HomeMy WebLinkAboutRescind Approval of Contract - Republic Services of Indiana - Disposal of Special Waste1316 COUNTY -CITY BUILDING
227 W.JEFFERSON BOULEVARD
SOUTH BEND_ INDIANA 46601-1 930
16
PFAca
1865
CITY OF SOUTH BEND PETE BUTTIGIEG, MAYOR
BOARD ' ! OF PUBLICWORKS
April 23, 2019
Cody Humphrey
Republic Services of Indiana, LP
2500 Green Drive
South Bend, IN 46613
RE: Rescind Approval of Contract
Dear Humphrey:
PHONE 574/235-9251
FAx 574/235-9171
The Board of Public Works, at its meeting held on April 23, 2019, rescinded their approval
of the above referenced contract for the disposal of special waste, approved on March 26,
2019, due to Republic's permit restrictions on the City's special waste.
If you have any further questions regarding this matter, please call this office at (574) 235-
9251.
Sincerely,
Linda M. Martin, Clerk
Enclosure
GARY A. G1LOT GENEVIEVE E. MILLER ELIZABETH A. MARADIK LAURA L. O'SULLIVAN THERESE J. DORAU
gym INTER -OFFICE MEMORANDUM
Department of Law
City of South Bend 227 W Jefferson Blvd
ass
TO: Board of Public Works, Linda Martin
FROM: Sandra Kennedy, Assistant City Attorney
SUBJECT: Rescission of Approval of Agreement for Services By and Between the City of
South Bend, Indiana and County Line Landfill Partnership (the "Agreement")
DATE: 4/16/19
Members of the Board and Ms. Martin:
On March 26, 2019, the Board of Public Works (the 'Board") approved the Agreement for
Services By and Between the City of South Bend, Indiana (the "City") and County Line Landfill
Partnership (the "Agreement"), which set forth the terms for the City's disposal of water waste
streams (grit, concentrated grease, and screenings), also known as "Special Waste." The same
day, the City returned the Agreement by mail to County Line Landfill Partnership ("Republic
Services") for countersignature.
On or about Friday, April 12, 2019, the City attempted to dispose of Special Waste pursuant to
the Agreement, but the Special Waste was declined at the landfill. Republic Services advised the
City that its permit did not allow it to accept the City's Special Waste. Upon due inquiry, the City
learned that Republic Services had not countersigned the Agreement, and the City asked for the
Agreement to be returned unsigned. The unsigned Agreement is attached.
Because the Agreement cannot be performed due to impossibility, and because the Agreement
was not countersigned by the vendor, the City's Department of Law respectfully requests that
the Board rescind its approval of the Agreement, rendering it null and void.
Thank you.
tO 049 4,
City of South Bend Department of Law
Request for Rescission of Approval of Agreement for Services
April 16, 2019
On this 23,d day of April, 2019, the Board of Public Works hereby rescinds its March 26, 2019
approval of the Agreement for Services By and Between the City of South Bend, Indiana and
County Line Landfill Partnership for the reasons set forth above.
CITY OF SOUTH BEND, INDIANA
BOARD OF PUBLIC WORKS
A�l �k
Gary A. +pilot, President
Therese Dor Member
Elizabeth Maradik, Member
ATTEST
Linda M. Martin, Clerk
Genevieve Miller, Member
Laura O'Sullivan, Member
BOARD OF PUBLIC WORKS
AGENDA ITEM REVIEW REQUEST FORM
Date
Name
April 16, 2019
Sandra
Department Legal
BPW Date Aril 23 2019 Phone Extension x9294
mMMffl ummmmm i e
Required Prior to Submittal to Board
BPW Attorney ® Attorney Name Clara McDaniels
Dept. Attorney ®
Attorney Name
Clara McDaniels
Purchasing ❑
Check the Appropriate
Item Type
- Required for All Submissions
❑ Professional Services Agreement
❑ Contract
Proposal
❑
Open Market Contract
F]
Amendment/Addendum ❑ Special Purchase, QPA
❑
Bid Opening
D
Bid Award
❑ Req. to Advertise ❑ Title Sheei
❑ Quote Opening
F1
Quote Award
Reject Bids/Quotes
❑ Proposal Opening
❑ C/O & PCA No.
❑ PCA
❑ Chg. Order, No.
F] Traffic Control
❑ Resolution
® Other: Rescission of
❑ Ease./Encroach
AI)roval of Contract
Company or Vendor Name
New Vendor
MBE/WBE Contractor
Project Name
Project Number
Funding Source
Account No.
Amount
Terms of Contract
Information
Line Landfill Partnership (Republic Services
❑ Yes ❑ If Yes, Approved by Purchasing
® No
❑ MBE Completed E-Verify Form Attached
WBE
Waste Water ...............
641-0630-793.63-36
❑ Yes
❑ No
Purpose/Description The Le ag 1 Department asks the Board of Public Works to rescind its a ,ro,
of the mein nt .for Services, By....and Betw �a.�� Citt of outh .aril(
Indiana and County Line Landfill Partnershi for the reasons stated in the
attached memorandum.
For �l an em Ordersi�a��l. ._.. ......
Amount of......._.......... _... E] mIncreasemm $ .��.. .�. ......... .._._.�._ ......... ........� ...............
Decrease ($
Previous Amount $
Increase %
Current Percent of Change: Decrease( %)
New Amount $ _
Increase_........�.........�_............o/o............. .....�...w� w .w�........ w_.w�.
Total Percent of Change: Decrease ( %)
Time Time Extension Amount:
New Completion Date:
1316 COUNTY -CITY BUILDING
227 W.JEFFERSON BOULEVARD
SOIITH BEND. INDIANA 46601-1 930
i ► � ! i 1 1�
March 26, 2019
Cody Humphrey
Republic Services of Indiana, LP
2500 Green Drive
South Bend, IN 46613
RE: County Line Landfill Partnership Services Agreement
Dear Mr. Humphrey:
PHONE 574/235-9251
FAX 574/235-9171
The Board of Public Works, at its meeting held on March 26, 2019, approved the above
referenced agreement regarding disposal of special waste in the amount of $30.28/ton for
2019, $31.19/ton for 2020 and $32.13/ton for 2021.
Enclosed please find the original of the agreement for your signature. Please sign and return
the original agreement to our office and retain a copy for your records.
If you have any further questions regarding this matter, please call this office at (574) 235-
9251.
Sincerely,
Linda M. Martin, Clerk
Enclosure
GARY A. GILOT GENEVIEVE MILLER ELIZABETH A. MARADIK LAURA O'SULL[VAN THERESE J. DORAU
AGREEMENT FOR SERVICES
BY AND BETWEEN THE CITY OF SOUTH BEND, INDIANA
AND COUNTY LINE LANDFILL PARTNERSHIP
THIS AGREEMENT is made effective the 26th day of March 2019 by and between
the City of South Bend, Indiana, a municipal corporation organized and operating under the
laws of the State of Indiana, acting by and through its Board of Public Works ( "City"), and
County Line Landfill Partnership an Indiana Partnership ("Republic") located at 7922 North
Old US Hwy. 31, Argos, IN 46501 (individually a "Party" and collectively the "Parties").
RECITALS
WHEREAS, Republic has experience and expertise in municipal special waste
management that may prove beneficial to the City in these efforts; and
WHEREAS, the City desires to retain the services of Republic to accept municipal special
waste at its Green Tech Transfer & Recycling Facility and Republic is willing to assist the City
in its efforts; and
WHEREAS, the City has determined that due to Republic's experience and expertise, it is
in the best interest of the City retain Republic's services under the terms and conditions set forth
in this Agreement.
NOW THEREFORE, for and in consideration of the mutual covenants and promises
contained herein, the City and Republic hereby agree as follows:
Section 1. Duties of Republic. Republic shall provide for the disposal of Special Waste, as
defined in Section 21.d. of this Agreement, delivered to Republic by the City, as more particularly
described at Exhibit "A" — "Scope oC cps�a("130ibit "A") attached hereto and incorporated herein
(the "Services"), and the parties agree that the terms and conditions set out in Exhibit A are part of this
Agreement. Republic shall execute its responsibilities in a good, safe and workman like manner, and in
compliance with all applicable federal, state, and local laws, rules and permit conditions relating to the
Services.
Section 2. Consideration. Republic will be paid as set forth at E^ ahi bit "A"- Scope o
ryices. Any payment that the City may deny or withhold or delay shall not be subject to penalty
or interest under Indiana Code § 5-17-5.
In addition to sums specified in the Scope of Services, in the event that there is an increase in any
governmental fees, taxes surcharges, or other governmental charges ("Governmental Charges") that are
imposed on the disposal of the City Special Waste such Governmental Charges shall be passed through
to the City.
Section 3. Term and Renewal Option. This Agreement shall be effective commencing
on March 26, 2019 ("Effective Date") and shall end on December 31, 2021 (Expiration Date").
The Parties may mutually agree in writing to extend the term of this Agreement for an additional
period of two (2) years after the Expiration Date, subject to the same terms and conditions set
forth in this Agreement unless otherwise mutually agreed to by the Parties in writing.
Section 4. Assignment; Successors. Republic shall not assign or subcontract the whole
or any part of this Agreement without the prior written consent of the City, which shall not be
unreasonably withheld, delayed, or conditioned; provided, however, that Republic may assign this
Agreement, without consent, to an affiliate of Republic, or as a collateral assignment to any lender
to Republic, or in connection with the sale of Republic's business.
Section 5. Changes in Scope of Services. Republic understands and agrees that it shall
not commence any additional work or change the scope of the Services provided unless authorized
in writing by the City. No claim for additional compensation shall be made by Republic in the
absence of prior written approval of the Parties.
Section 6. Governing Law; Compliance with Laws. This Agreement shall be construed
and interpreted according to the laws of the State of Indiana. Republic agrees to comply with all
applicable federal, state and local laws, rules, regulations and ordinances, and all provisions
required thereby are hereby incorporated herein by reference. Republic shall comply with federal,
state and local law in its hiring and employment practices and policies for any activity covered by
this Agreement. Further, the City shall not be required to pay for Services that are inconsistent
with or in violation of this Agreement nor for any Services performed in violation of federal, state
or local statute, ordinance, rule or regulation
Section 7. Relationship/Independent Contractor. Both parties, in the performance of
this Agreement, shall act in an individual capacity and not as agents, employees, partners, joint
venturers or associates of one another. The employee(s) or agent(s) of one party shall not be
deemed or construed to be the employee(s) or agent(s) of the other party for any purpose
whatsoever. Neither party will assume liability for any injury (including death) to any person(s),
or damage to any property, arising out of the acts or omissions of the agents, employees or
contractors of the other party. Republic shall be solely responsible for providing all necessary
unemployment and workers' compensation insurance for Republic's employees.
Republic is solely responsible for compliance with federal, state and local laws and
regulations relating to taxes and social security payments that may be required to be made in
connection with the compensation provided under this Agreement. The City, however, may file
informational returns with the United States Internal Revenue Service or similar state agency
regarding payment made to Republic in accordance with this Agreement under conditions
imposed by federal, state or local laws applicable to such payment. The City shall provide IRS
Form 1099 if applicable.
Section 8. Entire Agreement. This Agreement sets forth the entire agreement and
understanding between the Parties as to the disposal of Special Waste, and supersedes all prior
discussions, agreements, and understanding of any and every nature between them.
Section 9. Funding Cancellation and Payments. In accordance with I.C. 36-1 -12.5-
5(d)(4), payments by the City are subject to annual appropriation by its fiscal body. When the City
makes a written determination that funds are not appropriated or otherwise available to support
continued performance of this Agreement, this Agreement shall be cancelled. A determination by the
City that funds are not appropriated or otherwise available to support continuation of the performance
2
shall be final and conclusive.
Section 10. Termination. This Agreement may be terminated by either Party for its
convenience by providing the other Party with ninety -days written notice prior to the date of any
anniversary of the Agreement, the first such anniversary being January 1, 2020. Republic shall be
compensated for performance prior to the effective date of termination, but in no case shall total
payment made to Republic exceed the original Agreement price due on Agreement.
Either Party (the "Non -Breaching Party") may, without prejudice to any other remedies
available to it at law or in equity, terminate this Agreement in its entirety in the event the other Party
(the "Breaching Party") has materially breached this Agreement, and such breach has continued for
thirty (30) days (the "Cure Period") after written notice thereof is provided to the Breaching Party by
the Non -Breaching Party, such notice describing the alleged material breach in sufficient detail to put
the Breaching Party on notice of the alleged breach; provided that, if such breach is not susceptible to
cure within the Cure Period, then, the Non -Breaching Party's right to termination shall be suspended
only if and for so long as the Breaching Party has provided to the Non -Breaching Party a written plan
that is reasonably calculated to effect a cure and such plan is reasonably acceptable to the Non -
Breaching Party, and the Breaching Party commits to and does carry out such plan. Upon termination,
Republic shall be compensated for performance prior to the termination effective date, and Republic
shall have no further obligation to perform any Services under this Agreement.
Section 11. Non -Collusion and Acceptance. The undersigned attests, subject to the
penalties for perjury, that he/she is the properly authorized representative, agent, member or officer
of Republic, that he/she has not, nor has any other member, employee, representative, agent or
officer of Republic, directly or indirectly, to the best of the undersigned's knowledge, entered into or
offered to enter into any combination, collusion or agreement to receive or pay, and that he/she has
not received or paid, any sum of money or other consideration on behalf of Republic for the
execution of this Agreement other than that which appears upon the face of this Agreement.
Section 12. E-Verify. Republic affirms under the penalties of perjury that it does not
knowingly employ an unauthorized alien. Republic shall enroll in and verify the work eligibility status
of all its newly hired employees through the E-Verify program as defined in IC 22-5-1.7-3. Republic
shall not knowingly employ or contract with an unauthorized alien. Republic shall not retain an
employee or contract with a person that Republic subsequently learns is an unauthorized alien.
Republic is not required to participate in the E-Verify program should the E-Verify program
cease to exist. Additionally, Republic is not required to participate if Republic is self-employed and
does not employ any employees.
Republic shall require its subcontractors, who perform work under this contract, to certify to
Republic that the subcontractors do not knowingly employ or contract with an unauthorized alien and
that the subcontractors have enrolled and is participating in the E-Verify program. Republic agrees to
maintain this certification throughout the duration of the term of a contract with a subcontractor. The
City may terminate this Agreement for material breach if Republic fails to cure a breach of this
provision no later than thirty (30) days after being notified by the City.
Section 13. Minority and Women's Enterprise Diversity Development. Persons,
partnerships, corporations, associations, or joint ventures awarded a contract by the City through
its agencies, boards, or commissions shall not discriminate against any employee or applicant for
employment in the performance of a City contract with respect to hire, tenure, terms, conditions,
or privileges of employment, or any matter directly or indirectly related to employment because
of race, sex, religion, color, national origin, ancestry, age, or disability that does not affect that
person's ability to perform the work.
In awarding contracts for the purchase of work, labor, services, supplies, equipment,
materials, or any combination of the foregoing including, but not limited to, public works contracts
awarded under public bidding laws or other contracts in which public bids are not required by law,
the City, its agencies, boards, or commissions may consider Republic's good faith efforts to obtain
participation by those Republics certified by the State of Indiana as a Minority Business ("MBE")
or as a Women's Business Enterprise ("WBE") as a factor in determining the lowest, responsible,
responsive bidder.
In no event shall persons or entities seeking the award of a City contract be required to
award a subcontract to an MBE/WBE; however, it may not unlawfully discriminate against said
WBE/MBE. A finding of a discriminatory practice by the City's MBE/WBE Utilization Board
shall prohibit that person or entity from being awarded a City contract for a period of one (1) year
from the date of such determination, and such determination may also be grounds for terminating
the contact for which the discriminatory practice or noncompliance pertains.
Notwithstanding the foregoing, the award and performance of all City contracts shall
comply with applicable federal, state, and local laws.
Section 14. Corporate Authority. The person signing on behalf of Republic represents
that he/she has been duly authorized to execute this Agreement on behalf of Republic and has
obtained all necessary and applicable approvals to make this Agreement fully binding upon
Republic after acceptance by the City.
Section 15. Waste Accepted at Facility. City represents, warrants and covenants that the Special
Waste delivered to Republic at its Facility hereunder will be Acceptable Waste and will not
contain any unacceptable quantity of hazardous materials or substances, radioactive materials or
substances, or toxic waste or substances, as defined by applicable federal, state, local or provincial
laws or regulations. Any Special Waste which does not meet these requirements shall be referred
to as Unacceptable Waste as defined herein. The City shall in all matters relating to the collection,
transportation, and disposal of the Special Waste hereunder, comply with all Applicable Laws.
The word "Facility" shall mean the Green Tech Transfer & Recycling Facility, located at 2500
Green Tech Drive, South Bend, Indiana 46613 or another Transfer Station or landfill as approved
by Republic.
Section 16. City Representations and Warranties. City represents, warrants and
covenants that the Special Waste delivered to Republic hereunder (i) will not contain any Special
Waste that is not specifically described on any Special Waste Profile (including any approved changes
and re -certifications) and any Application, permit and approval that may be applicable to the disposal
of such Acceptable Waste ("Acceptable Waste Documentation"), which is attached hereto or which is
subsequently approved by Republic, (ii) will meet the material description as set forth in Acceptable
Waste Documentation. (iii) will not contain Unacceptable Waste. The Parties may incorporate
additional Special Waste as part of this Agreement if prior to delivery of such Special Waste to
Republic, the City has provided an Application for such Special Waste within the limitation and
conditions contained in Republic's written notice of approval of Special Waste disposal. Title to any
and all Special Waste handled or disposed of by Republic in accordance with applicable law shall at
all times remain with City.
4
Section 17. Rights of Refusal/Rejection of Unacceptable Waste. City shall inspect all
Special Waste at the place(s) of collection and shall remove any and all Unacceptable Waste.
Republic has the right to refuse, or to reject after acceptance, any load(s) of Special Waste delivered
to its Facility if it can demonstrate unequivocally to the City's satisfaction that it contains Unacceptable
Waste and was transported to the Facility by the City or on the City's behalf. Republic shall have the
right, but not the obligation, to inspect all vehicles and containers brought to its Transfer Station in
order to determine whether they contain Unacceptable Waste. Republic's exercise, or failure to
exercise, its rights hereunder shall not operate to relieve City of its obligation to deliver only
Acceptable Waste to the Facility or prevent Republic from exercising any of its other rights and
remedies under this Agreement, including those set out in this Section. If the City agrees with
Republic's proof regarding the presence of Unacceptable Waste in the City's Special Waste then the
City shall be responsible for and bear all reasonable expenses and damages incurred by Republic, as a
result of such Unacceptable Waste and in the reloading and removal of such Unacceptable Waste
disposed of at the Facility by the City.
Section 18. Limited License to Enter. The Agreement provides the City with a license to
enter the Facility for the limited purpose of, and only to the extent necessary for off-loading Acceptable
Waste at the Facility in the manner directed by Republic. Except in an emergency, the City's personnel
shall not leave the immediate vicinity of their vehicle. After off-loading the Acceptable Waste, the
City's personnel shall promptly leave the Facility. Under no circumstances shall the City or its
personnel engage in any scavenging of waste or other materials at the Facility. Republic reserves the
right to make and enforce reasonable rules and regulations concerning the operation of the Facility the
conduct of the drivers and others on the Facility premises, quantities and sources of waste, and other
matters necessary or desirable for the safe, legal and efficient operation of the Facility including, but
not limited to, speed limits on haul roads imposed by Republic, and the wearing of hard hats and other
personal protection equipment by all individuals allowed on the Facility premises. The City agrees to
conform to such rules and regulations as they may be established and amended from time to time.
Republic may refuse to accept waste from and shall deny any entrance license to any of City's
personnel whom Republic believes is under the influence of alcohol or other chemical substances. The
City shall be solely responsible for its employees and subcontractors performing their obligations in a
safe manner when at Republic's Facility.
Section 19. Driver's Knowledge and Authority. The City represents, warrants and covenants
that its drivers who deliver waste to Republic's Facility have been advised by the City of Republic's
prohibition on deliveries of hazardous materials or substances, radioactive materials or substances or
toxic waste or substances or any other Unacceptable Waste to the Facility, of Republic's restrictions
on deliveries of Special Waste to the Facility, of the definitions of Hazardous Waste and Hazardous
Substances as provided by applicable federal, state and local law, rules and regulations and Special
Waste as provided herein, and of the terms of the license to enter the Facility, as specified in this
Agreement.
Section 20. Insurance. The City is a municipal corporation organized under the laws of the
State of Indiana. The City maintains blanket insurance coverage over real and personal property and is
covered by a non -reverting insurance premium and liability reserve fund created by the City of South
Bend, Ordinance No. 6657-79, pursuant to Indiana Code 34-13-3-4, as amended from time to time. Under
said statute, the City's liability is limited to:
a. Seven Hundred Thousand Dollars ($700,000) for a cause of action that accrues on or after
January 1, 2008; and
b. For injury to or death of all persons in that occurrence, Five Million Dollars ($5,000,000); and
c„ A governmental entity or an employee of a governmental entity acting within the scope of
employment is not liable for punitive damages.
Section 21. Definitions.
a. Acote Waste — Only waste that satisfies each of the following criteria shall be
accepted for disposal at the Facility ("Acceptable Waste"): (a) the waste conforms to the
description set forth in the Acceptable Waste Documentation; (b) the waste does not contain any
Unacceptable Waste; (c) the waste is accurately reflected on any Special Waste Profile(s) as
approved by Republic; (d) the waste is acceptable for disposal at the Facility under all Applicable
Laws; and (e) the transportation to and disposal of the waste at the Facility is otherwise in
accordance with this Agreement. Title to and liability for any and all Acceptable Waste handled
or disposed of by Republic shall at all times remain with the City.
b. A�icabIP LA—Nv - Applicable federal, state and local laws, regulations, ordinances,
rules, permits, licenses, and governmental orders or directives.
C. Hazardous Waste —Waste that is radioactive, volatile, corrosive, highly flammable,
explosive, biomedical, infectious, biohazardous, toxic or listed or characteristic Hazardous Waste as
defined by federal, state, provincial or local law or any otherwise regulated waste. Hazardous Waste
shall include, but not be limited to, any amount of waste listed or characterized as hazardous by the
United States Environmental Protection Agency or any state agency pursuant to the Resource
Conservation and Recovery Act of 1976, as amended, and including future amendments thereto, and
any other applicable federal, state or local laws or regulations.
d. Special Waste"'- Waste which is nonhazardous but, because of its physical characteristics,
chemical make-up, or biological nature, requires either special handling, disposal procedures including
liquids for solidification at the landfill, documentation, and/or regulatory authorization, or poses an
unusual threat to human health, equipment, property, or the environment. Special Waste includes, but
is not limited to:
(i) Waste generated by an industrial process or a pollution control process;
(ii) Waste which may contain residue and debris from the cleanup of spilled
petroleum, chemical or commercial products or wastes, or contaminated
residuals;
(iii) Waste which is nonhazardous as a result of proper treatment pursuant to
Subtitle C of the Resource Conservation and Recovery Act of 1976 ("RCRA");
(iv) Waste from the cleanup of a facility which generates, stores, treats, recycles or
disposes of chemical substances, commercial products or wastes;
(v) Waste which may contain free liquids and requires liquid waste solidification;
(vi) Containers that once contained hazardous substances, chemicals, or insecticides
so long as such containers are "empty" as defined by RCRA;
(vii) Asbestos containing or asbestos bearing material that has been properly secured
under existing Applicable Law;
(viii) Waste containing regulated polychlorinated biphenyls (PCBs) as defined in the
Toxic Substances Control Act (TSCA);
(ix) Waste containing naturally occurring radioactive material (NORM) and/or
technologically -enhanced NORM (TENORM); and
(x) Municipal or commercial solid waste that may have come into contact with any
of the foregoing.
e. Transfer Station — the Green Tech Transfer & Recycling Facility, operated by Republic,
located at 2500 Green Tech Drive, South Bend, Indiana 46613.
f. Unac:c pt rlaI "w ate — Waste containing any unacceptable quantity of hazardous
materials or substances, radioactive materials or substances, or toxic waste or substances, as
defined by applicable federal, state or local or provincial laws or regulations.
Section 22. Force Majeure/Transfer Station Closure. Neither Party shall be in breach of
its obligations under this Agreement (other than payment obligations) if and to the extent that it is
prevented from carrying out those obligations by a Force Majeure Event except to the extent that
the relevant breach of its obligations would have occurred even if the Force Majeure Event had not
occurred (in which case this Section 22 shall not apply to that extent).
As soon as reasonably practicable following the date of commencement of a Force Majeure Event,
and within a reasonable time following the date of termination of a Force Majeure Event, any Party
invoking it shall submit to the other Party reasonable proof satisfactory to the other Party of the
nature of the Force Majeure Event and of its effect upon the performance of the Party's obligations
under this Agreement.
As used in this Agreement, a Force Majeure Event is any failure or delay in performance by a Party
under this Agreement (other than a failure or delay on the part of City in making a payment to
Republic called for by this Agreement) due to contingencies beyond Republic's reasonable control,
including, but not limited to, riots, terrorist acts, compliance with Applicable Laws, fires, bad
weather and acts of God.
Notwithstanding anything to the contrary in this Agreement, Republic shall have the right to close
the Transfer Station, in whole or in part, either temporarily or permanently, at any time for any
reason. The prior sentence notwithstanding, Republic shall provide City with six (6) months
advance notice of any permanent closure of the Transfer Station. Upon any closure of the Transfer
Station lasting more than thirty (30) days, both City and Republic shall have the right to terminate
this Agreement.
Section 23. Indemnification. City shall indemnify, defend and hold harmless Republic
and its subsidiaries, affiliates and parent corporations, as applicable and their respective officers,
directors, lenders, employees, subcontractors and agents from and against any and all claims,
suits, losses, liabilities, assessments, damages, fines, costs and expenses, including reasonable
attorneys' fees arising under federal, state or local laws, regulations or ordinances, or relating to
the (a) the disposal of any Unacceptable Waste at the Facility, as identified pursuant to Section
15; (b) the reloading and/or removal of Unacceptable Waste at the Facility; (c) any penalties,
fines or remediation activities incurred by or imposed as the result of the disposal of
Unacceptable Waste, as identified pursuant to Section 15; (d) any increased inspection, testing,
study and analysis costs made necessary due to reasonable concerns of Republic as to the content
of the waste transported and/or disposed of by or on behalf of the City at the Facility following
discovery of potentially Unacceptable Waste; and (e) Republic's inability to use the Facility due
to the presence of Unacceptable Waste, as identified pursuant to Section 15, including without
limitation any consequential damages. Republic may also, in its sole discretion, require City to
promptly remove the Unacceptable Waste, as identified pursuant to Section 15, at City's sole
expense. This indemnification and other obligations stated in this paragraph shall survive the
termination of this Agreement.
Section 24. Continuing Compliance. The City has a continuing obligation to inform
Republic of any new information, or information not previously provided to Republic by City
which may affect the acceptability of the waste by Republic. Further, the City shall comply with
all Republic's requests for evidence of City's continuing compliance with the terms of the
Agreement including but not limited to the following: (i) providing new, updated Special Waste
profiles on the waste(s) offered for disposal or, (ii) providing appropriate certification that the
waste being offered for disposal is accurately reflected by the appropriate Special Waste Profile
or, (iii) re -sample the waste at City's expense if reasonable cause exists as to its acceptability
under the terms of this Agreement or, (iv) allow Republic to re -sample the waste at City's
expense if reasonable cause exists as to its acceptability under the terms of this Agreement or any
Acceptable Waste Documentation.
Section 25. Miscellaneous. (a) Republic shall have no confidentiality obligation with respect
to any Special Waste. (b) Unless specifically provided for in this Agreement, Republic provides no
guarantees or warranties with respect to the Services. (c) Republic may provide any of the Services
through any of its affiliates or subcontractors, provided that Republic shall remain responsible for the
performance of all such services and obligations in accordance with this Agreement. (d) This Agreement
shall not be modified or amended except by written agreement duly executed by the parties. (e) If any
provision of this Agreement is declared invalid or unenforceable, it shall be modified so as to be valid
and enforceable as most nearly to retain the intent of the parties. If such modification is not possible,
such provision shall be severed from this Agreement. In either case, the validity and enforceability of
the remaining provisions of this Agreement shall not in any way be affected thereby. (f) Failure or delay
by either Party to enforce any provision of this Agreement will not be deemed a waiver of future
enforcement of that or any other provision. (g) If any litigation is commenced under this Agreement,
the Parties waive the right to a jury trial. (h) The Parties agree that electronic signatures are valid and
effective, and that an electronically stored copy of this Agreement constitutes proof of the signature and
contents of this Agreement, as though it were an original. (i) This Agreement may only be enforced by
the Parties, and there are no third -party beneficiaries of its terms and conditions. This Agreement shall
not limit, in any manner, Republic's legal rights as to third parties.
[Signatures on Following Page]
IN WITNESS WHEREOF, the parties, through their duly authorized representatives, have caused
this Agreement to be signed on the date stated above that party's signature, and have read and
understand the foregoing terms of this Agreement and do, by their respective signatures hereby
agree to its terms.
2019 DATE: 3 f.)� , 2019
CITY OF SOUTH BEND, INDIANA
BOARD OF PUBLIC WORKS
Ga G�lo� 1'�c�,dent
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ry de•nt
.._ ,...._ ��.. ___.
Elizabeth A. Maradik, Member
Genevieve E. Miller, Member
Therese J. Dorau, Member
Ate,
I a"Ur a O'Sullivan, Member
ATTEST:
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l
Ll da. Martin, Clerk
Q7
LIII �".. `111
Scope of Services
I. The City of South Bend ("City") or its agent will deliver its Special Waste to the
transfer station owned by Republic Services of Indiana, Limited Partnership, ("Republic") and known
as Green Tech Transfer & Recycling Facility, located at 2500 Green Tech Drive, South Bend, Indiana
46613.
This Special Waste shall be accepted at the Green Tech Transfer & Recycling Facility, during
normal business hours (currently 7:00 a.m. to 4:30 p.m. Monday through Friday, except on a
holiday recognized by the Transfer Station, and 7:00 a.m. to 3:00 p.m. on a Saturday following a
holiday), as the Transfer Station's schedule may change from time to time, for a per ton tipping
fee of no more than:
II. Republic shall weigh all Acceptable Waste brought to the Transfer Station and the
weight so determined shall be final and conclusive on both City and Republic.
III. The City shall pay each of Republic's invoices without offset within thirty (30) days of
receipt Republic's invoice. Payments may be made by check or ACH only; no purchasing cards or
credit cards will be accepted.
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