 days of MB request. COLLECTION SERVICES CONTRACT Kodiak Island Borough, AK b. Changes in Service; Repair or Replacement. Contractor will exchange, remove and/or deliver Containers at the time directed by MB and surcharges, if any, listed on the Service Fee Table, including for the following: (1) changes in Service, (2) repair of damaged Containers, and (3) replacement of damaged or stolen Containers. c. 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 -7.09 Customer Service Subscription and Bill of Rights. a. Form and Content. Before commencing new Contract Service or changing Contract Service levels or frequency, Contractor will provide each Customer with a written Customer Service Subscription. 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. b. Service Requests. Contractor will accept Customer's requests for commencement of or changes in regular or special Service by phone, mail, fax or E -mail. c. Copies. Contractor will provide MB with a copy of any Customer Service Subscription promptly upon request. 66 COLLECTION SERVICES CONTRACT 1 Kodiak Island Borough, AK SECTION BREACH LIQUIDATED DAMAGE 4 -4.01 failure to provide Contract Services for any Customer (including missed pickups of Carts) $250 per each failure / per Customer / per day; as evidenced to satisfaction of KIB, including oral or written communication with Customer and review of that Customer's complaint log 4 -4.01 failure to return emptied Container to Set -out Site $100 per failure / per Container / per Collection 7 -7.08 failure to deliver, repair, replace or pick- up Carts, Dumpsters or Roll -offs $100 per failure / per Customer / per day 9.01 / MB Code failure to timely compensate Customer, or to repair or replace damaged pavements, utilities or Customer property $300 per failure / per Customer / per day 9.01 / KIB Code failure to clean up litter, spills, leaks $100 per incident / per day 9.01 / MB Code, 10.01 failure to provide MB access to or copies of Records (including Routing) $100/$200/$300/$400 if not provided within 7 / 14 / 21 / 28 days, of MB request; and $500 for each week thereafter 4 -4.04 failure to timely return a MB call in event of emergency $500 7 -7.01 / Customer Complaint Protocol failure to record a complaint $100 per failure 7 -7.01 / Customer Complaint Protocol failure to timely respond and resolve a Customer complaint $250 per failure / per Customer / per day 9.01 / MB Code failure to observe Collection hours $250 per failure / per Customer 9.01 / MB Code failure to observe Contractor Office Hours $250 per failure / per day 7 -14.01 Liquidated Damages. Liquidated Damages in the chart below apply to each Breach established or substantiated to satisfaction of MB, for each day (the first occurrence and continuation on successive days). For example, failure to correct a missed pickup would result in liquidated damages on the day of the scheduled pickup and each following day until corrected. MB's assessment of Liquidated Damages for the following Breaches does not preclude MB from enforcing the MB Code for corresponding Violations. 67 COLLECTION SERVICES CONTRACT 1 Kodiak Island Borough, AK 9.01 / KIB Code failure to disclose or correctly describe Service options to any Customer $100 per failure / per Customer 9.01 / KIB Code driving overweight vehicles $500 per incident 17.10 discourteous behavior by Contractor's employees or Subcontractors reported by or complained of by Customers to Contractor or KIB $300 per report or complaint / per Customer 9.01 / KIB Code noise emission in excess of prescribed levels $300 per Vehicle / per day Vehicle is used to provide Collection 9.01 / KIB Code failure to maintain Contractor's phone number on Vehicles $200 per failure / per Vehicle / per day Vehicle is in use to Collect Solid Waste 9.01 / KIB Code failure to clean up litter $100 per failure / per spill location / per day 9.01 / KIB Code failure to cover materials in open Collection Vehicles $100 per failure / per truck / per route (first pick -up until delivery to Solid Waste Management Facility 6-6.01e, [possibly Attachment 5, if recycling program implemented) failure to deliver any Solid Waste to a facility approved by MB $1,000 per load for first failure; $5,000 per load for each subsequent failure 7 -7.07 KIB Code charging any Customer in excess of the scheduled Service Fee (such as the incorrect $ /Cart ) $500 per inaccurate invoice / per Customer 9.01 / MB Code failure to submit any general Customer correspondence, promotional material, news releases, public education or community relations materials to MB for MB review $500 per failure / per Customer plus $100 per day prior to retraction or correction of misinformation identified by MB 68 COLLECTION SERVICES CONTRACT I Kodiak Island Borough, AK ATTACHMENT 8: REFUSE DISPOSAL. 8 -1.01 Transportation to MB Landfill. a. MB Landfill. Contractor will transport and deliver all Refuse that it Collects to KIB Landfill. Contractor will coordinate that deliver with Holiday Collection schedules and closures for repair and maintenance. Rat arate from Refuse that it Collects at Commerci tse in one Vehis b. Compliance and cooperation. Contractor will ensure that its vehicles can pass in and out of the door at the baler at KIB Landfill. Contractor will cooperate with MB Landfill operator and comply with all rules in effect at the MB Landfill, including the following: (1) delivering Refuse only at the times and on the days specified by MB; (2) following directions to unload Collection Vehicles in designated areas, (3) accommodating operations and maintenance activities, and (4) complying with Unpermitted Waste exclusion programs. c. Dis osal Fees. Contractor will a Dis osal costs ' ncluding Disposal IB landfill. 8 -1.02 Limited Disposal Defense and Indemnification. a. Conduct Included. Contractor will do the following: (1) indemnify, (2) defend with counsel approved by MB, (3) release, and (4) hold harmless KIB and KIB's Related Parties from and against all Liabilities and Losses paid, incurred or suffered by, or asserted against, MB or MB's Related Parties, but only to the extent that those Liabilities and Losses are caused by the following: 69 (i) Contractor negligence or misconduct. The wrongful, willful or negligent act, error or omission, or the misconduct of Contractor; (ii) Non - Customer materials. The collection, transporting, delivery, recycling, processing, composting, disposal or other handling by Contractor of Unpermitted Waste that Contractor Collects outside the Contract Service Area or from Persons other than Customers; (iii) Failure to Comply with Unpermitted Waste Screening Protocol. The failure of Contractor to train its employees as required by Applicable Law or the Unpermitted Waste Screening Protocol, whichever is more stringent; (iv) Contractor - identified Unpermitted Waste. The improper or negligent collection, handling, delivery, processing, recycling, composting or disposal by Contractor of Unpermitted Waste that Contractor inadvertently collects but that is subsequently identified as Unpermitted Waste. COLLECTION SERVICES CONTRACT I Kodiak Island Borough, AK KIB acknowledges that the mere presence of hazardous waste in Refuse will not constitute negligence or in and of itself create any liability on the part of Contractor absent any of the circumstances described in items (i) through (iv) of this subsection. b. MB Sole Negligence Excluded. Contractor is not required to reimburse or indemnify KIB to the extent any Liabilities or Losses are due to the sole negligence of KIB with respect to Contract Services. c. Indemnity With Respect to Contract Services Only. Contractor's Indemnity described in this Section is limited to Liabilities and Losses resulting from and after the Contract Commencement Date. d. Statutory Agreement. Contractor's Indemnity under this Section is intended to operate as an agreement under 42 U.S.C. Section 9607(e) and any corresponding Applicable Law provisions of State, to insure, release, protect, hold harmless and indemnify KIB from Liabilities and Losses under this Section. Contractor's Indemnity under this Section includes the specific actions or inactions of Contractor described in items numbered (i) - (ii) consecutively of Subsection a (for example, a driver accepting a Customer bribe and illegally disposing of Unpermitted Waste that upon identification thereof must be segregated and transported as required by Applicable Law). 70 COLLECTION SERVICES CONTRACT 1 Kodiak Island Borough, AK Service Description Contract Section Contractor Service Fee (monthly) On call Collection of Bulky Waste Attachment 4 $25.00 per call (not item) plus Direct Cost of Disposal Rollout Service for Non- eligible Customers — Initial 30' or fraction thereof Attachment 4- 4.01d $7.36 Rollout Service for Non- eligible Customers — Each additional 30' of fraction thereof Attachment 4- 4.01d $6.13 Beginning 7 months after Collection Commencement Date, replacement of Cart in excess of once / calendar year Attachment 7- 7.04b $25.00 plus Direct Cost of Cart Ca • aci / # of Refuse Carts 32 : allon Monthl Service Fee $28.90 for Discount 21.90 64 :allon $34.09 27.09 96 :allon $38.31 Each additional 32 gallon $28.90 Each additional 64 gallon $34.09 Each additional 96 allon $38.31 Residential Roll -off/ $38.31 Additional Set -Out Fee $6.87 ATTACHMENT 13.01: CONTRACTOR SERVICE FEE SCHEDULE. Contractor Service Fees adopted by KIB as of the Contract Commencement Date are appended for convenience of the Parties to this Attachment. Under Article 13 and Applicable Law, KIB may amend these Fees, and the Fees will automatically be deemed to apply to this Contract without any further action. Contractor is deemed to have knowledge of Applicable Law, including MB resolutions and ordinances. However, for convenience of administering this Contract, the Parties may from time to time amend this Attachment by attaching the most recent dated current Contractor Service Fee resolution or ordinance to this Attachment. In addition, if Customer requests Service at a Receptacle capacity and/or Collection frequency not provided in the Contractor Service Fees adopted by MB, Contractor may charge that Fee following MB approval and Customer agreement. Contractor Service Fee for Carts Section / Attachment 4 7 1 Contractor Service Fee Surcharees for COLLECTION SERVICES CONTRACT !Kodiak Island Borough, AK Bear lock for Customers in portion of Contract Service Area not required to have bear locks Pickups per Week / Contractor Service Fee (monthly) One -time difference between Direct Cost of Cart with / without bear lock Drive in Service — First 100' 3 $18.40 Drive in Service — 100' — 300' 2 yard $30.67 Drive in Service — More than 300' $530.79 Individually assessed 1 Roll -Off / Clean -up 2.6 yard $222.72 $445.44 Costs Dumpster Size Pickups per Week / Contractor Service Fee (monthly) 1 2 3 4 5 2 yard $176.93 $353.86 $530.79 $707.72 $884.65 2.6 yard $222.72 $445.44 $668.17 $890.89 $1,113.61 3 yard $281.40 $562.79 $844.19 $1,125.58 $1,406.98 3.6 yard $302.24 $604.48 $906.73 $1,208.97 $1,511.21 4 yard $355.11 $710.22 $1,065.33 $1,402.44 $1,775.55 5 yard $357.55 $715.10 $1,072.65 $1,430.20 $1,787.75 5.5 yard $371.76 $743.52 $1,115.28 $1,487.40 $1,858.80 6 yard $424.94 $849.88 $1,274.82 $1,699.76 $2,124.70 8 yard $531.18 $1,062.36 $1,593.54 $2,124.72 $2,655.90 Contractor Service Fee for Dumpsters (Section / Attachment 4) *Contractor Service Fee for multiple Dumpsters is equal to the above scheduled amounts multiplied by the number of Dumpsters. COLLECTION SERVICES CONTRACT 1 Kodiak Island Borough, AK Service Description Agreement Section Amount Change in size and number of Dumpster more frequently than once per Contract Year Attachment 4- 4.02b2 $20.00 per exchange per Dumpster Locks on Dumpster Attachment 4- 4.402 Additional $5.00 per month Dumpster Size 10 -20 yard 30 -40 yard 10 -20 yard Compactor 30 -40 yard Compactor $148.50 plus disposal $198.00 plus disposal $148.50 plus disposal plus disconnect fee - $21.25 $198.00 plus disposal plus disconnect fee - $21.25 Contractor Service Fee for Drop Box Service (Section / Attachment 4) Contractor Service Fee Per Ti Contractor Service Fee Surcharges for Dumpsters COLLECTION SERVICES CONTRACT 1 Kodiak Island Borough, AK ATTACHMENT 20.01: 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. Affi liate Parent means an Affiliate that, directly or indirectly, through one or more intermediaries, controls Contractor. Annual Report means the Report required under Section 10.02 in form and content satisfactory to KIB. Applicable Law 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) labor relations, (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 warning flags; registration; weight limits; cleaning; enclosure / water -tight beds; (ii) The appropriate class of drivers' licenses issued by the State Department of Motor Vehicles; (iii) any State laws relating to operating equipment construction, safety, and parking and identification, (16) Carts: such as: (i) maintenance and placement of Carts; (ii) placing Contractor's name and telephone number on Receptacle; 7 4 COLLECTION SERVICES CONTRACT 1 Kodiak Island Borough, AK (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 et seq.); (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) MB Code, (20) Miscellaneous: (i) Civil Rights Act of 1964 (Sub chapter VI or Chapter 21 of Title 42); (ii) Customer's privacy rights. Reference to Applicable Law includes amendments and supplements to or replacement, restatement or recodification occurring after the Contract Commencement Date. Base Service Level is described on the Contractor Service Fee Schedule. Bear Cart means a cart designed to be resistant to opening by bears. Breach means Contactor's failure to fully and timely meet any Performance Obligation. Bulky Item(s) means any large item of Solid Waste that 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, 75 COLLECTION SERVICES CONTRACT I Kodiak Island Borough, AK (7) any item (other than lumber) that can be cut or broken down meeting the following requirements: (i) not 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 -6.01, such as the following: (1) bundled Yard Waste, branches, (2) railroad ties or similar type of retaining wall timbers, (3) remodeling debris, including shingles, (4) carpeting, (5) sinks, concrete laundry tubs and cast iron plumbing fixtures, (6) windows and doors, (7) 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') 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: 76 (1) the adoption, promulgation, repeal, modification, amendment or other change in Applicable Law or change in judicial or administrative interpretation thereof occurring, other than: COLLECTION SERVICES CONTRACT 1 Kodiak Island Borough, AK Collect, Collection or Collecting other form thereof means pick -up and removal of discarded Solid Waste required under this Contract, including Sections 4 -4.01 (from Carts), 4.02 (from Dumpsters) and 4.03 (Bulky Items), 6 -6.01 (4 -yard Dumpsters and Roll -Off Containers) and 6- 6.02 (Roll -off Containers). Collection Commencement Date means the date (July 1, 2010) on which Contractor must begin Collecting solid waste at Customer Set -out Sites. (Compare "Contract Commencement Date".): (1) Attachment 4 -4.03 (residential Carts), (2) 4 -4.04 (commercial Dumpsters), (3) 6 -6.01 (on -call Roll -Off containers), and (4) 6 -6.02 (permanent Roll -off Containers). Collection Hours means the time during which Contractor can Collect Solid Waste under the KIB Code. 77 (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 MB that are obligations of Contractor and not merely fees that Contractor must collect on behalf of KIB), or (iii) employment taxes; or (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) 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. COLLECTION SERVICES CONTRACT 1 Kodiak Island Borough, AK 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 Sections 14.01 and 14.05. Contract means this agreement, including the following: (1) all Attachments, (2) all Exhibits and (3) all appended documentation which Attachments, Exhibits and documentation are incorporated in this Contract by reference. Contract Commencement Date means the date ! Ili 1, 2010 in which this Contract is signed by 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 Performance Obligations in the Attachments 4 (Collection in Carts, dumpsters or compactors), 5 (possible Collection of recyclables in the future), 6 (Collection in roll -offs), 7 (Collection specifications and standards; Customer billing and collection), and 8 (transportation to KIB landfill). (Compare "MSW Management Services") Contract Service Area means all land within the boundaries of MB 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, COLLECTION SERVICES CONTRACT Kodiak Island Borough, AK (3) (4) (5) financing statement, mortgage or other instrument establishing a security interest to or by Contractor, if requested by MB, documents related to Contractor's rights with respect to the Contractor Service Asset, such as Cart warranties, and if requested by MB, 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 Day means a weekday or Saturday on which Contractor must perform Contract Services, Holidays excepted. (Compare "day" and "KIB Business Day ") Contract Service Exceptions means: 79 (1) (2) (3) (4) (5) Solid Waste Not Proper Placed in Receptacles: discarded Solid Waste (other than any Bulky Item) is not placed inside a Receptacle. Any Receptacle that weighs more than limits prescribed on Receptacle's manufacturer warranty or other documentation acceptable to MB and noted on the Receptacle. 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 at the Set -out Site under 4 -4.04. Unsafe Condition: the Set -out Site is not safely accessible to Vehicles or Contractor's employees. Unpermitted Waste or Unsafe Materials: Contractor observes Unpermitted Waste in a Receptacle or at the Set -out Site. Contractor means the following: (1) the Person named and signing the signature page of this Contract, (2) any transferee of that Person consented to by MB under Section 16.01 (3) for 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 MB under this Contract in form and content satisfactory to MB, listed and collected in the Appendix. COLLECTION SERVICES CONTRACT 1 Kodiak Island Borough, AK Contractor Office means Contractor's office located in MB at the address listed in the Appendix. Contractor Office Hours means at least 8:00 a.m. to 5:00 p.m. Monday through Friday (Holidays excepted). (Compare "KIB Office Hours ") Contractor Payment Obligations means amounts Contactor owes to MB, 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 as defined and under Section 20.05. Contractor Phone Hours are hours (excepting Holidays) between the following times: (1) 8:00 a.m. and 5:00 p.m., Monday through Friday, and (2) if Contractor provides Contract Services on Saturday, from 8:00 a.m. to noon on Saturdays. Contractor Representative means Contractor Representative named by Contractor under Section 17.07b 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 appended to Attachment 13.01. Contractor Transition Plan means the plan under Attachment 7 -7.06 in form and content satisfactory to MB. It is Contractor Documentation. 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; SO COLLECTION SERVICES CONTRACT I Kodiak Island Borough, AK (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, 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 Attachment 7 -7.01 in form and content satisfactory to KIB. It is Contractor Documentation. Customer Service Subscription means the service order form under Attachment 7 -7.09, in form and content satisfactory to KIB. It is Contractor Documentation. Day means a calendar day. (Compare "KIB Business Day" and "Contract Service Day") Default means "Default" defined in Section 14.02. 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 MB) or third parties 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 MB Counsel's Office) investigation fees and expert witness fees. which Direct Costs are substantiated by: `1 COLLECTION SERVICES CONTRACT I Kodiak Island Borough, AK (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 (8) if MB 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 ". 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. Goods or Services means goods or services used in providing Contract Services, including the following: (1) labor, (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. 8 ? COLLECTION SERVICES CONTRACT I Kodiak Island Borough, AK Guaranty means the guaranty in substantially the form attached as Exhibit 11.04, as approved by KIB, signed by Guarantor. Herein, Hereof, Hereunder and variations mean "in this Contract ", "of this Contract ", "under this Contract "; "hereinbefore" and "hereinafter" mean before and after the Contract Commencement Date, respectively. Holidays means days on which MB 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 hold harmless obligations, defenses, indemnities and releases under this Contract, including under Attachment 8 -8.01 and Section 11.02. Independent Expert is the Person having the qualifications and selected under Section 12.03. Insurance means the insurance coverage described in Section 11.01. MB means the following: (1) Kodiak Island Borough, and (2) any transferee of Kodiak Island Borough under Section 16.01a, and (3) for purpose of Indemnities, Kodiak Island Borough's Related Parties. MB Business Day means any day on which MB Administration office is open to do business with the public. (Compare "Contract Service Day".) MB Code means municipal law of KIB. MB Governing Body means KIB Assembly. MB Office Hours means the hours of any MB Business Day on which MB Administration office is open to do business with the public. (Compare "Contractor Office Hours ") COLLECTION SERVICES CONTRACT 1 Kodiak Island Borough, AK MB Representative means the individual holding the position named by KIB under Section 17.07a. (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") MB Landfill means the landfill owned by KIB. Letter of Credit means the letter of credit described in Section 11.03. 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, consequential and punitive) whether in contract or in tort, such as natural resource, property and personal injury damages, (11) costs and expenses, including (i) all costs and expenses of litigation, mediation or arbitration, accountants fees, engineers fees, attorneys 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, (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 14.01. 84 COLLECTION SERVICES CONTRACT 1 Kodiak Island Borough, AK Monthly Report means the report prescribed by Attachment 10.02a 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 MB 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 19.01. "Due Notice" or "Notice duly given ", refers to Notice given under Section 19.01. 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 318(a)(3)(C) thereof; (2) Section 318(a)(5)(C) is disregarded, and (3) ownership interest of less than 10 percent is disregarded and percentage interests is determined on the basis of the percentage of voting interest or value which the ownership interest represents, whichever is greater. Party and Parties means the following 2 Persons, individually and together: (1) KIB, and (2) Contractor. Performance Assurances means each and every Indemnity, Insurance, Letter of Credit and Guaranty, and any other instrument described in Article 11. Performance Obligations means each and every obligation and liability of Contractor under this Contract. Permit means the following: (1) permit, (2) registration, (3) order, COLLECTION SERVICES CONTRACT 1 Kodiak Island Borough, AK (4) license (including business license), (5) approval, (6) authorization, (7) consent and (8) entitlement 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. 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; (3) Affiliate Parents' directors; (4) individual who reviews or negotiates Contractor's contracts (including this Contract); (5) individual who provides in -house legal services; (6) Affiliate insurer (captive insurance), (7) Guarantor, and (8) 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: (1) reduction, (2) separation, (3) recovery, (4) conversion or (5) recycling, and (6) creating compost. processing does not mean baling refuse. tih COLLECTION SERVICES CONTRACT 1 Kodiak Island Borough, AK Processing means "processing" of Solid Waste. 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 ("2"d Quarter "), (3) July, August, September (3 Quarter "), (4) October, November, December ( "4 Quarter "). RCRA means the Resource Conservation and Recovery Act (42 U.S.C. Section 6901 et seq.). Reasonable Business Efforts means those efforts a reasonably prudent business Person would expend under the same or similar circumstances in the exercise of that Person's business judgment, intending in good faith to take steps calculated to satisfy the obligation which that Person has undertaken to satisfy. Receptacle means any Cart, Dumpster, Roll -off Container or other receptacle (such as bags designed for solid waste discard, but not shopping or grocery bags) for storing discarded Refuse. Records means information relating to Contract Services and other Performance Obligations, including documentation in any form or media, including: (1) ledgers and books of account, (2) invoices, vouchers and canceled checks, (3) logs and correspondence, (5) data and computations, (6) files, (7) reports, (8) 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 (9) photographs. Recyclables means Solid Waste that is recyclable. 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. Refuse means Solid Waste comprised of rubbish, trash and garbage, excluding any Bulky Item that Contractor Diverts. S7 COLLECTION SERVICES CONTRACT I Kodiak Island Borough, AK 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 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 10.02. 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: (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. NNW Discount meanhe amount by which thdtor 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 Services. (Compare "KIB Business Day".) COLLECTION SERVICES CONTRACT I Kodiak Island Borough, AK 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 located in the Contract Service Area that Contractor must Collect, including: (1) Refuse, (2) Recyclables, (3) Bulky Items, and (4) C &D Debris. but excluding Unpermitted Waste. 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 MB. 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, (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. 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 listed in Section 15.O1a. ti9 COLLECTION SERVICES CONTRACT I Kodiak Island Borough, AK 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 interest in Contractor on the Contract Commencement Date ( "Immediate Family ") or trust created primarily to benefit members of the Immediate Family; (6) substitution by a surety company providing any performance bond of another Person for Collector to perform Contract Services; and (7) assumption of any of Contractor's rights under this Contract, or (8) assumption by, delegation to or takeover of any Performance Obligations or any other Contractor's duties or responsibilities under this Contract by any Person other than Contractor, whether by Subcontract (unless approved by KIB under Section 17.10) 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 plan under Attachment 7 -7.04, in form and content satisfactory to KIB. It is Contractor Documentation. 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 MB, such as wind, rain or snow); (2) sabotage, explosion; (3) insurrection, riot or civil disturbance, war or other emergency affecting MB declared by the President of the United Sates or Congress of the United States, the State Governor or MB Governing Body; COLLECTION SERVICES CONTRACT 1 Kodiak Island Borough, AK (4) failure of public agency or private utility to provide and maintain water, power or service in MB or at Contractor's operations and maintenance yard or administrative offices; (5) other catastrophic events beyond the reasonable control of that Party and not the result of willful or negligent action or inaction of that Party (other than the contesting in good faith or the failure in good faith to contest that action or inaction), which materially and adversely affects the ability of either Party to perform any obligation under this Contract despite that Party's exercise of due diligence. Uncontrollable Circumstances excludes, without limitation: (1) Breach, Default or Contractor's financial inability to satisfy its Performance Obligations; (2) strikes, work stoppages or other labor disputes or disturbances of any Subcontractor or Contractor's inability to hire adequate numbers of personnel who are competent and skilled in the work to which they are assigned; (3) failure of Contractor to obtain Permits and patents, licenses, or trademarks necessary to perform Contract Services; and (4) the failure of any Contract Service Asset to function under any warranties, unless caused by Uncontrollable Circumstances. Unpermitted Waste means materials that cannot be disposed of in the MB Landfill under Applicable Law of the State or MB rules. Unpermitted Waste Screening Protocol means the protocol under Section 7 -7.02, in form and content satisfactory to MB. It is Contractor Documentation. 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. 91 COLLECTION SERVICES CONTRACT I Kodiak Island Borough, AK "CONTRACT MANAGERS" CONTRACTOR AFFILIATE PARENT SUCCESSIVE AFFILIATE PARENT (1) CONTRACTOR REPRESENTATIVE Name and/or Title Jeff Riley, COO Jeff Riley, COO (2) OFFICERS: Chief Operating Officer Chief Financial Officer Telephone 907.273.2763 (3) Management Board 1. 2. 3. 4. 5. 907.486.5308 Email (4) "POSITION OF INFLUENCE" (1) officers of Parent Affiliate President Vice - President Secretary Treasurer jeffr(akwaste.com carollmna,akwaste.com APPENDIX: CONTRACTOR INFORMATION AND DOCUMENTATION 9� Attachment 21.01 "Contract Managers" (with respect to Section 15.02 Criminal Activity) COLLECTION SERVICES CONTRACT 1 Kodiak Island Borough, AK Contractor Representative 17.07b Contractor Notice 19.01 "Contractor Office" (local) Attachment 21.01 Name and/or Title Jeff Riley, COO Jeff Riley, COO Caroll Mahoney, Site Manager Telephone 907.273.2763 907.273.2763 907.486.5308 Email ieffr @akwaste.com jeffr(akwaste.com carollmna,akwaste.com Telefax 907.273.2730 907.273.2730 907.486.2300 Postal address 6301 Rosewood St Anchorage, AK 99518 6301 Rosewood St Anchorage, AK 99518 1621 Mill Bay RD Kodiak, AK 99615 Delivery address 6301 Rosewood St Anchorage, AK 99518 6301 Rosewood St Anchorage, AK 99518 1621 Mill Bay RD Kodiak, AK 99615 APPENDIX: CONTRACTOR INFORMATION AND DOCUMENTATION 9� Attachment 21.01 "Contract Managers" (with respect to Section 15.02 Criminal Activity) COLLECTION SERVICES CONTRACT 1 Kodiak Island Borough, AK (2) Directors of Parent Affiliate (3) individual who reviews / negotiates Contract (4) individual providing in- house legal services (5) Guarantor (6) Affiliate insurer (7) Affiliate surety etc. 3 COLLECTION SERVICES CONTRACT 1 Kodiak Island Borough, AK CONTRACTOR DOCUMENTATION (in form and content satisfactory to MB) 7 -7.01 CUSTOMER COMPLAINT PROTOCOL 7 -7.02 UNPERMITTED WASTE SCREENING PROTOCOL 7 -7.03 TRANSITION PLAN 7 -7.07 CUSTOMER BILLING AND BILL COLLECTION PROCEDURE 7 -7.08 CART INVENTORY AND SERVICE ASSET DOCUMENTATION (purchase invoices & warranties) 7 -7.09 FORM OF CUSTOMER SERVICE SUBSCRIPTION; "BILL OF RIGHTS" 11.01 EVIDENCE OF INSURANCE: (1) COIs, (2) ENDORSEMENTS, (3) SCHEDULES 11.03 LETTER OF CREDIT 11.04 GUARANTY 94 COLLECTION SERVICES CONTRACT 1 Kodiak Island Borough, AK To: KIB Assemb From: Judy Fulp Date: April 12, 201 Subject: Liens for Delinquent Garbage Bills Almost two months ago, on February 18, 2010, 1 wrote you a similar memo stating my inability to approve the Alaska Waste contract until there were changes for safety and financial protections of the customer. Changes were made in the collection contract, after much public testimony. Now, everyone outside City limits will stay with dumpsters until transfer stations can be built, because of safety considerations for the customers from bears and icy conditions. I feel like my second concern about financial protection for the customer has not adequately been addressed in the new proposed Borough Ordinance, Chapter 8.25 Solid Waste Collection and Disposal. I cannot vote for the new chapter 8.25 until section 620 to 625 is removed from ordinance 8.25. Lines 620 -625 of chapter 8.25 states: D. Liens. Charges for solid waste collection and disposal service constitute a hen chargeable 621 against the property being serviced, as if the charge had been levied or assessed as a property 622 tax. If a customer does not pay solid waste service charges, upon request of the contract hauler 623 or by the determination by the borough, the borough may foreclose the solid waste collection 624 service lien in the same manner as a property tax lien or as any other lien or mortgage against 625 property. I would like to see these five lines taken out of ordinance 8.25 because it puts a huge financial burden on Kodiak families if they cannot pay their garbage bill for some reason. Garbage collection is an essential community service, the same as water, electricity and home heating fuel. I propose that the collection of overdue garbage bills be in the same manner as for the other essential home services of water, electricity and home heating fuel. I propose, after two months of non - payment on a garbage bill, that a claim be made in small claims court by the borough to garner the customer's Alaska Permanent Fund Dividend in order to collect payment on the overdue bill, I, also, propose that the borough establish a DELINQUENT GARBAGE BILL ACCOUNT which can provide the payments to the contract hauler, Alaska Waste, until reimbursement for past -due garbage bills occurs, through the garnering of the delinquent customer's Alaska Permanent Fund Dividend. TITLE: SUMMARY: FISCAL NOTES: N/A Account No.: Amount Budgeted: Expenditure Required: KODIAK ISLAND BOROUGH AGENDA STATEMENT APRIL 15, 2010 REGULAR MEETING APPROVAL FOR AGENDA: RECOMMENDED MOTION: Move to adopt Resolution No. FY2010 -31. Form Ver. 06/30/2009 ITEM NO: 13.B.1 Resolution No. FY2010 -31 Opposing "An Initiative Creating An Alaska Anti - Corruption Act" Which Will Be On The 2010 Alaska Primary Election. This resolution opposes the "Alaska Anti - Corruption Act" initiative that will be on the Alaska primary ballot for the Primary Election on August 24, 2010. The Borough believes that the affects of this initiative will be very detrimental to its working relationship with the state legislature in the following ways: • municipalities will not be able to hire lobbyists for capital projects or for help with Legislation; • elected officials will not be able to travel to Juneau to talk with the legislature unless they pay for their travel and lodging with their own money; and • municipalities will not be able to have any person lobby unless they are specifically invited by a Legislator. The Borough also believes that this initiative would infringe upon the citizen's right to communicate with their elected officials and prohibits exercising their Constitutional rights of free speech and the right to petition our government for redress. This initiative was submitted by an individual from New York City who filed the same initiative in at least three other states. The initiative passed in Colorado but was recently struck down as unconstitutional. 1 WHEREAS, stated; and WHEREAS, KODIAK ISLAND BOROUGH RESOLUTION NO. FY 2010 -31 Introduced by: Borough Assembly Requested by: Borough Assembly Drafted by: Alaska Municipal League Introduced on: 04/15/2010 Adopted on: A RESOLUTION OF THE ASSEMBLY OPPOSING "AN INITIATIVE CREATING AN ALASKA ANTI - CORRUPTION ACT" WHICH WILL BE ON THE 2010 ALASKA PRIMARY ELECTION WHEREAS, on August 24, 2010, an initiative will be on the Alaska primary ballot which will ask the voters to decide if public funds can be used for election campaigns; and the Kodiak Island Borough believes that this law goes much deeper than is municipalities would be affected in the following ways: • municipalities will not be able to hire lobbyists for capital projects or for help with legislation; • elected officials will not be able to travel to Juneau to talk with the legislature unless they pay for their travel and lodging with their own money; and • municipalities will not be able to have any person lobby unless they are specifically invited by a legislator. WHEREAS, the Kodiak Island Borough depends on a close working relationship with the state legislature; and WHEREAS, this initiative would seriously disrupt that relationship, to the detriment of all Alaskans; and WHEREAS, this initiative would seriously infringe upon the citizens' right to communicate with their elected officials; and WHEREAS, holders of state or local government contracts of over $500 /year would be prohibited from making political contributions, as well as would their family members; and WHEREAS, non - profits that receive local or state funds or grants would find that board members and their immediate family could no longer take part in government issues; and WHEREAS, this bill will bring government in the State of Alaska to a virtual stop; and WHEREAS, Alaska's recent corruption issue did not involve the campaign finance structure and this initiative would not have prohibited legislators from taking cash bribes; and WHEREAS, the term "anti - corruption" is a very misleading term used by the proponents of the initiative, as in reality it is a basic attack on our Constitutional rights of free speech and our right to petition our government for redress; and WHEREAS, this initiative has been submitted and funded by a man from New York City; and Kodiak Island Borough Resolution No. FY2010 -31 Page 1 of 2 55 WHEREAS, he has also filed this initiative in at least three other states; and 56 57 WHEREAS, this initiative had passed in only one of those states (Colorado) three years 58 ago and was recently struck down as unconstitutional. 59 60 NOW, THEREFORE BE IT RESOLVED, THAT THE ASSEMBLY OF THE KODIAK 61 ISLAND BOROUGH that the Kodiak Island Borough stands opposed to the "Initiative 62 Creating an Alaska Anti - Corruption Act ". 63 64 ADOPTED BY THE ASSEMBLY OF THE KODIAK ISLAND BOROUGH 65 THIS DAY OF 2010 66 67 68 KODIAK ISLAND BOROUGH 69 70 71 72 ATTEST: Jerome M. Selby, Borough Mayor 73 74 75 76 Nova M. Javier, MMC, Borough Clerk Kodiak Island Borough Resolution No. FY2010 -31 Page 2 of 2 2. PLEDGE OF ALLEGIANCE 8. COMMITTEE REPORTS Kodiak Island Borough Assembly Regular Meeting Guidelines April 15, 2010, 7:30 p.m., Borough Assembly Chambers 1. INVOCATION Captain John Quinn of the Salvation Army. 3. ROLL CALL KIBC 2.16.070.... the Chair shall cause the record to reflect the absence of the member, the REASON for the absence, and whether the absence is excused by the Assembly. Recommended motion: Move to excuse any Assembly member who is absent. VOICE VOTE ON MOTION. 4. APPROVAL OF AGENDA Recommended motion: Move to approve the agenda as submitted. VOICE VOTE ON MOTION. 5. APPROVAL OF MINUTES — None. 6. AWARDS AND PRESENTATIONS A. Student of the Month — Mayor Selby • April 2010 — Staci Sheffler, Junior at Kodiak High School B. Employee of the Year — Manager Gifford C. Longevity Awards — Manager Gifford 7. CITIZENS' COMMENTS (These are limited to three minutes per speaker.) A. Agenda Items not scheduled for public hearing and general comments. Read phone numbers: Local is 486 -3231 and Toll Free is 1- 800 - 478 -5736. Please ask speakers to sign in and state their name for the record. 9. PUBLIC HEARING A. Ordinance No. FY2010 -08 Rezoning Lot 11A, U.S. Survey 3474 From C- Conservation To RNC -Rural Neighborhood Commercial. Recommended motion: Move to adopt Ordinance No. FY2010 -08. Clerk's Note: 86 public hearing notices were mailed and responses are attached on paper. Staff Report — Manager Gifford Kodiak Island Borough Assembly Guidelines April 15, 2010 Page 1 Open public hearing. Read phone numbers: Local is 486 -3231 and toll free is 1- 800 -478 -5736. Please ask speakers to sign in and state their name for the record. Comments are limited to three minutes per speaker. Close public hearing. Assembly discussion and amendments may be offered at this time. ROLL CALL VOTE ON MOTION. 10. BOROUGH MANAGER'S REPORT 11. MESSAGES FROM THE BOROUGH MAYOR 12. UNFINISHED BUSINESS A. Ordinance No. FY2010 -07 Amending the Kodiak Island Borough Code of Ordinances Title 8 Health and Safety by Repealing the Existing Chapter 8.25 Solid Waste Collection and Disposal and Reenacting a New Chapter 8.25 Solid Waste and Collection and Disposal Section 8.25.10 to Section 8.25.240. THE MOTION THAT IS BEFORE THE ASSEMBLY IS: Move to adopt as amended Ordinance No. FY2010 -07. Staff Report — Manager Gifford Recommended motion: Move to amend Ordinance No. FY2010 -07, Line 501 to read from "service at its premises" to "service for its premises" and line 503 to read from "determined by the manager" to "administered by the manager." Assembly discussion and amendments may be offered at this time. ROLL CALL VOTE ON MOTION TO AMEND. Clerk's Note: Comments from Assembly member Fulp are attached on _ paper. It is appropriate to make more amendments at this time. ROLL CALL VOTE ON MAIN MOTION AS AMENDED. B. Contract No. FY2010 -30 Solid Waste Collection Contract. THE MOTION THAT IS BEFORE THE ASSEMBLY IS: Move to authorize the manager to execute Contract No. FY2010 -30 with Alaska Pacific Environmental Services, LLC of Anchorage, AK for the Solid Waste Collection Services. Staff Report — Manager Gifford Assembly discussion and amendments may be offered at this time. ROLL CALL VOTE ON MOTION. Kodiak Island Borough Assembly Guidelines April 15, 2010 Page 2 13. NEW BUSINESS A. Contracts — None. B. Resolutions 1. Resolution No. FY2010 -31 Opposing "An Initiative Creating an Alaska Anti - Corruption Act" Which Will Be on the Alaska Primary Election. Recommended motion: Move to adopt Resolution No. FY2010 -31. Staff report — Manager Gifford Assembly discussion and amendments may be offered at this time. ROLL CALL VOTE ON MOTION. C. Ordinances for Introduction — None. D. Other Items — None. 14. CITIZENS' COMMENTS (These are limited to three minutes per speaker.) Read phone numbers: Local is 486 -3231 and Toll Free is 1- 800 - 478 -5736. Please ask speakers to sign in and state their name for the record. 15. ASSEMBLY MEMBER COMMENTS Announcements — Mayor Selby The next Assembly work session will be held on Thursday, April 29, 2010, at 7:30 p.m. in the Borough Conference Room. The next regular meeting is scheduled on Thursday, May 6, 2010, at 7:30 p.m. in the Borough Assembly Chambers. 17. ADJOURNMENT Recommended motion: Move to adjourn the meeting. ROLL CALL VOTE ON MOTION. Kodiak Island Borough Assembly Guidelines April 15, 2010 Page 3 Kodiak Island Borough Assembly Regular Meeting Agenda Thursday, April 15, 2010, 7:30 p.m., Assembly Chambers 1. INVOCATION 2. PLEDGE OF ALLEGIANCE 3. ROLL CALL 4. APPROVAL OF AGENDA 5. APPROVAL OF MINUTES - None. 6. AWARDS AND PRESENTATIONS A. Student of the Month — April 2010 B. Employee of the Year C. Longevity Awards 7. CITIZENS' COMMENTS (Limited to Three Minutes per Speaker) A. Agenda Items Not Scheduled for Public Hearing and General Comments 8. COMMITTEE REPORTS 9. PUBLIC HEARING A. Ordinance No. FY2010 -08 Rezoning Lot 11A, U.S. Survey 3474 From C- IA Conservation To RNC -Rural Neighborhood Commercial. 10. BOROUGH MANAGER'S REPORT 11. MESSAGES FROM THE BOROUGH MAYOR 12. n UNFINISHED BUSINESS . Ordinance No. FY2010 -07 Amending the Kodiak Island Borough Code of Ordinances Title 8 Health and Safety by Repealing the Existing Chapter 8.25 Solid Waste Collection and Disposal and Reenacting a New Chapter 8.25 Solid Waste and Collection and Disposal Section 8.25.10 to Section 8.25.240. B. Contract No. FY2010 -30 Solid Waste Collection Contract. 13. NEW BUSINESS A. Contracts — None. Meeting broadcast live over radio station KMXT 100.1 FM and Cablevision station 12. Citizens' Comments and Public Hearing Numbers: Toll Free (800) 478 -5736 and Local 486 -3231. Page 1 of 2 Resolutions 1. Resolution No. FY2010 -31 Opposing "An Initiative Creating an Alaska Anti - Corruption Act" Which Will Be on the Alaska Primary Election. C. Ordinances for Introduction - None. D. Other Items - None. 14. CITIZENS' COMMENTS (Limited to Three Mir►utes per Speaker) 15. ASSEMBLY MEMBERS' COMMENTS 16. ADJOURNMENT 17. INFORMATIONAL MATERIALS (No Action Required) A. Minutes of Other Meetings 1. Fire Protection Area No. 1 Board Regular Meetings of January 15 and February 16, 2010. 2. Parks and Recreation Committee Meeting of March 9, 2010. 3. Planning and Zoning Commission Meeting of February 17, 2010. B. Reports 1. Kodiak Island Borough School District Board of Education Regular Meeting Summary of March 22, 2010. 2. Kodiak Island Borough January 2010 and February 2010 Short Reports. Meeting broadcast live over radio station KMXT 100.1 FM and Cablevision station 12. Citizens' Comments and Public Hearing Numbers: Toll Free (800) 478 -5736 and Local 486 -3231. Page 2 of 2 BY: SECOND: oe" BY: ?;0 1 SECOND: u( e \`‘ BY: iltlIK-irkBY: SECOND: 4VOU ( ,,,i, BY: p orovA , c4 k SECOND * conk- SECOND: '0 0 ..: 0 YES NO YES NO YES NO YES NO YES NO Ms. Branson f Ms. Branson Ms. Branson ✓ Ms. Branson ✓ Ms. Branson , / Mr. Friend Mr. Friend Mr. Friend 1 Mr. Friend / Mr. Friend t. I/ Ms. Fulp V Ms. Fulp Ms. Fulp ✓ Ms. Fulp V Ms. Fulp V Ms. Jeffrey ✓ Ms. Jeffrey Ms. Jeffrey / V Ms. Jeffrey � Ms. Jeffre Jeffrey Mr. Kaplan ✓ Mr. Kaplan Mr. Kaplan V Mr. Kaplan ✓ Mr. Kaplan Ms. Lynch V Ms. Lynch Ms. Lynch i Ms. Lynch V Ms. Lynch ✓ Ms. Stutes ✓ Ms. Stutes Ms. Stutes V Ms. Stutes V Ms. Stutes TOTAL: TOTAL: TOTAL: 9 0 TOTAL: TOTAL: 0 The mayor may not v to except in the case where only six members of the assembly are present and there is a three/three tie vote of the ass dF Mayor Selby Mayor Selby Mayor Selby Mayor Selby Mayor Selby Regular ✓ Special Convened: KODIAK ISLAND BOROUGH ASSEMBLY ROLL CALL SHEET Date: 0416 [ 51 ti 7� V Adjourned: . ` C BY: k Y\1 O � �S SECOND: ' g kffAid4A6 0 92-D ao BY: SECOND: I l p BY: 1 SECOND: 2 )0 • 4 ` b� BY: V SECOND: oak .," � BY: SECOND: YES NO YES NO YES NO Y NO YES NO Ms. Branson Ms. Branson ✓ Ms. Branson / Ms. Branson V Ms. Branson Mr. Friend Mr. Friend i Mr. Friend 7 Mr. Friend V Mr. Friend Ms. Fulp • Ms. Fulp ` / V Ms. Fulp ✓ Ms. Fulp Ms. Fulp Ms. Jeffrey Ms. Jeffrey V Ms. Jeffrey I Ms. Jeffrey / V / Ms. Jeffrey Mr. Kaplan Mr. Kaplan ✓ Mr. Kaplan ' / / Mr. Kaplan Mr. Kaplan Ms. Lynch Ms. Lynch V Ms. Lynch V Ms. Lynch V( 1 Ms. Lynch Ms. Stutes Ms. Stutes Ms. Stutes ✓ Ms. Stutes ✓ Ms. Stutes TOTAL: TOTAL: TOTAL: il Q TOTAL: TOTAL: The mayor may not vote except in the case wher: on six members of the assembly are present and there is a ree ree tie vote of the assembly. Mayor Selby Mayor Selby Mayor Selby Mayor Selby Mayor Selby Regular JSpecial 9 Convened: KODIAK ISLAND BOROUGH ASSEMBLY ROLL CALL SHEET CD Date: O"1 15— Adjourned: cu,6 KODIAK ISLAND BOROUGH ASSEMBLY MEETING Regular Meeting of: 4-15 - /d Please PRINT your name l / k}6n•J � D ir2 , 140 " ,4 77 7 — dt- Please PRINT your name tN2:\ S s C1 eo n i-k r rV1 Keu 1 C.. 'NG cg /05w ()NN CyfAI\ 0\11 &tddo April 14, 2010 Kodiak Island Borough Assembly, First, as residents of the Alder Lane, Hillcrest St area we want to thank you for listening to our concerns about the garbage pickup in our area. We still have some concerns now, in that we hear that our area, will still be included in the street garbage cart pickup. • Where do they plan on having us put our garbage carts since we live on a narrow, steep street • How are the residents going to get their cans out to the pickup area, some of us have numerous stairs and no place to store these carts • There are several homes that the garbage trucks won't be able to get to • How is it going to be controlled with blowing trash, we have concerns that our backyards will be filling up with that trash • Will the carts have locks and each resident have a key, and what happens if the keys are lost • On Hillcrest there is a multi family apartment building with 6 or 7 residents, with no area for garbage cart pickup, where will these carts be stored • We don't want to lose a limited parking space to store the garbage carts. • What will the garbage trucks use for a turnaround, residents don't want their parking areas damaged due to weight of these trucks • Truck service has never worked for the vendor or the resident in previous years which is why we now have a dumpster at the bottom of the hill • Hillcrest ends in a dead end and this area is not plowed or maintained during the winter storms. How is garbage pickup going to be addressed at that time. Also where are these residents to keep their carts, they certainly can't put them in someone elses drive way • Most all of us recycle and have small amounts of trash and are in hopes that the residents of Kodiak will join in these efforts to become a green community Thanks again for your consideration of our unique neighborhood situation. Sincerely, Joyce Gregory James & Geneneiva Pearson Vic & Connie Downing John & Barbara Anthony John & Jenny Hansen Christie Chernoff Jeff & Angie Johnson