FY2010-30 Solid Waste Collection and TransportationApril 20th, 2018 .
Waste Connections of Alaska
d/b/a Alaska Waste
6301 Rosewood St.
Anchorage, AK. 99518
Kodiak Island Borough
Engineering & Facilities Department
710 Mill Bay Road
Kodiak, Alaska 99615
Phone (907) 486-9343 Fax (907) 486-9394
dconrad@kodiakak.us
RE: Two -Year Extension of Residential and Commercial Refuse Collection and Transportation
to KIB Landfill
Dear Sir,
With this letter the Kodiak Island Borough wishes to exercise our option for a two-year
extension to your existing Residential and Commercial Refuse Collection and Transportation to
KIB Landfill services contract until June 30, 2020. The same provisions of the original contract
will remain in effect.
The Borough's request for an extension is contingent upon approval by the Kodiak Island
Borough Assembly.
Please review the following insurance certificates: General liability, liability coverage for
pollution conditions resulting from transported cargo, automobile liability coverage and workers'
compensation and employers' liability insurance with the Borough to make sure they are current
with the limits outlined in the original agreement. After review of said documents please provide
the Kodiak Island Borough with a copy of the documents for our records.
You may acknowledge your acceptance of this renewal by signing at the bottom of this
document and returning to our office.
S'y,
ZeXN&hhel
Powers
Manager, Kodiak Island Borough
Waste Collections of Alaska, Inc.
Date
DateLSKA
July 6, 2016
Waste Connections of Alaska
d/b/a Alaska Waste
6301 Rosewood St.
Anchorage, AK. 99518
Kodiak Island Borough
Engineering & Facilities Department
710 Mill Bay Road
Kodiak, Alaska 99615
Phone (907) 486-9342 Fax (907) 486-9394
btucker@kodiakak.us
kodiakak.us
RE: (1) One Year Extension of Residential and Commercial Refuse Collection and
Transportation to KIB Landfill
Dear Sir,
With this letter the Kodiak Island Borough wishes to exercise our option for the (1) One year
extension to your existing Residential and Commercial Refuse Collection and Transportation to
KIB Landfill services contract until dune 30, 2018. The same provisions of the original contract
will remain in effect.
Please review the following insurance certificates: General liability, Liability coverage for
pollution conditions resulting from transported cargo, Automobile Liability Coverage and
Workers' Compensation and Employers' Liability Insurance with the Borough to make sure they
are current with the limits outlined in the original agreement. After review of said documents
please provide the Kodiak Island Borough with a copy of the documents for our records.
You may acknowledge
document and returnini
Sincerely,
Nova M.
Kodiak
F Michkel Powers
Manager, Kodiak Island Borough
Waste Connections of Alaska, Inc.
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Waste Connections of Alaska, Inc. ("WCI") has agreed to purchase, all or substantially
all of the assets of Alaska Pacific Environmental Services Anchorage, LLC ("Seller"), pursuant
to an Asset Purchase Agreement dated August 16, 2011 (the "Purchase A reement") between
WCI, Seller and certain other parties, (the "Sale"). In connection with the consummation of the
Sale, WCI will acquire the assets and certain obligations of Seller, including that certain
Exclusive Service Contract for Residential and Commercial Refuse Collection and
Transportation to KIB Landfill between Kodiak Island Borough and Alaska Pacific
Environmental Service, LLC, effective 2010 as amended, by and between the undersigned and
Seller (the "Contract"). A copy of the Contract is attached as Exhibit A to this Consent.
The undersigned hereby acknowledges that WCI and Seller are contemplating the
consummation of the Sale, and consents and agrees to any direct or indirect transfer or
assignment by Seller to WCI of the Contract (the "Assignment") that has, or may be deemed to
have, occurred upon the consummation of the Sale. The undersigned hereby further agrees that
the Assignment shall not be deemed a breach of the Contract and that the Contract will remain in
full force and effect after the consummation of the Sale. This Consent shall not be effective and
the Assignment shall not be valid or binding on WCI or Seller unless and until the closing occurs
under the Purchase Agreement (the "Effective Date")
The undersigned further consents and agrees to the assumption by WCI of all rights and
obligations of Seller under the Contract that arise on and after the Effective Date. Any claims by
the undersigned for damages or similar liabilities submitted on or after the Effective Date will be
to WCI and not to Seller..
The undersigned acknowledges and agrees that (i), except for Amendment No. 1 dated
June 2011, the Contract has not been amended or modified and remains in full force and effect,
(ii) there is no defense, offset, claim or counterclaim by or in favor of the undersigned against
Seller under the Contract or against the obligations of Seller under the Contract, and (iii) neither
the undersigned nor, to the undersigned's knowledge, Seller, is in default in the performance or
observance of its obligations under the Contract, and the undersigned has no knowledge of any
occurrence of any event that with notice or the passage of time would result in a default by the
undersigned under the Contract.
Date: Y//(v , 2012.
KODIAK ISLAND BOROUGH
J'
Name: Rick Gifford /f
Title: Borough Manager
Address: 710 Mill Bay Road
Kodiak, AK 99615
TVAMIGNM #W
ATTEST:
Nova Javier, MMC
Borough Clerk
Seller's Representations:
Seller represents, and has demonstrated to the Kodiak island Borough pursuant to Section
16.01(c) of the Contract, that WCI has the operational and financial ability to satisfy Performance
Obligations as set forth in the Contract. Seller has paid the Kodiak Island Borough $I,500 in
accordance with Section 16.01(d) of the Contract to cover potential costs of reviewing and
approving the proposed transfer.
ALASKA PACIFIC ENVIRONMENTAL
SERVICES ANCHURAGE, LLC
By:
Its ..
WCI Representations:
Except as defined in this Consent, capitalized terms shall have the meanings defined in the
Contract.
a. Status. WCI 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. WCI has full legal right, power and authority to to
assume the Contract and satisfy its Performance Obligations. As of the Effective Date of
this Consent, the Contract will be duly assigned to WCI and constitutes a legal, valid and
binding obligation of WCI enforceable against WCI in accordance with its terms.
c. No conflicts. Neither the performance by WCI of its Performance Obligations, nor the
fulfillment by WCI of the terms and conditions of the Contract:
1. Conflicts with, violates or results in a breach of any Applicable Law:
2. Conflicts with, violated 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 WCl or any of
its Affiliates is a party or by which WCI or any of its Affiliates'
properties or assets are bound, or constitutes a default thereunder; or
3. Will result in the creation or imposition of any lien, charge or
encumbrance of any nature whatsoever upon any of the properties
or assets of WCI.
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
assignment of the Contract to WCI, except that required under the Contract and those that
have been fully obtained from its Board of Directors or other governing body.
e. No litigation. There is no action, suit, proceeding or investigation, at Iaw or in equity,
before or by any court or governmental authority, commission, Governing Body, agency
or instrumentality pending or, to the best of WCI's knowledge, threatened, by or against
WCI wherein an unfavorable decision, ruling or finding, in any single case or in the
aggregate, would adversely affect the performance by WCI of its obligations under the
Contract or in connection with the transactions contemplated by the Contract, or which, in
any way, would adversely affect the validity or enforceability of the Contract or any other
agreement or instrument entered into by WCI in connection with the transactions
contemplated by the Contract. or which, in any way, would adversely affect the validity or
enforceability of the Contract or any other agreement or instrument entered into by WCI
in connection with the transactions contemplated by the 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 KIB by WCI.
f. Due Diligence. WCI has made an independent investigation, examination and research
satisfactory to it of the conditions and circumstances surrounding the Contract and best
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. WCI agrees that it will make no
estimates, statements or interpretations mac
that proves to be in any respect erroneous.
claims against KIB based on any good faith
by any officer, employee or agent of KIB
g. Compliance with Applicable Law. WCI 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 the Contract.
,.6
EXHIBIT A:
Exclusive Service Contract for Residential and Commercial Refuse Collection and
Transportation to KID Landfill between Kodiak Island Borough and Alaska Pacific
Environmental Service, LLC, effective 2010 as amended
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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 of Contract.............................................................................................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
ATTACHMENT 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
COLLECTION SERVICES CONTRACT I 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 Contractor Service Fee................................................................................23
13.02 Inclusiveness................................................................................................ 24
13.03 Adjustment of Contractor Service Fee.......................................................24
13.038 Tonnage Adjustment Amount.....................................................................28
COLLECTION SERVICES CONTRACT 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 I 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
19.02 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
20.04
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
COLLECTION SERVICES CONTRACT I Kodiak Island Borough, AK
ATTACHMENT 4 REFUSE COLLECTION AND TRANSPORTATION TO KIB
LANDFILL...............................................................................................55
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
4-14.01 Compensatory damages...................................................................59
ATTACHMENT 5 FUTURE PROGRAM CONSIDERATION: RECYCLABLES
COLLECTION AND PROCESSING..............................................................................59
5-5.01 KIB Recyclables Program Specifications...................................................59
ATTACHMENT 6 DROP BOX COLLECTION AND TRANSPORTATION ................ 59
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......................................................60
ATTACHMENT 7 GENERAL COLLECTION PERFORMANCE OBLIGATIONS AND
STANDARDS...............................................................................................60
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
6 COLLECTION SERVICES CONTRACT Kodiak Island Borough, AK
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 ATTACHMENT...........................................69
8-1.01 Transportation to KIB Landfill.....................................................................69
8-1.02 Limited Disposal Defense and Indemnification.........................................69
ATTACHMENT 13.01 CONTRACTOR SERVICE FEE SCHEDULE .........................71
ATTACHMENT 20.01 DEFINITIONS........................................................................74
APPENDIX: CONTRACTOR INFORMATION AND DOCUMENTATION ................. 92
7 COLLECTION SERVICES CONTRACT I Kodiak Island Borough, AK
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.
"Day" means a calendar day.
"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.
KIB 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 KIB minimize its potential pollution liabilities through performance
specifications, such as unpermitted waste screening protocols.
KIB has provided customer billing and bill collection services for solid waste services. This
Contract reduces KIB'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 KIB 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, KIB 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, KIB and Contractor agree as follows:
ARTICLE 1: EXCLUSIVE CONTRACT
1.01 Exclusive Right and Privilege to Provide Contract Services. KIB grants Contractor
the exclusive right and privilege together with the obligation to provide Contract Service in the
8 COLLECTION SERVICES CON'CRACT Kodiak Island Borough, AK
Contract Service Area conditioned on Contractor being at all times ready, willing, and able to
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 KIB. 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 expiration of Term. The Term commences on the
Contract Commencement Date, June 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. KIB 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,
KIB, 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 l +2, 1+1+1; 2+1).
3.02 Survival of Certain Provisions. The following provisions of this Contract will survive
the Term:
(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 KIB a copy of Records, or allowing KIB to copy, inspect and audit
Records, including:
• certificates of Insurance or other evidence of Insurance coverage (such cis
endorsements extending coverage of claims made insurance policies), and
• Contract Service Asset Inventory and Contract Service Asset Documentation (for
example, with respect to Refitse Carts that KIB has the right to acquire).
COLLECTION SERVICES CONTRACT I Kodiak Island Borough, AK
(5) all Contractor's Performance Obligations and KIB's rights with respect to Reports;
including submitting final Reports,
(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 KIB 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.
ARTICLES: 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.
1'0 COLLECTION SERVICES CONTRACT 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 PERFORNIANCE OBLIGATIONS
9.01 Compliance with Law.
a. Compliance. Contractor wilt 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 KIB remains in effect after
the expiration or termination of this Contract, Contractor nevertheless may not operate within
KIB for collection of Solid Waste formerly collected under this Contract. THIS
PROHIBITION WILL SURVIVE THE TERMINATION OF THIS CONTRACT and KIB
may seek specific enforcement of this prohibition under Section 14.04. Promptly upon KIB
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 KIB's administration and specific enforcement of
this Contract. Those references may not be construed to constitute lack of Contractor obligation
to comply with other provisions or requirements of Applicable Law that are not specifically
referred to or cited in this Contract. If any provision of this Contract is more stringent than
Applicable Law, Contractor will comply with that provision.
C. Fines and penalties. Contractor is solely liable for all tines 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 KIB 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
11 COLLECTION SERVICES CONTRACT 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, KIB may enforce
Contractor's obligations under Applicable Law (including the KIB Code) in the same manner as
it may enforce Contractor's other contractual obligations under this Contract (including specific
performance and as Breaches subject to cure 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
eterminingwhether or not Contractor is in noncompliance with those provisions, the standard of proof
applicable to breach of contract will apply. KIB has no obligation to enforce any Applicable
Law.
2. Violation. 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
KIB is authorized to make all necessary and reasonable rules and regulations regarding all
aspects of MSW Management Services to protect the public's health, safety, and welfare. No
provision in this Contract may be deemed to limit KIB's police power to take any action that KLB
deems necessary or appropriate in its sole discretion to protect the public's safety, health, and
welfare.
f. Compliance with KIB Code. Contractor must comply with the K[B Code, subject to
possible adjustments in Contractor Service Fee in the event of Changes in Law. Contractor
warrants and represents that it is fully acquainted with the provisions of KIB Code. Contractor
must pay Liquidated Damages with respect to non-compliance with specified provisions of the
KIB Code, including failure to remedy any Violation of KIB Code within Five 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.
COLLECTION SERVICES CONTRACT I Kodiak Island Borough, AK
9.03 Responsiveness to KIB.
a. Phone calls. Contractor will return telephone calls from KIB to the individual who made
that call no later than the next KIB Business Day.
b. Meetings. Within one week of oral or written direction by KIB, Contractor will meet
with KIB during KIB Office Hours at the offices directed by KIB.
C. E-mails. Contractor will respond to all e-mails from KIB 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 KIB.
ARTICLE 10: RECORDS AND REPORTING
Contractor acknowledges KIB'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 KIB'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 KIB, 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. KIB Inspection and Audit.
1. Location.
(i) KIB Offices. Upon 3 Service Days advance telephonic or written request by KIB,
Contractor will use Reasonable Business Efforts to provide copies of Records to KIB and its
designees for inspection, review or audit at KIB's offices. For example, Contractor might email
or physically mail documents from a site outside KIB.
COLLECTION SERVICES CONTRACT KKodiakIsland Borough, AK
(ii) Contractor Office or Service office within KIB. [f Contractor cannot provide KIB with
copies of Records within the notice period provided under subsection c.L(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 KIB) during Contractor Office FIours.
2. Scope of inspection or audit: KIB may do any or all of the following:
(i) inspect and review Records at any time following notice under subsection c. L(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 KIB 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 KIB no later than 45 days
after the end of the Contract Year (or at direction of KIB, Calendar Year), for the preceding
Contract Year (or Calendar Year).
b. Additional Information. Promptly upon KIB 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 KIB (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 KIB with a copy of those Records within
10 days of KIB request.
1 COLLECTION SERVICES CONTRACT Kodiak Island Borough, AK
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 Linder other contracts or in other
locations, as if Contractor were an independent entity providing service only to KIB.
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. KIB may require
Contractor to secure and maintain larger amounts or types of coverage if it compensates
Contractor the Direct Costs of the additional premium for that coverage under Article 12.
Contractor may use a combination of primary and excess insurance coverage to satisfy these
requirements. KIB may reduce insurance requirements if it determines that the reduction is in
KIB's best interest. Each liability policy must provide contractual liability coverage for
Contractor's Indemnities, including any necessary endorsement, schedule or other
documentation.
I. 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 Por bodily
injury, property damage, and cleanup costs (including expenses required by
environmental laws or incurred by federal, state, KIB 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, Rimes, 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
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: $1 million
Disease - policy limit: $1 million
Disease - each employee: $1 million
b. Insurer qualifications. Contractor will secure insurance provided by an insurer meeting
the following qualifications:
(1) is acceptable to KIB,
(2) is an admitted company in State,
(3) has a size category of Vfl 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 COls, endorsements, schedules and
other evidence of insurance coverage requested by and acceptable to at KIB at the following
times:
(1) on or before the Contract Commencement Date,
(2) with submission of each Annual Report,
(3) promptly upon renewal of policies, and
(4) within 10 days of KIB's request.
I:6 COLLECTION SERVICES CONTRACT j 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 KIB request, Contractor will reduce any self-insured retention as it
applies to KIB or provide a letter of credit, certificate of deposit or other financial
assurance acceptable to KIB guaranteeing payment of all retained losses and related costs
and expenses related to investigations, claims administrations, and legal defense. The
letter of credit or certificate of deposit must be provided by a bank satisfactory to KIB;
and
(e) Claims made: If KIB 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 KIB request, Contractor must provide KIB with evidence of that
coverage. THIS PROVISION SURVIVES THE TERMINATION OF THIS
CONTRACT.
t7 COLLECTION SERVICES CONTRACT j 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 KIB and its officers and employees;
(d) excluding any "insured v. insured" clause in a liability policy with respect to KIB as an
additional insured; and
(e) providing dedicated limits under a liability policy in favor of KIB 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. Signature verification. At KIB's request, Contractor must provide
documentation verifying that the individual signing or countersigning the certificates, policies,
endorsements, or other evidence of coverage of Contractor and any Subcontractor is authorized
to do so and identifies his or her company affiliation and title. KIB may require complete,
certified copies of Contractor's insurance policies at 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 KIB of the claim.
f. Contractor accounting. Contractor will institute a comprehensive accounting system
satisfactory to KIB to monitor all insurance requirements under this Contract, including those of
each of its Subcontractors.
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 KIB's Related Parties from and against all Liabilities and Losses paid, incurred or
suffered by, or asserted against, KIB or KIB's Related Parties arising out of or in connection with
this Contract, including in connection with any alleged failure of KIB or KIB's Related Parties to
enforce provisions of this Contract or of Applicable Law.
EMCOLLEC"CION SERVICES CONTRACT J 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
TER-MINATION 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 KIB in form satisfactory to KIB 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 KIB 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) KIB may draw on the Letter of Credit, in one or more drawings, in any of the following
events as evidenced to the satisfaction of KIB:
(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 KIB 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 KIB in KIB's sole discretion, and
(iv) Contractor does not owe KIB any money.
COLLECTION SERVICES CONTRACT I 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 KIB), must be a legal, valid and binding Guaranty
by that Affiliate as Guarantor, satisfactory to KIB.
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 KIB 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 KIB Direction. KIB 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
KIB Business Days of receiving KIB's request for proposal (or a longer period that KIB 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.
20 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 KIB.
Contractor will include documentation supporting its proposal satisfactory to KIB.
b. Offer. Contractor's proposal will be deemed Contractor's offer to KIB to implement the
directed or proposed change. Contractor's proposal will remain binding for at least 30 days from
the date submitted to KIB.
C. Review.
(1) Response/Comments. Within 20 KIB Business Days of receiving Contractor's
proposal, KIB may review, approve, or disapprove the proposal and comment on it.
If KIB does not respond within that time, its approval will be deemed denied. If
Contractor's proposal includes a request for change in the Contractor Service Fee that
must be approved by the Assembly, KIB may review, approve or disapprove the
proposal within 45 days.
(2) Acceptance of Comments. Contractor will accept or reject any comments within 15
KIB Business Days of receiving them. If Contractor accepts the comments, KIB will
prepare amendments to this Contract that will implement the proposal, satisfactory to
Contractor.
(3) Reieetion of Comments / Negotiations. If Contractor rejects KIB's comments, the
Parties will negotiate in good faith for a period of at least 15 KIB Business Days
following Contractor's receipt of KIB comments.
COLLECTION SERVICES CONTRACT I Kodiak Island Borough, AK
d. Failure to agree.
(l) 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 ... Charges in Low. 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.
12.03 Independent Expert
a. Selection
(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.(I). 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.
a. Amounts paid by Customers for subscribed Service. Contractor may charge
Contractor Service Fees to Customers as compensation for providing Contract Services in
compliance with all Performance Obligations. The Contractor Service Fee will not
change except under Section 13.03. The Tonnage Adjustment Amount will be added to
or subtracted from the Contractor Service Fee under Section I3.03B.
b. Amounts paid by KIB for Senior Discount. On each July I (or other day designated by
KIB but no more than annually, such as quarterly) KIB will pay Contractor the aggregate
amount of Senior Discounts that Contractor gave Customers during the period beginning
April I of the prior year and ending March 31 of that year (or period commensurate with
another payment date designated by KIB).
COLLECTION SERVICES CONTRACT I Kodiak Island Borough, AK
13.02 Inclusiveness. The Contractor Service Fee includes all Contractor's direct costs, indirect
costs, plus profit or return of investment for providing Contract Services, including the
following:
(1) labor (including wages and fringe benefits), including drivers, Customer service
personnel, supervisors, and administrators,
(2) 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,
(6) taxes,
(7) securing and maintaining Permits and complying with Applicable Law,
(8) fines and penalties for violation of Permits or Applicable Law,
(9) handling Unpermitted Waste discovered in Solid Waste, including disposal thereof as
required by Applicable Law,
(10) negligence or misconduct,
(1 l) 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 KIB.
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 KIB at least 60 days in advance of
implementation, or
(ii) upon direction of KIB, in its sole discretion.
(1) Annual Adjustment. On July I in the second full Calendar Year of the Term and
each following July I, 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
2'a COLLECTION SERVICES CONTRACT I Kodiak Island Borough, AK
(02) the Weighted Adjustment Percentage times that Contractor Service Fee.
Between April I and April 15 of each Contract Year, Contractor will prepare a statement setting
forth Contractor's detailed calculation of Contractors 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 KIB, but is not binding on KIB. KIB may make
corrections or adjustments to that statement. Subsection d contains a sample adjustment
calculation.
(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 CPL 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 I of the previous year and ending March 31 of
the current year, no greater than 5%, as confirmed by KIB.
"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 PPL 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 3I 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 KIB 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 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.
COLLECTION SERVICES CONTRACT I Kodiak Island Borough, AK
The following table details the rate components identified by the Contractor of each for the
proposed levels of service for cart collection:
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
2. Adjustment 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.
(1) Calculations. Interim calculations less than 0.5 must be rounded down and 0.5 or
greater, up.
(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.
COLLECTION SERVICES CONTRACT I Kodiak Island Borough, AK
d. Sample calculations of annual adjustments in Contractor Service Fee.
1. Annual adiustment of OPERATIONS PORTION due to Change in CPI.
Calculation of % change in
April 1, 2007 - March 31, 2008
189.5
April 1, 2008 - March 31, 2009
191.7
CPI (12 -month average, not
month-to-month)
$5.00
Percent change
3.4%
Percent Change
2.2% (not more than 5%)
Portion of % change
75%
1.65%
2. Annual adiustment of FUEL PORTION Due to Change in PPI.
Calculation of change in PPI
April 1, 2007 - March 31, 2008
262.6
(12 -month average, not
April 1, 2008 -March 31, 2009
285.6
month-to-month)
$5.00
Percent change
3.4%
Percent Change
23.0%
Portion of % change
75%
17.25%
3. Anv changes in Tinning Fees.
Tipping fee charges on Contract
$150.00
Commencement Date or last prior adjustment
Rate
Year
Costs
date
Tipping fee charges on adjustment date
$5.00
Percent change
3.4%
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 I Kodiak Island Borough, AK
Rate Component
Adjustment Base Year
Method Costs
Rate
Adjustments
Rate
Year
Costs
Cost Components
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
$ I0.07
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
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 I Kodiak Island Borough, AK
13.03B 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 I 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 KUB 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 KUB charges
for disposal of Solid Waste at the K[B 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 Year: the same as the Reimbursement
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 to equal the
actual Disposed Tonnage of the prior Year.
"Base Tons" means the following
L 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 I Kodiak [stand Borough, AK
Between April I 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. Subseclion d contains a sample acjus[ment
calculalion.
b. Rounding.
(1) Calculations. Interim calculations less than 0.5 must be rounded down and 0.5 or
greater, up.
(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.
d. Sample calculations of annual adjustments in Adjusted Tonnage Amount.
Computations
Excess Tonnage
Shortfall Tonnage
(1) Base Tons:
i. assumed 4,004 in first year,
Excess Tonnage
Shortfall Tonnage
ii. replaced by actual in each following
(over 4,004 Tons/Year)
(less than 4,004 Tons/Year)
year
(2) actual Disposed Tons
5.004
3,004
(3) Disposed "Cons— Base Tons
+ 1,000
(1,000)
(4) MULTIPLIED BY:
$150X1000=$150,000
$150X(1000)=($150,000)
Tipping Fee/Ton
(5) DIVIDED BY:
Total # Residential Customers in KIB
2,884
1 884
(including City Carts, Residential
Dum sters and Roll -offs)
(6) ANNUAL increase / decrease -per
Customer (Past Reimbursement
+$52.01
($52.01)
Amount)
(7) MONTHLY increase / decrease -
per Customer (item 6 divided by 12
+$4.33
($4.33)
months (Past Reimbursement
Amount )
(8) Annual increase / decrease per
Customer (Future Adjustment
+$4.33
($4.33)
Amount) — same as item 7)
2A' COLLECTION SERVICES CONTRACT Kodiak Island Borough, AK
(9) monthly Tonnage Adjustment
Amount
$4.33 + $4.33 =$8.66
($4.33) — (54.33)= ($8.66)
(10) total adjusted monthly Contractor
Service Fee:
(64 gallon cart a $34.09/month +/
$42.75
525.43
$8.33 monthly Tonnage Adjustment
Fee)
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 KIB 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 KIB 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. [f he or she determines that KIB should not have assessed all or a portion of the
Compensatory Damages or Liquidated Damages, KIB 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) KIB 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 KIB and Customers.
(2) In awarding this Contract to Contractor, KIB considered and relied on
Contractor's municipal references, experience, qualifications, and reputation as to
service quality, and Contractor's Breach represents a loss of bargain to KIB.
(3) Quantified standards of performance are necessary and appropriate to ensure
consistent and reliable Contract Service, and if Contractor fails to meet
Performance Obligations, KIB will suffer damages in subjective ways and in
COLLECTION SERVICES CONTRACT I 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.
(5) 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.
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 KIB 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,
ALASK a oliti l ubdj 's'
Vj BY:
Name: Rick L. Giff
Title: Manager
Dated: 7,(/ 2v
ALASKA PACIFIC ENVIRONMENTAL
SERVICE, LLC
By.
Name: Jeff Riley
Title: Chief Operation fficer
�Dated��tJ l� 2,l o
s to
By - --
�j, Nova a ./avier
C
Borough Clerk
Q4
31 COLLECTION SERVICES CONTRACT j Kodiak Island Borough,AK
In the following table, Sections listed under SECTION column describe Performance Obligations
(including timeliness) to which the liquidated damages apply. Language listed under BREACH
cohunn 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 KIB
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 clay of the scheduled pickup and each following day until
corrected.
SECTION
BREACH
LIQUIDATED
DAMAGE
9.03
failure to timely respond to KIB call in emergency
$500 for each 6 hours of
failure
9.03
failure to return KIB calls
$500 for each breach
over 1 time per month
9.03
failure to meet with KIB
$500 for each breach
over l time per Contract
Year
9.03
failure to remedy any Violation of KIB Code
$250 per instance
within 5 days notice of Violation
9.03
conviction of Violation under KIB Code
$2,500 per instance
10.02
failure to submit complete Report to KIB
$500 per failure / per
day until complete
report delivered
Records,
failure to timely submit any documentation to KIB
$100 per failure / per
Reports,
in form and at time required
document / per day
proposals,
Etc.
13.01
Contractor charging any Customer more than the
$250 per Contractor /
applicable Customer Special Service Surcharge
each Customer
failure to secure satisfaction of KIB, obtain any
$250 per failure / per
consent or approval of KIB, or to give Notice to
day until approval
KIB when required
obtained or Contractor
ceases action, retracts
misinformation or
otherwise remedies
failure to satisfaction of
KIB
3- 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 KIB (such as a recyclables processing facility in connection with any recyclables
collection program that may be established), then in addition to assessing Liquidated Damages,
KIB may in its sole discretion assess the following Compensatory Damages, and Contractor will
pay KIB the following Compensatory Damages:
(l) 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:
(1) Uncured Breach: Contractor Breaches this Contract; and
(i) KIB 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.
If Contractor believes that it cannot cure the Breach within 20 days, Contractor
A. may Notify KIB within 5 days of receiving KIB'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 KIB 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 KIB, or
E. exercise any remedies under this Contract, including terminating this
Contract at the end of the 20 day period.
(2) Repeated Breach. Contractor repeatedly or habitually Breaches this Contract, as
determined in the sole discretion of KIB.
(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; KIB does not have to wait until the
end of the 12 -month period to declare this Default, or
343 COLLECTION SERVICES CONTRACT I Kodiak Island Borough, AK
(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 KB'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 Pavment Obligation. Contractor fails to pay
any Contractor Payment Obligation within 15 days of the date it is due and
payable.
(7) 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 KIB to perform Contract Services. Contractor fails to timely
allow KIB to exercise any of KB'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 I Kodiak Island Borough, AK
(3) Insolvency, bankruptev, liquidation.
(i) 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, anless
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 Linder 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
G. 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.
35 COLLECTION SERVICES CON"TRACT 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 KIB in
connection with or as a material inducement to entering into this Contract or any
future amendment to this Contract, which representation or failed disclosure is
false or misleading in any material respect when made.
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 14.02al and 2 (Uncured Breach; Repeated Breach), except to the extent
that a Breach constitutes a Default otherwise itemized in Section 14.020-8 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 Def hitt ander Section 14.036(!), that Breach is not excused by an
Unconn-ollable Circumstance.
b. Contractor Notice of Uncontrollable Circumstance. Contractor will give immediate
Notice of an Uncontrollable Circumstance to KIB, 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.
(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, KIB 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, KIB 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 I 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 15.01 a;
(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 KIB 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 KIB,
(ii) draft this Contract and related procurement documents,
(iii) solicit comments on this Contract and procurement documents from KIB (and
KIB 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
COLLECTION SERVICES CONTRACT I 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. KIB may collect Contractor Payment Obligations
due and owing by Contractor to KIB by any or all of the following means:
(1) demanding payment from Contractor or Guarantor,
(2) drawing on the Letter of Credit,
(3) submitting claims as an additional insured under Insurance policies or under
contractual liability provisions of Insurance policies, and
(4) directing Contractor to offset Contractor Payment Obligation from Contractor Service
Fees that Contractor received from Customers to remit them to KIB.
14.05 Additional Compensatory Damages. Without limiting KIB's rights to seek
Compensatory Damages under Section 14.01 or law. KB may seek the following compensatory
damages:
(1) Amounts equal to any Contractor Payment Obligations or other amounts that
Contractor has previously paid to KIB but are subsequently recovered from KB by a
trustee in bankruptcy as preferential payments or otherwise;
(2) If KB terminates this Contract for Default, KIB's Reimbursement Costs to provide or
re -procure MSW Management Services in lieu of Contract Services; and
(3) If KB terminates this Contract for Default, KIB's projected Direct Costs of replacing
MSW Management Services in excess of Contractor Service Compensation for the
balance of the Term remaining if this Contract had not been terminated, as based on
service fees under replacement agreements for those MSW Management Services.
THIS SECTION WILL SURVIVE THE TERMINATION OF THIS CONTRACT FOR 180
DAYS OR OTHER PREFERENCE PERIOD PROVIDED UNDER APPLICABLE LAW WITH
RESPECT TO BANKRUPTCY OR INSOLVENCY. KB may draw upon the Letter of Credit,
Guaranty or any other available Performance Assurance to pay compensatory damages.
COLLECTION SERVICES CONTRACT I Kodiak Island Borough, AK
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 reaard 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 KIB as a consequence of a Breach.
14.09 KIB Right to Perform.
a. Events. KIB may perform, or providing for the performance of, any or all Performance
Obligations (such as Collection or nrnnsportation and delivery of Refuse to K/6 Landfill) upon
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
3. COLLECTION SERVICES CONTRACT I Kodiak Island Borough, AK
it to KIB Landfill (or other KIB-approved Facility) for a period of 48 hours
after the Collection or acceptance was required under this Contract, and
(ii) KIB determines in its sole discretion that there is a danger to the public health,
safety or welfare; or
(2) Suspension or termination of Contract. KIB 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. KIB 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. KIB may give Contractor 24 hour oral notice that K[B is exercising any or all of
KIB's rights under this Section. The oral notice will be effective immediately, but to remain
effective, within another 24 hours KIB must confirm that oral notice with a Notice (which is in
writing).
d. Service Assets.
(1) Possessory interest. KIB 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
KIB to transfer possessory interest in those Contract Service Assets to KIB. Customers'
possession of Carts will be deemed possession by KIB if necessary to exercise this right.
KIB 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 KIB's
possession.
(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, KIB will do the following:
(i) maintain those Contract Service Assets in the same condition as they were in
when Contractor transferred their possession to KIB; and
COLLECTION SERVICES CONTRACT I Kodiak Island Borough, AK
(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 KIB the right to possession and use of
Contract Service Assets, Contractor declares as follows:
(i) KIB or KIB'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 KIB
and its designees are protected and covered by liability Insurance, including requesting and
executing endorsements to liability policies. KIB may secure endorsements at its cost. KIB 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 KIB. By
executing this Contract, Contractor authorizes its insurance broker to cooperate with and respond
to requests from KIB. Contractor may not rescind this authorization without KIB consent.
4. Contract Service Asset Documentation. Each Contract Service Asset
Document must allow KIB to assume Contractor's obligations and to continue use of those
Contract Service Assets in performing MSW Management Services.
e. Contractor's Personnel. KIB 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 KIB 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 KIB.
E Records. At KIB request, Contractor will immediately provide KIB or its designees with
immediate access to Contractor Office at any time KIB 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 cis Customer Service Subscription data).
41 COLLECTION SERVICES CONTRACT I Kodiak Island Borough, AK
g. Contractor Payment or KIB 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 KIB 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;
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 KIB with a substitute Guarantor or
alternative financial credit support satisfactory to KIB.
b. Suspension Events. Upon the occurrence of any Termination Event, KIB 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 KIB
that Contractor can once again fully perform Contract Services. If Contractor so demonstrates to
satisfaction of KIB in its sole discretion, KIB's right to suspend or terminate this Contract will
cease and Contractor may resume providing Contract Services. If Contractor does not so
demonstrate, KIB may terminate this Contract and exercise its additional rights and remedies.
C. Notice. KIB will give Contractor a Notice of termination or suspension effective at the
following times:
(1) immediately or upon other period stated by KIB with respect to the following
Defaults 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
(2) upon Contractor's receipt of Notice with respect to any other Default, unless KIB
specifies an alternative date in the Notice;
(3) a date KIB 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, Contraclor would be obligated to fully perforin its
other obligations :order this Contract (such ars Collection of Refuse).
15.02 Criminal Activity
a. Notice. Contractor will immediately give Notice to KIB of either of the following with
respect to Contractor or any Contract Manager (except for the Contract Manager in a Position of
Influence):
(l) conviction ora Criminal Activity ("conviction") or
(2) plea of "guilty", nolo contendere" or "no contest" to a Criminal Activity ("plea")
Contractor will promptly give Notice to KIB of any of those convictions or pleas with respect to
the Contractor Manager in a Position of Influence.
COLLECTION SERVICES CONTRACT I 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 Manaeers
to substantial liability for breach of any labor agreement entered into before the
Contract Commencement Date, and
(2) refrain from employing or appointing that individual or individuals responsible for
the Criminal Activity from any other Position of Influence.
C. KIB remedies. 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
KIB (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 KIB 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 KIB
with respect to Contractor's experience, expertise and qualifications to provide Contract
Services, and that Contractor's experience, expertise and qualifications were material
considerations of KIB in entering into this Contract with Contractor.
b. KCB consent. Without KIB consent, given in KIB'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 K[B's consent rights by securing Goods or Services from a
Subcontractor.
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
KB consent, given in KIB's sole discretion. For purposes of this Performance Obligation and
KIB right, the definition of "Transfer", the "Contractor" is deemed to include "Contractor's
Operations.
C. Contractor request. Without obligating KIB to give consent. Contactor will
demonstrate to KB's satisfaction that the proposed transferee has the operational and financial
ability to satisfy Performance Obligations. KIB is not obligated to consider any proposed
Transfer by Contractor if Contractor is in Breach at any time during KIB's consideration.
d. Payment of KIB's Transfer Costs.
(I) Transfer Deposit. Contractor must make any request for KIB's consent to a Transfer
in the manner prescribed by KIB. Contractor must pay KIB the Transfer Deposit
before KIB will consider Contractor's request. "Transfer Deposit" means lesser of
the following refundable amounts:
(i) $1,500
(ii) KIB's anticipated Transfer Costs.
(2) Additional Transfer Costs. Within 30 days of KB's request, Contractor will further
pay KIB's additional Transfer Costs in excess of the Transfer Deposit, whether or not
that KIB approves the Transfer. "Transfer Costs" means the following KIB'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 KIB's request,
Contractor will pay KB's Reimbursement Costs for fees and investigation costs as
KIB deems necessary to enjoin the Transfer or to otherwise enforce this Section
e. Novation. If KB consents to Transfer of this Contract, upon request of the transferee,
KB 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 I 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 KIB and not KIB's
Related Party or ajoint venturer with KIB.
(2) No employee or agent of Contractor is deemed to be KIB'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 KIB 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 KIB by the Contract Commencement Date.
17.05 Actions of KIB in Its Governmental Capacity. Nothing in this Contract may be
interpreted as limiting the rights and obligations of KIB in its governmental or regulatory
capacity.
17.06 Contractor's Obligations Performed at Its Sole Expense. Contractor wilt perform
Contract Services solely for the compensation expressly provided for in this Contract.
4 COLLECTION SERVICES CONTRACT Kodiak Island Borough, AK
17.07 Parties Representatives.
a. KIB
(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.
(3) Delegation. By authorizing the execution of this Contract, KIB delegates to KIB
Representative the authority to exercise KIB's rights, remedies and options under
this Contract and administer this Contract, except with respect to the following,
which must be approved by the KIB Governing Body:
(i) extending the Term for an additional year or more,
(ii) suspending or terminating this Contract,
(iii) approving or disapproving Transfer of this Contract,
(iv) amending this Contract, including the Contractor Service Fee due to changes in
operations under Section 13.03al but not annual adjustments under I3.03a1,
(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
tinder Applicable Law,
(3) 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 KIB Name. Contractor will not do business as or use a corporate, partnership,
venture or other formal name, containing the name of any KIB or implying government
ownership.
17.10 Subcontractors.
a. Subcontracts exceeding 550,000. Contractor will not engage any Subcontractor in an
amount exceeding $50,000 for any individual Subcontractor without KIB's prior approval of the
Subcontract and Subcontractor. Any Subcontract entered into without KIB's prior approval is
void. Contractor will identify approved Subcontractors in Contractor Documentation.
b. Contractor responsibility. Contractor is solely responsible for directing the work of
Subcontractors and paying Subcontractors' compensation.
49 COLLECTION SERVICES CONT[uACT Kodiak Island Borough, AK
C. Removal. KIB 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'sjudgment, 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. KIB Governing Body authorization and direction / Contractor consent.
Amendments to Contract rights, remedies and options that are not delegated to the KIB
Representative under subsection b will be effective upon completion of the following actions:
(1) authorization and direction of KIB Governing Body,
(2) consent of the Contractor, and
(3) due execution by the Parties of an amendment reflecting those changes.
b. KIB Representative Consent / Contractor Representative Consent. All other
Amendments to this Contract will be effective upon completion of the following:
(1) consent of KIB Representative (except for Contractor's amendments to Contractor
Documentation that do not require KIB 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 KIB to Contractor of a missed pick-up or a Customer problem or complaint may be
given to Contractor orally by telephone to Contractor Representative or other Contractor
personnel responsible for taking complaints from KIB or the public.
Parties may change their address upon Notice to the other Party.
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.
COLLECTION SERVICES CONTRACT I 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,
AR"fICLE, 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 test 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 I 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 ailed
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 KIB direction to a Solid Waste Management
Facility is ruled unconstitutional, illegal, invalid, non-binding or unenforceable by any court of
competentjurisdiction, then KIB 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 KIB Landfill,
(6) Contractor obligation to any other type of Solid Waste (such as recyclables) to any
other Solid Waste Management facility as directed by KIB.
COLLECTION SERVICES CONTRACT J 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 KIB solely
because KIB 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 NIS W 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. KIB. KIB warrants that its officers listed below have been duly authorized to execute
this Contract on its behalf.
b. Contractor. Contractor warrants that the individuals listed below have been duty
authorized to execute this Contract on behalf of Contractor.
KODIAK ISLAND BOROUGH
Alaska. a political subdivision
wA,By:
Name: Rick L. Gi
Title: Manager
Dated: 7 / o tl
KIB P
Nam : Nova M aviec. l Ol
Dated: %—/ f -c I //
APPROVED AS TO FO
4s �r
KIB COUNSEL
Name:
Dated:
ALASKA PACIFIC ENVIRONMENTAL
SERVICE, LLC
By
Name: JeE Riley
Title: Chief Operations Officer
Dated: o L 2 S� 1.0
Z
zz CliAilaSEc.O'uQ,�i`ELL
STATE OF ALASKA
P . CamT!ssion Expires April 3, 2013
52 COLLECTION SERVICES CONTRACT I 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 K[B 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 and
53 COLLECTION SERVICES CONTRACT Kodiak Island Borough, AK
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 KIB 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 KIB.
ATTACHMENT 2.02: KIB'S REPRESENTATIONS AND WARRANTIES.
a. Status. KIB is a political subdivision of the State, duly organized and valid existing under
the Constitution and laws of the State.
b. Authority and Authorization. KIB has full legal right, power and authority to execute.
deliver, and perform its obligations under this Contract. "Chis Contract has been duly signed and
delivered by KIB and constitutes a legal, valid and binding obligation of KIB enforceable against
KIB in accordance with its terms.
c. No Warranty Regarding Waste Characterization or Volume. KIB makes no warranties
with respect to the Solid Waste characterization or volume. KIB 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.
54 COLLECTION SERVICES CONTRACT Kodiak Island Borough. AK
ATTACHMENT 4: REFUSE COLLECTION AND TRANSPORTATION TO KIB
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 Corts to the Cart manufacturer of Corts for
recycling, or deliver clumpsters for metal solvage..
b. Contractor Transfer of Container Ownership to KIB. In consideration of the
privileges granted under this Contract and for Contractor Service Fees previously received during
the Term, within 5 KIB Business Days of KIB direction, Contractor will transfer to KIB
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 KIB under this Contract, or
(2) the expiration of this Contract.
Upon KIB request, Contractor will promptly provide KIB 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 dOCLmlentation evidencing transfer of ownership of any or all Refuse
Containers to KIB.
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 Collection in Carts at Residential / Optional Commercial or Multifamily
Premises.
(1) Residential. Beginning on the Collection Commencement Date, Contractor will
Collect all Refuse discarded in Carts at Residential Premises located within the City
55 COLLECTION SERVICES CONTRACT Kodiak Island Borough, AK
of Kodiak (or other area as designated by KIB in Notice to Contractor) weekly, on
the same Regularly Scheduled Collection Day.
(2) Commercial or Multifamily Collection. Beginning on the Collection
Commencement Date, at the request of the owner or occupant of a Commercial or
Multi -family Premise, Contractor will Collect all Refuse discarded in Carts at that
Commercial or Multifamily Premise 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.
(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.
a. Residential, Commercial or Multifamily Collection.
Beginning on the Collection Commencement Date, Contractor will provide all Customers
whose Residential Premises are located outside the City of Kodiak (except Customers for
56 COLLECTION SERVICES CONTRACT Kodiak [stand Borough, AK
whom Contractor provides Roll -offs under 6-6.02) with Residential Roll Offs or
Dumpsters. Contractor will Collect Refuse discarded in those Residential Roll Offs or
Dumpsters weekly, on the same Regularly Scheduled Collection Day(s) or other days
agreed to between Contractor and Customer.
Beginning on the residential, 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 Collection Day(s).
b. Dumpster Options
(1) Default Service at Commercial and Multi -family Premises: 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 alternative Containers:
A. a different capacity 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 safety 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.
(2) Service at Residential Premises outside the City: Contractor will provide
Residential Customers who receive Collection Service in Roll Off Container or
Dumpsters with Roll Off Containers or Dumpsters having capacity determined by
Contractor in its sole discretion, sufficient to contain Refuse discarded by
Residential Customers whose Residential Premises are outside the City of Kodiak.
for the charge listed on the Service Fee Schedule (Residential Roll-off/Dumpster).
C. Larger / smaller Dumpsters, more / less frequent Collection. At KIB's request,
Contractor will provide Roll Off Containers or Dumpsters in alternative number and Collection
frequency options 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,
COLLECTION SERVICES CONTRACT I Kodiak Island Borough, AK
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 / KIB request. When Collecting any Refuse, Contractor's drivers must
immediately report to Contractor any Bulky Item he or she observes Discarded at a Dempster
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 34 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 KCB, 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 KIB, the State, and federal officials in filing
information related to a regional, state or federal declared state of emergency or disaster as to
which Contractor has provided services under this 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 KIB 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
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.
58 COLLECC[ON SERVICES CONTRACT I Kodiak Island Borough, AK
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 KIB Recyclables Program Specifications. Contractor acknowledges that as of the
Contract Commencement Date KIB has entered into an Agreement for Recycling Services with
Threshold Services, Inc. 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. KIB may prescribe the scope of recycling services, performance
specifications and performance standards. KIB will request Contractor to submit a proposal to
implement KIB's recycling program under Article 12 before requesting any Person other than
Threshold Services Inc. to submit a proposal or negotiating with any other Person. However, if
KIB and Contractor do not reach agreement by the end of the period specified in Article 12, KIB
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 Dempster 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 Dempster or Roll -off
Container within 2 Service Days of a Customer's request or other time agreed to between
Contractor and Customer.
d. Delivery to KIB 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
59 COLLECTION SERVICES CONTRACT I Kodiak Island Borough, AK
Landfill, subject to the same obligations that Contractor has with respect to Refuse under
Attachment 8. (For example, cis of the Contract Commencement Date. Contractor cannot deliver
C&D Debris to KIB Landfill on windy dgvs when directed by KIB.)
6-6.02 Weekly Residential Roll -off Service. Beginning on the Collection Commencement
Date, Contractor will provide Customers whose Residential Premises are in areas known
colloquially as: Bells Flats, Chimak and Pasagshak (and other areas as identified by the KIB
Representative from time to time in Notice to Contractor), with Roll -offs or Dumpsters.
Contractor will Collect Refuse discarded in those Roll Offs weekly, on the same Regularly
Scheduled Collection Date.
6-6.03 Roll -Off Container at KIB 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 KIB
Landfill. Contractor will replace that Dumpster or Roll -off Container with another Dumpster or
Roll -Off Container of any other capacity provided on the Service Fee Schedule, within two
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 KIB 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 KIB, and dispose of it at the KIB Landfill (and pay
KIB disposal fee).
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 KIB Landfill, as estimated by a KIB
employee.
(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
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 KIB.
ATTACHMENT 7: GENERAL COLLECTION PERFORMANCE OBLIGATIONS AND
STANDARDS.
fi0 COLLECTION SERVICES CONTRACT Kodiak Island Borough, AK
7-7.01 Missed Pickups and Other Complaints.
a. Corrective action.
(1) 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, KIB 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.
(3) No referral to KIB. Contractor will not refer or forward any Customer to KIB for
resolution of complaints or answers to inquiries unless the Customer insists, in
which event Contractor will refer the Customer to the KIB 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 KIB.
C. Records. Contractor will maintain a daily written record of every inquiry and complaint
received by Contractor, including information required by KIB, and provide KIB with a copy of
those inquiries and complaints by the 15"' day of each month.
d. KIB access to records. Contractor will allow KIB 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 KIB within two hours of KIB
request, and other Records, promptly.
e. Reimbursement of KIB 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 (KIB Business Days generally Monday through
Friday) resolving all Customers' complaints or answering all Customers questions.
1119711 COLLECTION SERVICES CONTRACT I Kodiak Island Borough, AK
KIB's invoice for KIB'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 KIB employee or other Person,
(iv) hourly fees for KIB 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
KIB.
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-Cotlection 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;
(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 KIB Landfill or other location
designated by KIB.
ga COLLECTION SERVICES CONTRACT I Kodiak Island Borough, AK
Promptly upon KIB request, Contractor will inform KIB 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 KIB.
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 KIB written status reports in form and content satisfactory to K[B on a
weekly basis, commencing no later than the Friday of the week following the Contract
Commencement Date. On the first KIB Business Day each week and promptly upon KIB
request, Contractor will meet with KIB 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 KIB based on
the following information:
(l) scope of services, and
(2) any surcharge.
63 COLLECT[ON SERVICES CONTRACT I 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) KIB 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 KfB's rights to use and possession
and, with respect to Carts, acquisition or purchase. Any Contract Service Asset Document, will:
(l) allow the Guarantor to assume Contractor's obligations and to continue use of
Contract Service Assets in performing Contract Services;
(2) allow KIB 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 KIB 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 KIB.
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 & KIB Fee Collection.
a. Customer service fees. Contractor will provide billing and bill collection services at the
time and in the manner satisfactory to KIB, in amounts equal to the Contractor Service Fee
(subject to any Senior Discount), Adjusted Tonnage Amount and any other fees directed by KIB.
64 COLLECTION SERV[CES CONTRACT Kodiak Island Borough, AK
b. KIB fees.
(1) Amount. On behalf of KIB, Contractor will charge Customers a fee or fees in the
amount directed by KIB. Contractor will not separately itemize that fee or fees on
invoices to Customers or any other correspondence with Customers, unless
authorized by KIB.
(2) Recording Fees. Upon receipt of any Customer's payment of fees for Contract
Service, Contractor will simultaneously record receipt of KIB's fees in separate
accounts within Contractor's detail general ledger. Those fees belong to KIB and
not to Contractor.
(3) Remitting Fees. Contractor will remit to KIB amounts equal to KIB's fees at the
time directed by KIB. Contractor may retain the remaining amounts received from
Customers as compensation for fully and timely satisfying Contractor's obligations
under this Agreement.
7-7.08 Containers.
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 KIB (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 KIB.
(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 KIB
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 KIB with a copy of Service Asset Documents related to Container
acquisition and financing and Container inventory promptly upon Container
acquisition and thereafter promptly at KIB request. Contractor will update the
Service Asset Documents and Container inventory in each Annual Report and
within 10 days of KIB request.
65 COLLECTION SGRV[CES 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 KIB and surcharges, if any, listed on the Service Fee
"Cable, 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
Dempster 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 KIB with a copy of any Customer Service Subscription
Promptly upon request.
6 COLLECTION SERVICES CONTRACT I Kodiak Island Borough; AK
7-14.01 Liquidated Damages. Liquidated Damages in the chart below apply to each Breach
established or substantiated to satisfaction of KIB, for each day (the first occurrence and
continuation on successive days). For example, failure to correct a missed pickup would resull
in liquidated damages on the day of the scheduled pickup and each following dory until corrected.
KIB's assessment of Liquidated Damages for the following Breaches does not preclude KIB
from enforcing the KIB Code for corresponding Violations.
SECTION
BREACH
LIQUIDATED DAMAGE
4-4.01
failure to provide Contract Services for
$250 per each failure / per
any Customer (including missed pickups
Customer / per day; as
of Carts)
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
$100 per failure / per Container
Set -out Site
/ per Collection
7-7.08
failure to deliver, repair, replace or pick-
$100 per failure / per Customer
LIP Carts. Dumpsters or Roll -offs
/ per day
9.O1 / KIB
failure to timely compensate Customer,
$300 per failure / per Customer
Code
or to repair or replace damaged
/ per day
pavements, utilities or Customer property
9.01 / KIB
failure to clean up litter, spills. leaks
$100 per incident / per day
Code
9.Ot / KIB
failure to provide KIB access to or copies
$100/$200/$300/$400 if not
Code. 10.01
of Records (including Routine)
provided within 7 / 14 / 21 / 28
days, of KIB request; and $500
for each week thereafter
4-4.04
failure to timely return a KIB call in
$500
event of emergency
7-7.01 /
failure to record a complaint
$t00 per failure
Customer
Complaint
Protocol
7-7.01 /
failure to timely respond and resolve a
$250 per failure / per Customer
Customer
Customer complaint
/ per day
Complaint
Protocol
9.01 / KIB
failure to observe Collection hours
$250 per failure / per Customer
Code
9.01 / KIB
failure to observe Contractor Office
$250 per failure / per day
Code
Hours
G7 COLLECTION SERVICES CONTRACT I Kodiak Island Borough. AK
9.01 / KIB
failure to disclose or correctly describe
$100 per failure / per Customer
Code
Service options to any Customer
9.01 / KIB
driving overweight vehicles
$500 per incident
Code
17.10
discourteous behavior by Contractor's
$300 per report or complaint /
employees or Subcontractors reported by
per Customer
or complained of by Customers to
Contractor or KIB
9.01 / KIB
noise emission in excess of prescribed
$300 per Vehicle / per day
Code
levels
Vehicle is used to provide
Collection
9.01 / KIB
failure to maintain Contractor's phone
$200 per failure / per Vehicle /
Code
number on Vehicles
per day Vehicle is in use to
Collect Solid Waste
9.01 / KIB
failure to clean up litter
$100 per failure / per spill
Code
location / per day
9.01 / KIB
failure to cover materials in open
$100 per failure / per truck /
Code
Collection Vehicles
per route (First pick-up until
delivery to Solid Waste
Nlanagement Facility
6-6.O ee,
failure to deliver any Solid Waste to a
$1,000 per load for first
[possibly
facility approved by KCB
failure; $5,000 per load for
Attachment
each subsequent failure
5, if
recycling
program
implemented)
7-7.07
charging any Customer in excess of the
$500 per inaccurate invoice /
KIB Code
scheduled Service Fee (such as the
per Customer
incorrect Wart )
9.01 /KIB
failure to submit any general Customer
$500 per failure / per Customer
Code
correspondence, promotional material,
plus $100 per day prior to
news releases, public education or
retraction or correction of
community relations materials to KIB for
misinformation identified by
KIB review
KIB
COLLECTION SERVICES CONTRACT I Kodiak Island Borough, AK
ATTACHMENT 8: REFUSE DISPOSAL.
8-1.01 Transportation to KIB Landfill.
a. KIB Landfill. Contractor will transport and deliver all Refuse that it Collects to KIB
Landfill. Contractor will coordinate that delivery with Holiday Collection schedules and closures
for repair and maintenance. Contractor will keep Refuse that it Collects at Residential Premises,
whether in Carts or Dumpsters, separate from Refuse that it Collects at Commercial or Multi -
Family Premises and will not commingle that Refuse in one Vehicle.
b. Compliance and cooperation. Contractor will ensure that its vehicles can pass in and
out of the door at the baler at KIB Landfill. Contractor will cooperate with KIB Landfill operator
and comply with all rules in effect at the KIB Landfill, including the following:
(1) delivering Refuse only at the times and on the days specified by KIB;
(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. Disposal Fees. Contractor will pay Disposal costs, including Disposal of Refuse that
Contractor Collects from Roll Offs/Dumpsters located at the KIB 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 KIB,
(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, KIB or KIB's Related Parties, but only to the extent that those
Liabilities and Losses are caused by the following:
(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.
69 COLLECTION SERV[CES CONTRACT � 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. KIB Sole Negligence Excluded. Contractor is not required to reimburse or indemnify
KB 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 (fbr erantple, a driver accepting a Customer bribe and illegally disposing of
Unpermitted Waste that upon identificalion !hereof, must be segregated and transported cis
required by Applicable Law).
70 COLLECTION SERVICES CONTRACT I Kodiak Island Borough, AK
ATTACHMENT 13.01: CON'TRACTOR 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 KIB 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 KIB, Contractor may charge that Fee
following KIB approval and Customer agreement.
Contractor Service Fee
for
Carts
(Section / Attachment 4)
I # of Refuse Carts
Monthly Service Fee
Senior Discount
—Capacity
32 gallon
$28.90
$21.90
64 gallon
$34.09
$27.09
96 gallon
$38.31
$31.31
Each additional 32 gallon
$28.90
Disposal
Each additional 64 gallon
$34.09
$7.36
Each additional 96 gallon
$38.31
Residential Roll-off/Dumpster
$38.31
$31.31
Additional Set -Out Fee
$6.87
$6.13
Contractor Service Fee Surcharges for Service
Service Description
Contract
Contractor Service Fee
Section
(monthly)
On call Collection of Bulky
Attachment 4
525.00 per call (not
Waste
item) plus Direct Cost of
Disposal
Rollout Service for Non-
Attachment 4-
$7.36
eligible Customers – Initial 30'
4.01d
or fraction thereof
Rollout Service for Non-
Attachment 4-
$6.13
eligible Customers – Each
4.01d
additional 30' of fraction
thereof
Beginning 7 months after
Attachment 7-
525.00 plus Direct Cost
Collection Commencement
7.046
of Cart
Date, replacement of Cart in
excess of once / calendar year
71 COLLECTION SERVICES CONTRACT Kodiak island Borough, AK
Bear lock for Customers in
Pickups per Week / Contractor Service Fee (monthly)
One-time difference
portion of Contract Service
2
between Direct Cost of
Area not required to have bear
5
Cart with / without bear
locks
5353.86
lock
Drive in Service — First 100'
$884.65
$18.40
Drive in Service — 100' — 300'
$445.44
$30.67
Drive in Service — Nlore than
$1,1 13.61
Individually assessed
300'
$562.79
$844.19
Residential [Zoll -Off /
$1,406.98
$2.00
Dempster Clean-up Costs
$604.48
$906.73
Contractor Service Fee
for
Dumpsters
(Section / Attachment 4)
Dumpster
Pickups per Week / Contractor Service Fee (monthly)
Size
l
2
3
4
5
2 yard
$176.93
5353.86
$530.79
$707.72
$884.65
2.6 yard
$222.72
$445.44
$668.17
$890.89
$1,1 13.61
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
4yard
$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
5371.76
$743.52
$1,115.28
$1,487.40
$1,858.80
6yard
$424.94
$849.88
$1,274.82
$1,699.76
$2,124.70
8 yard
$531.18
51,062.36
51,593.54
$2,124.72
52,655.90
*Contractor Service Fee for multiple Dumpsters is equal to the above scheduled amounts
multiplied by the number of Dumpsters.
3r2` COLLECTION SERVICES CONTRACT I Kodiak Island Borough, AK
Contractor Service Fee
for
Drop Boz Service
(Section / Attachment 4)
Contractor Service Fee (Per Tip
Dumpster
Agreement
Section
Size
10-20 yard
30-40 yard
10-20 yard
30-40 yard
4.02b2
Dumpster
per Contract Year
Compactor
Compactor
Locks on Dumpster
$148.50 plus
$198.00 phis
$148.50 plus
$198.00 phis
disposal
disposal
disposal plus
disposal plus
disconnect fee -
disconnect fee -
$2125
$21.25
Contractor Service Fee Surcharges
for Dumpsters
Service Description
Agreement
Section
Amount
Change in size and number of
Attachment 4-
$20.00 per exchange per
Dumpster more frequently than once
4.02b2
Dumpster
per Contract Year
Locks on Dumpster
Attachment 4-
Additional $5.00 per month
4.402
73 COLLECTION SERVICES CONTRACT I 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.
Affiliate Parent means an Affiliate that, directly or indirectly, through one or more
intermediaries, controls Contractor.
Annual Report means the Report required under Section 10.02 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,
(l 1) 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;
COLLECTION SERVICES CONTRACT I Kodiak Island Borough, AK
(17) Labor:
(i) Drug and alcohol testing;
(ii) The Occupational Safety and Flealth Act, (29 U.S.C. §651 el 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
requlrements;
(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 el seq., 42 U.S.C. §7401-7642) and Clean
Water Act. and;
(iv) corresponding State requirements;
(v) Emergency Planning and Communitv Right to Know Act, (42 U.S.C. §1 1001
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) KIB Code,
(20) Nliscellaneous:
(i) Civil Rights Act of 1964 (Sub chapter V1 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,
(ll) 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
I and ending December 31. (Compare "Contract )'ecir')
Cart means a wheeled receptacle that can be emptied by either semi- or fully -automated
vehicles.
Change in Law means the following changes occurring after the Contract Commencement Date:
(1) the adoption, promulgation, repeat, modification, amendment or other change in
Applicable Law or change in judicial or administrative interpretation thereof
occurring, other than:
(i) laws with respect to taxes based on or measured by net income, or
76 COLLECTION SERVICES CONTRACT Kodiak Island Borough, AK
(ii) any unincorporated business, payroll or Contract taxes levied by any tax
governmental authority (other than any taxes levied by KIB that are
obligations of Contractor and not merely fees that Contractor must collect on
behalf of KIB), or
(iii) employment taxes; 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 willftil misconduct or
negligent action or inaction of the Party relying thereon or of any third party
Por 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 cis 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.
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 -oft' Containers).
Collection Commencement Date means the date described in Section 3.O1b, on which
Contractor begins providing certain Customer Collection services, including:
(1) Attachment 4-4.01 (residential Carts),
(2) 4-4.02 (residential, commercial, multifamily Roll Offs or Dumpsters),
(3) 6-6.01 (on-call Roll -Off containers),
(4) 6-6.02 (permanent Roll -off Containers) and
(5) 6-6.03 (Roll -Off container at KIB Landfill, at KIB's request).
(Compare "Contract Commencement Date ".)
Collection Flours means the time during which Contractor can Collect Solid Waste under the
KIB Code.
COLLECTION SERVICES CONTRACT I 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
1=4.05.
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 on which this Contract is signed by both
Contractor and KIB. (Compare "Collection Commencement Date ".)
Contract Manager means the following:
(1)
Contractor Representative
(2)
Contractor's officers
(3)
Contractor's directors, and
(4)
any individual in a Position of Influence.
Contract Service means the MSW Management Services that Contractor most provide for
Customers under this Contract, including Performance Obligations in the Attachments 4
(Collection in Carts, dunnpsters 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 `k1,SGV iLlonogemeni Services".)
Contract Service Area means all land within the boundaries of KIB where Customer's premises
can be served by roads.
Contract Service Asset Document means a document that encumbers or limits Contractor's
interest in a Contract Service Asset or that evidences Contractor's ownership interest in the
Contract Service Asset, such as:
(1) lease -purchase agreement,
(2) installment purchase agreement.
(3) financing statement, mortgage or other instrument establishing a security interest to
or by Contractor,
78 COLLECTION SERVICES CONTRACT I Kodiak Island Borough. AK
(4) if requested by KIB, dOCUments related to Contractor's rights with respect to the
Contractor Service Asset. such as Cart warranties, and
(5) if requested by KIB, documents related to operation and maintenance of the
Contractor Service Asset.
Contract Service Assets means all property, both tangible and intangible (such as facility leases
or equipment installment purchase agreements) used directly or indirectly in performing Contract
Services_ including the following:
(1) vehicles,
(2) receptacles,
(3) operation / maintenance equipment and facilities,
(4) administrative / office equipment (such as computer hardware and software,
telephones/telefax) and offices.
Contract Service Day means a weekday or Saturday on which Contractor must perform
Contract Services, Holidays excepted. (Conilmire "clay" and "KIB Business Day".)
Contract Service Exceptions means:
(1) Solid Waste Not Proper Placed in Receptacles: discarded Solid Waste (other than
any Bulky Item) is not placed inside a Receptacle.
(2) Any Receptacle that weighs more than limits prescribed on Receptacle's
manufacturer warranty or other documentation acceptable to KIB and noted on the
Receptacle.
(3) Receptacle or Bulky Items Not Placed at Proper Set -out Site: a Receptacle is
not discarded at the Set -out Site, or a Bulky Item or excess Refuse is not discarded
at the Set -out Site under 4-4.04.
(4) Unsafe Condition: the Set -out Site is not safely accessible to Vehicles or
Contractor's employees.
(5) Unpermitted Waste or Unsafe Nlaterials: 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 KIB 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 KIB under this
Contract in form and content satisfactory to KIB, listed and collected in the Appendix.
Contractor Office means Contractor's office located in KIB at the address listed in the
Appendix.
79 COLLECTION SERVICES CONTRACTI Kodiak Island Borough. AK
Contractor Office Hours means at least 8:00 a.m. to 5:00 p.m. Monday through Friday
(Holidays excepted). (Compare "KIB Office ffours ")
Contractor Payment Obligations means amounts Contactor owes to KIB, including:
(1) damages, including Liquidated Damages and Compensatory Damages;
(2) reimbursements to KIB, including KIB's Reimbursement Costs;
(3) any other amounts provided in this Contract, such as costs of applying to courts for
judicial construction of Contract Provisions 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. (Cornpore "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 KIB. It is Contractor Documentation.
Contract Year means each 12 -month period commencing July I and ending June 30, or with
respect to less than 12 -month periods following execution, termination or execution of the
Agreement, the portion of that 12 -month period. (Compare "Calendar Year ".)
Criminal Activity means any of the following:
(1) fraud or criminal felony offenses in connection with obtaining, attempting to obtain,
procuring or performing a public or private agreement related to recyclables, yard
waste, construction and demolition debris, garbage, refuse, or any other solid waste
or MSW Management Services of any kind (including collection, hauling, transfer,
processing, composting or disposal), including this Contract;
(2) bribery or attempting to bribe a public officer or employee of a Regulatory
Authority; or
COLLECTION SERVICES CONTRACT I Kodiak Island Borough, AK
(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 KIB) 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 KIB Counsel's Office) investigation
fees and expert witness fees.
which Direct Costs are substantiated by:
(7) a certificate signed by the principal financial officer of Contractor or an authorized
representative of KIB, as the case may be,
(i) setting forth the amount of the cost and the reason why the cost is properly
chargeable to KIB or Contractor, as the case may be, and
COLLECTION SERVICES CONTRACT I Kodiak Island Borough, AK
(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 KIB or Contractor requests, as the case may be, the additional back-up
documentation to substantiate any Direct Cost, including invoices from suppliers,
Subcontractors and contractors.
Direct Costs excludes profit or return on investment.
Disposal or Dispose or other form thereof means final deposition or destruction of Solid Waste.
Diversion or Divert means activities that reduce or eliminate the amount of Solid Waste from
disposal.
Drive-in Service means when the contractor is required to leave the public right-of-way and
enter a driveway, private road, or private property.
Dumpster means a receptacle for discarded solid waste that has slots to allow pick-up by the
forklifts, generally a metal box with lid also referred to as "bili'.
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 65years 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.
Guaranty means the guaranty in substantially the form attached as Exhibit 11.04, as approved
by KIB, signed by Guarantor.
82 COLLECTION SERVICES CONTRACT I Kodiak Island Borough, AK
Herein, Hereof, Hereunder and variations mean "in this Contract", "of this Contract", "under
this Contract'; "hereinbefore" and "hereinafter" mean before and after the Contract
Commencement Date, respectively.
Holidays means days on which KIB offices are closed for business to the public, comprised on
the Contract Commencement Date of the following days:
(1) New Year's Day,
(2) Martin Luther King Day
(3) President's Day
(4) Seward's Day
(5) Memorial Day,
(6) Independence Day,
(7) Labor Day,
(8) Veteran's Day
(9) Thanksgiving Day and the day after Thanksgiving and,
(10) Christmas.
Including or Include or variations thereof means "including without limitation, "including, but
not limited to" and "including, at a mininuim".
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,
KIB 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.
KIB Business Day means any day on which KIB Administration office is open to do business
with the public. (Compare "Contract Service Day".)
KIB Code means municipal law of KIB.
KIB Governing Body means KIB Assembly.
KIB Office Hours means the hours of any KIB Business Day on which KIB Administration
office is open to do business with the public (Compare "Contractor Of,Jice Koons
KIB Representative means the individual holding the position named by KIB wider Section
17.07a. (Compare "Contractor Representative".)
8ga COLLECTION SERVICES CONTRACT I Kodiak Island Borough, AK
KIB's Reimbursement Costs means KIB's Direct Costs plus 15%. (Compare "C'ontractor'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 be
of provisions in this Contract that
reference them. (Compare "Contractors Related Parties
KIB Landfill means the landfill owned by KIB.
Letter of Credit means the letter of credit described 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,
(li) 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.
Monthly Report means the report prescribed by Attachment 10.02a
NISW Management Services means:
84 COLLECTION SERVICES CONTRACT I Kodiak Island Borough. AK
(1) collection, transportation, storage, transfer, or processing of solid waste; and/or
(2) arranging for disposal of solid waste.
Multi -family describes Persons (such as Customers) or things (such as Carts or types of Solid
Waste) in the Contract Service Area that are not Residential.
Multi -family Customer means a Customer who owns or occupies a Multi -family Premise.
Multi -family Premises means premises that are not residential premises (and therefore contains
4 or more dwelling units) including apartment complexes and trailer courts.
Non -Collection Notice means a notice in form and substance satisfactory to KIB left by
Contractor in event of Contract Service Exceptions, such as Discard of Unpermitted Materials.
Notice or Notify or other variation thereof means notice given wider 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,
(4) license (including business license),
(5) approval,
(6) authorization,
(7) consent and
COLLECTION SERVICES CONTRACT I Kodiak Island Borough. AK
(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
(1 1)
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:
(l) 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
(l)
reduction,
(2)
separation,
(3)
recovery,
(4)
conversion or
(5)
recycling, and
(6)
creating compost.
processing
does not mean baling refuse.
Processing means "processing' of Solid Waste.
Promptly or Prompt means as soon as practicable, but not more than two days.
COLLECTION SERVICES CONTRACT � Kodiak Island Borough, AK
Quarter means any of all of the following periods, as the context demands:
(1) January, February, March ("Ist Quarter"),
(2) April, May, June ("2"" Quarter"),
(3) July, August, September ("3"' Quarter"),
(4) October, November, December ("4`h 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.
Regularly Scheduled Collection Day(s) means the same day(s) each week on which Contractor
provides Collection to a Customer.
Authoritv means each of the followine that has iurisdiction over either Party or this
COLLECTION SERVICES CONTRACT I Kodiak Island Borough, AK
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.
Senior Discount means the amount by which the Contractor Service Fee is reduced from time to
time by KIB for providing Contract Service to any Residential Customer who is over 65 years
old as evidenced to KIB by birth dates on driver's licenses, birth certiticates, 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 "K!B Business Day".)
Set -out Site means the location agreed to by Contractor and the Customer and indicated on the
Customer Service Subscription or required by KIB, where Customer must place its Carts for
Collection, including:
(1) Residential curb: on the curb in front of Residential Premises; in the street
COLLECTION SERVICES CONTRACT I Kodiak Island Borough, AK
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 contest demands:
(1) KIB Landfill, and
(2) any other facility that handles Solid Waste and that is approved by KIB.
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 I5.OIa.
Ton (or Tonnage) means a short ton of 2,000 pounds avoirdupois.
Transfer means any of the following:
89 COLLEC"CION SERVICES CONTRACT Kodiak Island Qorough, AK
(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;
(� 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
KIB, such as wind, rain or snow);
(2) sabotage, explosion;
(3) insurrection, riot or civil disturbance, war or other emergency affecting KIB
declared by the President of the United Sates or Congress of the United States, the
State Governor or KIB Governing Body;
(4) failure of public agency or private utility to provide and maintain water, power or
service in KIB or at Contractor's operations and maintenance yard or administrative
offices;
(5) other catastrophic events beyond the reasonable control of that Party and not the
result of willful or negligent action or inaction of that Party (other than the
COLLECTION SERVICES CONTRACT I Kodiak Island Borough, AK
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 KIB Landfill under
Applicable Law of the State or KIB rules.
Unpermitted Waste Screening Protocol means the protocol under Section 7-7.02, in form and
content satisfactory to KIB. 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.
COLLECTION SERVICES CONTRACT I Kodiak Island Borough, AK
APPENDIX: CONTRACTOR INFORMATION AND DOCUMENTATION
Attachment 21.01 "Contract Alanagers"
(with respect to Section 1.02 Criminal Activity)
"CONTRACT
Contractor
Contractor Notice
"Contractor Office"
MANAGERS"
Representative
19.01
(local)
t7.07b
(1)CONTRACTOR
Attachment 21.01
Name and/or
Jeff Riley, COO
Jeff Riley, COO
Caroll Mahoney, Site
Title
Manager
Chief Operating Officer
Telephone
907.273.2763
907.273.2763
907.486.5308
Email
ieffr,cc0akwaste.com
'effrlrd�akwaste.com
carollmRmakwaste.com
Telefax
907.273 2730
907:273.2730
907.486.2300
Postal
6301 Rosewood St
6301 Rosewood St
1621 Mill Bay RD
3.
address
Anchorage, AK
Anchorage, AK
Kodiak, AK 99615
99518
99518
Delivery
6301 Rosewood St
6301 Rosewood St
1621 Mill Bay RD
address
Anchorage, AK
Anchorage. AK
Kodiak, AK 99615
(1) officers of Parent Affiliate
99518
99518
President
Attachment 21.01 "Contract Alanagers"
(with respect to Section 1.02 Criminal Activity)
"CONTRACT
CONTRACTOR
AFFILIATE
SUCCESSIVE
MANAGERS"
PARENT
AFFILIATE
PARENT
(1)CONTRACTOR
REPRESENTATIVE
(2) OFFICERS:
Chief Operating Officer
Chief Financial Officer
(3) Management Board
1.
2.
3.
4.
5.
(4) "POSITION OF
INFLUENCE"
(1) officers of Parent Affiliate
President
Vice -President
Secretary Treasurer
92 COLLECTION SERVICES CONTRACT 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.
ISM COLLECTION SERVICES CONTRACT I Kodiak Island Borough, AK
CONTRACTOR DOCUMENTATION
(in form and content satisfactory to KIB)
7-7.01 CUSTOMER COMPLAINT PROTOCOL
7-7.02 UNPERNIITTED 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"
1 L01 EVIDENCE OF INSURANCE:
(1) COIs,
(2) ENDORSEMENTS,
(3) SCHEDULES
11.03 LETTER OF CREDIT
11.04 GUARANTY
94 COLLECTION SERVICES CONTRACT Kodiak Island Borough, AK
6" 4z'l �, Fele -&
AMENDMENT NO. 1 TO EXCLUSIVE SERVICE CONTRACT FOR RESIDENTIAL
AND COMMERCIAL REFUSE COLLECTION AND TRANSPORTATION TO KIB
LANDFILL BETWEEN KODIAK ISLAND BOROUGH AND ALASKA PACIFIC
ENVIRONMENTAL SERVICE, LLC
WHEREAS, the Parties acknowledge that certain Performance Assurances should be
provided to KIB; and
WHEREAS, Contractor has sought to provide a Letter of Credit but has been unable to
obtain a Letter of Credit from a financial institution; and
WHEREAS, the parties wish to replace the letter of credit requirement with other
Performance Assurances to be provided by the Contractor.
NOW THEREFORE, the Contract is hereby amended as follows:
Section 1. Subsection (c) is added to Section 10.02, Reporting Requirements, as
follows:
c. Customer Billing Information.
1. Quarterly. By each January, April, July and October 10 Contractor will give
KIB a copy of Customer subscription records for the preceding quarter, updated as of
the last date of that quarter, including the following:
1. Name,
2. Billing address,
3. Service address,
4. Service level and frequency,
5. Current payment status,
6. Any instructions or notes with respect to special services (such as location
of containers), and
7. Summaries of customer service information (such as total number of
accounts) and related information (such as tonnages), requested by KIB.
Contractor will give KIB the copy in an excel format as requested by KIB.
2. On KIB Request. Within 5 days of KIB request, Contractor will give KIB a
copy of Customer subscription records as of the date of request. THIS REQUIREMENT
SURVIVES THE TERM OF THIS CONTRACT.
u
Section 2. Section 11.03 is deleted and replaced with the following:
11.03 Payment Security. Contractor will provide the following to ensure payment of
disposal fees and reimbursement of billing costs incurred by KIB in the event of Default
or Breach by Contractor: This Section will survive the termination of this Contract.
a. Payment Bond. Contractor has provided a Payment Bond from an insurance
company approved by KIB to secure payment of delinquent disposal fees in the
following principal amounts:
1. During the first Contract Year $348,000,
2. During the second Contract Year: $382,000,
3. During the succeeding Contract Years an amount equal to 3 months of disposal
costs using the monthly average of the total disposal fee accrued by the
Contractor during the previous Contract Year.
b. Pledged Bank Account. Contractor has deposited with a Bank approved by
KIB the sum of $55,000 to be used to reimburse KIB for costs it may incur in billing
refuse customers in the event of Default under this Agreement. KIB will be the only
party authorized to make withdrawals from the account. Interest earned on the account
will be payable to Contractor.
C. Payment Upon Default.
1. KIB may draw on the Payment Bond, in one or more drawings, any amount in
arrears, if Contractor fails to pay disposal fees when due or in the event of a
Default or Breach.
2. KIB may draw on the Pledged Bank Account in one or more drawings, any
reasonable expenses incurred if KIB assumes responsibility for issuing bills to
Contractors' refuse customers for refuse service in the event of a Default or
Breach.
d. Return of Security.
1. The Payment Bond will terminate and amounts in the Pledged Bank Account
may be paid to Contractor no earlier than the date on which KIB issues a
certificate 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
`a
(iii) Contractor has substituted an alternative letter of credit or other
security document acceptable to KIB in KIB's sole discretion, and
(iv) Contractor does not owe KIB any money.
Section 3. Subsection 14.04.b(6) is deleted and replaced with the following:
(6) Financial Assurances. Draw on the Payment Bond or Pledged Bank Account,
demand payment under the Guaranty or any Indemnity, or submit any claim in under
Insurance.
Section 4. Section 14.04.d(2) is deleted and replaced with the following:
(2) drawing on the Payment Bond or Pledged Bank Account,
Section 5. Section 14.05 is deleted and replaced with the following:
14.05 Additional Compensatory Damages. Without limiting KIB's rights to seek
Compensatory Damages under Section 14.01 or law, KIB may seek the following
compensatory damages:
(1) Amounts equal to any Contractor Payment Obligations or other amounts that
Contractor has previously paid to KIB but are subsequently recovered from KIB
by a trustee in bankruptcy as preferential payments or otherwise;
(2) If KIB terminates this Contract for Default, KIB's Reimbursement Costs to
provide or re -procure MSW Management Services in lieu of Contract Services;
and
(3) If KIB terminates this Contract for Default, KIB's projected Direct Costs of
replacing MSW Management Services in excess of Contractor Service
Compensation for the balance of the Term remaining if this Contract had not
been terminated, as based on service fees under replacement agreements for
those MSW Management Services.
THIS SECTION WILL SURVIVE THE TERMINATION OF THIS CONTRACT FOR 180
DAYS OR OTHER PREFERENCE PERIOD PROVIDED UNDER APPLICABLE LAW
WITH RESPECT TO BANKRUPTCY OR INSOLVENCY. KIB may draw upon the
Payment Bond, Pledged Bank Account, Guaranty or any other available Performance
Assurance to pay compensatory damages.
Section 6. The following Definitions are added to Attachment 20.01:
3
Payment Bond means the Payment Bond described in Section 11.03. a. This is
included in Contractor Documentation.
Pledged Bank Account means the Pledged Bank Account described in Section
11.03. b.
Section 7. The definition of Letter of Credit is deleted from Attachment 20.01.
The definition for Performance Assurances in Attachment 20.01 is deleted and replaced
with the following:
Performance Assurances means each and every Indemnity, Insurance,
Payment Bond, Pledged Bank Account, Guaranty, and any other instrument or cash
described in Article 11.
Section 8. The name of the Contractor as shown on the signature page and the
cover page of the Contract is corrected to be as shown below.
3
AP
Entered into and effective this _LCL day of
KODIAK ISLAND BOROUGH
Alaska, a political subdivision
;;>613y: cd
Name: Rick L. Giff
Title: Manager
Dated: 7// `/' �.z
ATTEST:
KI�,PtERK 414
Zy� Dame: Nova Javier, WC77 Dated: %_l%-�20 /i
APPROVED AS TO FORM:
KIB COUNSEL
Name:
Dated:
2011.
ALASKA PACIFIC ENVIRONMENTAL
SERVICES ANCHORAGE, LLC
By:
Name: Jeff Riley
Title: Chief Operations Officer
Dated:_10 C o*-) ?'0
ATTEST:
�.
�,..., °Name.
z ,
r ,6
rt&!
5 (CadelTiiOLJ4�p ��
Entered into and effective this
KODIAK ISLAND BOROUGH
Alaska, a political subdivision
By:
Name: Rick L. Gifford
Title: Manager
Dated:
F-AXItr=15
KIB CLERK
Name: Nova M. Javier, CMC
Dated:
APPROVED AS TO FORM:
day of 2011.
KIB COUN'S
Name: LLL✓�Z�7'�
Dated: 7 U/
11
ALASKA PACIFIC ENVIRONMENTAL
SERVICES ANCHORAGE, LLC
Name: Jeff Riley
Title: Chief Operations Officer
Dated:
ATTEST:
By:
Name:
Dated:
C jCm0-�0
ACKNOWLEDGMENT & CONSENT TO ASSIGNMENT
Waste Connections of Alaska, Inc. ("WCI") has agreed to purchase, all or substantially
all of the assets of Alaska Pacific Environmental Services Anchorage, LLC ("Seller"), pursuant
to an Asset Purchase Agreement dated August 16, 2011 (the "Purchase A)Zreement") between
WCI. Seller and certain other parties, (the "Sale"). In connection with the consummation of the
Sale, WCI will acquire the assets and certain obligations of Seller, including that certain
Exclusive Service Contract for Residential and Commercial Refuse Collection and
Transportation to KIB Landfill between Kodiak Island Borough and Alaska Pacific
Environmental Service, LLC, effective 2010 as amended, by and between the undersigned and
Seller (the "Contract"). A copy of the Contract is attached as Exhibit A to this Consent.
The undersigned hereby acknowledges that WCI and Seller are contemplating the
consummation of the Sale, and consents and agrees to any direct or indirect transfer or
assignment by Seller to WCI of the Contract (the "Assignment") that has, or may be deemed to
have. occurred upon the consummation of the Sale. The undersigned hereby further agrees that
the Assignment shall not be deemed a breach of the Contract and that the Contract will remain in
full force and effect after the consummation of the Sale. This Consent shall not be effective and
the Assignment shall not be valid or binding on WCI or Seller unless and until the closing occurs
under the Purchase Agreement (the "Effective Date").
The undersigned further consents and agrees to the assumption by WCI of all rights and
obligations of Seller under the Contract that arise on and after the Effective Date. Any claims by
the undersigned for damages or similar liabilities submitted on or after the Effective Date will be
to WCI and not to Seller..
The undersigned acknowledges and agrees that (i), except for Amendment No. 1 dated
June 2011, the Contract has not been amended or modified and remains in full force and effect,
(ii) there is no defense, offset, claim or counterclaim by or in favor of the undersigned against
Seller under the Contract or against the obligations of Seller under the Contract, and (iii) neither
the undersigned nor, to the undersigned's knowledge, Seller, is in default in the performance or
observance of its obligations under the Contract, and the undersigned has no knowledge of any
occurrence of any event that with notice or the passage of time would result in a default by the
undersigned under the Contract.
Date: 7 //& . 2012.
KODIAK ISLAND BOROUGH
yUGH
By: O!_
Name: Rick Gifford
Title: Borough Manager
Address: 710 Mill Bay Road
Kodiak, AK 9961
I:\DOCs\410101 MACKNOWLEDGMENf AND CONSENT TO ASSIGNMENT WCI.DOC
5119\4b2\1773886 2
ATTEST: NND e\
r o
� c
Nova .lavier, MMC O ')
Borough Clerk
SKA
Seller's Representations:
Seller represents, and has demonstrated to the Kodiak Island Borough pursuant to Section
16.01(c) of the Contract, that WCI has the operational and financial ability to satisfy Performance
Obligations as set forth in the Contract. Seller has paid the Kodiak Island Borough $1,500 in
accordance with Section 16.01(d) of the Contract to cover potential costs of reviewing and
approving the proposed transfer.
By:
Its
WCI Representations:
ALASKA PACIFIC ENVIRONMENTAL
SERVICES ANCHORAGE, LLC
Except as defined in this Consent, capitalized terms shall have the meanings defined in the
Contract.
a. Status. WCI 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. WCI has full legal right, power and authority to to
assume the Contract and satisfy its Performance Obligations. As of the Effective Date of
this Consent, the Contract will be duly assigned to WCI and constitutes a legal, valid and
binding obligation of WCI enforceable against WC1 in accordance with its terms.
c. No conflicts. Neither the performance by WCI of its Performance Obligations, nor the
fulfillment by WC1 of the terms and conditions of the Contract:
1. Conflicts with, violates or results in a breach of any Applicable Law:
I:\Docs\41010100\ACKNowl_EDGMEN 1 AND CONSENT" fo ASSIGNMENT WCI.D0C
5119\462\1773886 2
2. Conflicts with, violated 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 WCI or anv of
its Affiliates is a party or by which WCI or any of its Affiliates'
properties or assets are bound, or constitutes a default thereunder; or
3. Will result in the creation or imposition of any lien, charge or
encumbrance of any nature whatsoever upon any of the properties
or assets of WCI.
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
assignment of the Contract to WCI, except that required under the Contract and those that
have been fully 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 WCI's knowledge, threatened, by or against
WCI wherein an unfavorable decision, ruling or finding, in any single case or in the
aggregate, would adversely affect the performance by WCI of its obligations under the
Contract or in connection with the transactions contemplated by the Contract, or which, in
any way, would adversely affect the validity or enforceability of the Contract or any other
agreement or instrument entered into by WCI in connection with the transactions
contemplated by the Contract. or which, in any way, would adversely affect the validity or
enforceability of the Contract or any other agreement or instrument entered into by WCI
in connection with the transactions contemplated by the 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 KIB by WCI.
f. Due Diligence. WCI has made an independent investigation, examination and research
satisfactory to it of the conditions and circumstances surrounding the Contract and best
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. WCI agrees that it will make no claims against KIB based on any good faith
estimates, statements or interpretations made by any officer, employee or agent of KIB
that proves to be in any respect erroneous.
g. Compliance with Applicable Law. A'CI 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 the Contract.
1:\DOCS\41010100\ACKNOWLEDUMEN'I AND CONSENT'ro ASSIGNMENT WCI.DOC
5119\462U773886 2
EXHIBIT A:
Exclusive Service Contract for Residential and Commercial Refuse Collection and
Transportation to KIB Landfill between Kodiak Island Borough and Alaska Pacific
Environmental Service, LLC, effective 2010 as amended
I:\DOCS\41010100\ACKNOWLEDGMENT AND CONSENT TO ASSIGNMENT WCI. DOC
5119\462\1 773886 2