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HomeMy WebLinkAboutPSA - Disposal Agreement Setting Per Ton Tipping Fee – Republic Services of IN LP1316 COUNTY -CITY BUILDING 227 W. JEFFERSON BOULEVARD SOUTH BEND, INDIANA 46601-1830 PHONE 574/235-9251 FAx 574/235-9171 CITY OF SOUTH BEND JAMES MUELLER, MAYOR BOARD OF PUBLIC WORKS December 12, 2023 Ms. Katherine Johnson Republic Services of Indiana LP 57820 Charlotte Ave. Elkhart, IN 46517 RE: Professional Services Agreement Dear Ms. Johnson: At its December 12, 2023 meeting, the Board of Public Works approved the above referenced agreement for a 2024 one (1) year disposal agreement setting the per ton tipping fee for Solid Waste & Street Sweepings with an option to extend two (2) more years. Enclosed please find a copy of the agreement for your records. If you have any further questions, please call this office at (574) 235-9251. Sincerely, /s/ Theresa Heffner Theresa Heffner, Clerk Enclosures TH/lh ELIZABETH A. MARADIK JOSEPH R. MOLNAR GARY A. GILOT MURRAY L. MILLER BRIANA MIcou AGREEMENT FOR SERVICES BY AND BETWEEN THE CITY OF SOUTH BEND, INDIANA AND REPUBLIC SERVICES OF INDIANA, LIMITED PARTNERSHIP THIS AGREEMENT is made effective the I" day of January 2024 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 Republic Services of Indiana, Limited Partnership, a foreign limited liability company licensed to do business in the State of Indiana ("Contractor') with offices at 2500 Green Tech Drive, South Bend, Indiana 46613 (individually a "Party" and collectively the 'Parties"), RECITALS WHEREAS, Contractor has experience and expertise in municipal solid waste management that may prove beneficial to the City in these efforts; and WHEREAS, the City desires to retain the services of Contractor to accept municipal solid waste at its Green Tech Transfer & Recycling Facility and Contractor iswilling to assist the City in its efforts; and WHEREAS, the City has determined that due to Contractor's experience and expertise, it is in the best interest of the City retain Contractor'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 Contractor hereby agree as follows: Section 1. Duties of the Contractors. The Contractor shall provide the services which are more particularly described at Exhibit 'A"— Scope ofServices ( " Ex h i b i t " A " ) attached hereto andincorporated herein (the "Services"), and the parties agree that the terms and conditions set out in ExhibitA are partof thisAgreement. The Contractor shall execute its responsibilities in a good, safe and workman like manner, and in compliance withal[ applicable federal, state, and local laws, rules and permit conditions relating to the Services. Section 2. Consideration. The Contractor will be paid as set forth at Echibi/'A"- Scope ofServices. 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. The parties agree and understand that there shall be no late payment penalty fees associated with this Agreement. 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 of South Bend solid waste, such Gov emm ental Charges shall be passed through to the City of South Bend. Contractor must notify the City prior to the implementation of any additional fees, taxes or surcharges or such fees, taxes or surcharges will not be accepted. Section 3. Term and Renewal Option. This Agreement shall be effective for a period of one (1) year commencing on January l . 2024 ("Effective Date') and shall end on December 31, 2024 (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. The Contractor shall not assign or subcontract the whole or any part of this Agreement without the prior written consent orthe City, which shall not be unreasonably withheld, delayed, or conditioned; provided, however, that Contractor may assign this Agreement, without consent, to an affiliate of Contractor, or as a collateral assignment to any lender to Contractor, or in connection with the sale of Contractor's business. Section 5. Changes in Scope of Services. The Contractor understands and agrees that it shall not commence any additional work or change the scope of the Services providedunless authorized in writing by the City. No claim for additional compensation shall be made by Contractor 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. The Contractor 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. Contractor shallcomply 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 ofthis Agreement nor for any Services performed in violation of federal, state or local statute, ordinance, role 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 subcontractors of the other party. The Contractor shall be solely responsible for providing all necessary unemployment and workers' compensation insurance forthe Contractor's employees. Contractor 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 Contractor 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 subject matterhereof, and merges 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 arc subject to annual appropriation by its fiscal body. When die 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 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, 2025. The Contractor shall be compensated forperformance prior to the effective date of termination, but in no case shall total payment made to Contractor 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 breachedthis Agreement, and such breach has continued for thirty (30) days (the "Cure Period") after written noticethereof 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 allegedbreach; 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 torso long as the Breaching Party has providedto 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 Parry commits to and does c any out such plan. Upon termination, Contractor shall be compensated for performance prior to the termination effective date, and Contractor 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 property authorizedrepresentative, agent, member or officer of the Contractor, that he/she has not, norhas any other member, employee, representative, agent or officer of the Contractor, 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 Contractor for the execution of this Agreement other than that which appears upon the face of this Agreement. Section 12. E-Verify. The Contractor affirms under the penalties of perjury that he/sheln does not knowingly employ an unauthorized alien. The Contractm shall enroll in and verify the work eligibility status of all his/her/its newly hired employees through the E-Verify program as defined in IC 22-5-1.7-3. The Contractor shall not knowingly employ or contract with an unauthorized alien. The Contractor shall not retain an employee or contract with a person that the Contractor subsequently learns is an unauthorized alien. The Contractor is not required to participate in the E-Verify program should the E-Verify program cease to exist. Additionally, the Contractor is not required to participate if the Contractor is self-employed and does not employ any employees. The Contractor shall require his/her/its subcontractors, who perform work under this contract, to certify to the Contractor that the subcontractor does not knowingly employ or contact with an unauthorized alien and that the subcontractor has enrolled and is participating in the E- Verify program. The Contractor agrees to maintain this certification throughout the duration of the term of a contract with a subcontractor. The City may terminate for material breach if the Contractor 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 of South Bend 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, to Ms, 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 the Contractor's good faith effortsto obtain participation by those Contractors celtified 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 MBEIWBE; 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 the Contractor represents that he/she has been duly authorized to execute this Agreement on behalf of the Contractor and has obtained all necessary and applicable approvals to make this Agreement fully binding upon the Contractor after acceptance by the City. Section 15. Title. Title to Municipal Solid Waste ( NSW") shall pass to Contractor when received at the Transfer Station by Contractor. Title to and liability for any Excluded Waste shall at no time pass to Contractor. Section 16. Excluded Waste. Contractor has the rightto refuse, or to reject afteracceptance, any load(s) of MSW delivered to its Transfer Station if it can demonstrate unequivocally to the City's satisfaction that it contains Excluded Waste and was transported to the Transfer Station by the City or on the City's behalf. The contractor 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 Excluded Waste. Contractor'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 Transfer Station or prevent Contractor from exercising any of its other rights and remedies under this Agreement, including those set out in this Section. If the City agrees with the Contractor's proof regarding the presence of Excluded Waste in the City's MSW, then the City shall be responsible for, and bear all reasonable expenses and damags incurred by the Contractor, as a result of such Excluded Waste and in the reloading and removal of such Excluded Waste disposed of at the Transfer Station by the City. Section 17. Definitions. a. Acceptable Waste — All Solid Waste and Street Sweepings that is authorized to be disposed of at the Transfer Station under Applicable Law and that is not Excluded Waste. b. Applicable Law - Applicable federal, state and local laws, regulations, ordinances, rules, permits, licenses, and governmental orders or directives. C. Bulky Waste — Stoves, refrigerators, water tanks, washing machines, furniture and other similar items. d. Excluded Waste— Excluded Waste is all Bulky Waste; Hazardous Waste; Special Waste (the disposal of Special Waste shall be addressed in a separate written agreement that is mutually acceptable to the parties); sewage, earth or material used to fill land in accordance with construction codes; mining residues; slag; dissolved or suspended solids in industrial wastewater effluents which are not acceptable for disposal in sanitary sewage treatment system; and any oflter waste that due to its characteristics or nature (including but not limited to odor and dustiness) Contractor, in its sole discretion, determines is not appropriate for acceptance at the Transfer Station. e. Hazardous Waste —A form ofExcludedWasteandis defined asanyradioactive,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. f. Municipal Solid Waste or MSW - All nonhazardous Acceptable Waste collected by the City, or on its behalf, that is not excluded by this Agreement. g. Solid Waste - Useless, unwanted or discarded materials with insufficient liquidcontent to be free -flowing, that result from domestic, industrial, commercial, agricultural, governmental and community operations which require proper storage, collection, transportation and disposal to prevent environmental pollution that may adversely affect public health, safety and welfare. h. Special Waste — Any nonhazardous Solid Waste which, 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, orposes an unusual threat to human health, equipment, property, or the environment Special Waste includes, but is not limited to: (1) 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, orinsecticides 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 polychlorinatedbiphenyls (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 orcommercial solidwastethat mayhavecome into comactwith any of the foregoing. (xi) Transfer Station — the Green Tech Transfer& Recycling Facility, operated by Contractor, located at 2500 Green Tech Drive, South Bend, Indiana 46613. Section 18. Force Majeure/Transfer Station Closure. Neither Party shall be in breach of its obligations under this Agreement (other than paymentobligations) 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 relevambreach of its obligations would have occurred even if the Force Majeure Event had not occurred (in which case this Section 18 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 Lot cc Majeure Event, any Patty invoking it shall submit to the other Party reasonable proof satisfactory to the other Party of the nature of the Force Majeurc Event and of its effectupon the performance of the Patty's obligations under this Agreement. As used in this Agreement, a Force Majeure Event is any failure ordelay in performance by a Parry under this Agreement (other than a failure or delay on the part of City in making a payment to Contractor called for by this Agreement) due to contingencies beyond Contractor'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, Contractor shall have the right to close die Transfer Station, in whole or in part, either temporarily or permanently, at any time for any reason. The prior sentence notwithstanding, Contractor 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 Contractor shall have the right to terminate this Agreement. Section 19. Miscellaneous. (a) Contractor shall have no confidentiality obligation with respect to any Municipal Solid Waste. (b) Unlessspecifically provided form this Agreement, Contractor provides no guarantees or warranties with respect to the Services. (c) Contractor may provide any of the Services through any of its affiliates or subcontractors, provided that Contractor 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 ajury 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. (1) This Agreement may only be enforced by the Parties, and there are no third -party beneftciariesof its terns and conditions. This Agreement shall not limit, in any manner, Contractor's legal rights as to third parties, such as the right to pursue a third -party generator of Excluded Waste for any liabilities or other losses incurred by Contractor in connection with such Excluded Waste. [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 terns of this Agreement and do, by their respective signatures hereby agree to its terms. DATE: I l 2Q 2- REPUBLIC SERVICES OF INDIANA, LIMITED PARTNERSHIP ignature �-CA+�n '^ 16 lws 6e4ll� Printed Name and Title /W Nur 5 3 0 0 C'k 6t V 16-k- 7�-vt Street Address '�A �(A'/; Tv � v-1-I- City, State Zip =} 31 331 5- Telephone Fax f CITY OF SOUTH BEND, INDIANA BOARD OF PUBLIC WORKS Elizabeth A. Maradik, President Joseph R. Molnar, Vice President Gary A. Gilot, Member Briana Micou, Member Murray L. Miller, Member ATTEST: Theresa M. Heffner, Clerk Date: December 12, 2023 EXHIBIT ".A" Scope of Services I. The City of South Bend ("City") or its agent will deliver no less than eight -five percent (85%) of its Municipal Solid Waste to the transfer station owned by Republic Services of Indiana, Limited Partnership, ("Contractor") and known as Green Tech Transfer & Recycling Facility, located at 2500 Green Tech Drive, South Bend, Indiana 46613. The volume of material to be collected by the City and delivered by die City or its agent to the Green Tech Transfer & Recycling Facility is estimated to be Two Thousand Two Hundred (2,200) tons per month, or no less than Six Thousand S ix Hundred (6,600) tons per quarter. There shall be no late payment penalty fees associated with this Agreement. This Municipal Solid Waste and Street Sweeping 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: Solid Waste Dates 1 Per Ton Timimp Fee Janua 1 2024 — December 31, 2024 1 $42.00 Rates for Optional Renewal Terms: Dates Per Ton Tipping Fee January1 2025-December 31 2025 $43.26 or less January I. 2026-December 31 2026 $44.56 or less Rates for Optional Renewal Terms: Dates 1 Per Ton Tipping Fee January 1 2025 — December 31 2025 $22.66 or less Januaty 1 2026 — December 31 2026 $23.34 or less II. Contractor shall weigh all Acceptable Waste brought to the Transfer Station and the weight so determined shall be final and conclusive on both City and Contractor. III. The City shall pay each of the Contractor's invoices without offset within thirty (30) days of receipt of the Contractor's invoice. Payments may be made by check or ACH only; no purchasing cards or credit cards will be accepted. BOARD OF PUBLIC WORKS AGENDA ITEM REVIEW REQUEST FORM Date 12/1/23 Department PW/Solid Name Kelly Smith Waste BPW Date 12/12/23 Phone Extension 5795 Review and Approval Required Prior to Submittal to Board Diversity Compliance ❑ Officer Name and Inclusion Officer BPW Attorney ❑ Attorney Name Dept. Attorney ❑ Attorney Name Purchasing ❑ Check the Appropriate Item I Professional Services Agreement ❑ Contract ❑ Open Market Contract ❑ Bid Opening ❑ Quote Opening ❑ Proposal Opening ❑ Chg. Order, No. n Other: Company or Vendor Name New Vendor MBE/WBE Contractor Project Name Project Number Funding Source Account No. Amount Terms of Contract ❑ Amendment/Addendum ❑ Bid Award ❑ Quote Award ❑ C/O & PCA No. ❑ Traffic Control Information is Services of Indiana All Submissions U Proposal ❑ Special Purchase, QPA ❑ Req. to Advertise ❑ Reject Bids/Quotes ❑ PCA ❑ Resolution Ease./Encroach Yes U If Yes, Approved by Purchasing ❑ Title Sheet ® No MBE ❑ WBE Completed E-Verify Form Attached ❑ Yes No Municipal Solid Waste/ Disposal Solid Waste Budget 610-06-603-512-43 9010 See Exibit A SCoae of Services One year waste disposal service agreement with the option to extend for two vears. Purpose/Description Agreement setting per ton tipping fee for municipal solid waste and street sweepings from the City of South Bend to the Greentech Transfer and Recycling facility operated by Republic Services. For Change Orders Only Amount of ❑ Increase $ ❑ Decrease ($ ) Previous Amount Current Percent of Change: New Amount Increase % Decrease ( %) Increase % Total Percent of Change: Decrease ( %) Time Extension Amount: