No preview available
HomeMy WebLinkAboutC13-257 WM Recycle America Agreement AGREEMENT BETWEEN EAGLE COUNTY, COLORADO AND WM RECYCLE AMERICA, L.L.C. THIS AGREEMENT ("Agreement"), dated this day of ' ""a us+ , 2013 is between Eagle County, Colorado, ("County") and WM Recycle America, L.L.C., a Delaware limited liability company with its principal place of business at 2400 West Union Avenue, Englewood, CO 80110 ("Contractor"). WITNESSETH: WHEREAS, County desires to hire a vendor to broker and transport baled recycled material to end-user/mill from the Eagle County Recycled Materials Recovery Facility (MRF) located at 605 Ute Creek Road,Wolcott, Colorado. WHEREAS, Contractor is authorized to do business in the State of Colorado, has experience and expertise in the transportation and brokering of recycled materials and wishes to provide said services to County; and WHEREAS, County and Contractor intend by this Agreement to set forth the scope of the responsibilities of Contractor in connection with the services provided and related terms and conditions to govern the relationship between Contractor and County in connection with this Agreement. AGREEMENT NOW, THEREFORE, in consideration of the foregoing recitals and the following promises, County and Contractor agree as follows: 1. SCOPE OF WORK: The following will collectively be referred to as the"Work" or "Services": Eagle County will provide the necessary equipment and staff to load commodities on outbound trucks to full visible capacity to achieve 40,000 pounds minimum shipping weight and trailers shall be loaded or caused to be loaded in accordance with the most current ISRI/AF&PA Shipping Guide. Grades for fiber shall be in accordance with ISRI/AF&PA specifications. The trucks will be provided by Contractor. Contractor will configure the trucks according to the type of material being shipped, as follows: 1. Cardboard- County will load cardboard onto a van or flatbed semi-trailer provided by Contractor; loads must be fully tarped by Contractor prior to leaving the MRF. 2. Tin/steel- County will load tin/steel onto a flatbed semi-trailer provided by Contractor; loads must be fully tarped by Contractor prior to leaving the MRF. 3. Plastic- County will load plastic into a van trailer provided by Contractor. 1 t 1, 4. Aluminum- County will load aluminum into a van trailer provided by Contractor. 5. Paper- County will load paper into a spot van trailer that Contractor will be required to swap out when full. The MRF staff will notify the Contractor when the spot trailer is full or there is a request for a truck for another commodity. The Contractor will be responsible for providing brokerage and truck scheduling for the following baled commodities while keeping the best interest of Eagle County in mind. The following are the commodities ("Commodities"): #1, #2 and #3-#7 plastics containers Tin/Steel containers #11 OCC(old corrugated cardboard) UBC (used beverage cans) #8 ONP (old newspaper) 6. During the term of the Agreement, Contractor shall be the exclusive provider of the Services with the exception of glass recycling which shall be provided by a vendor other than Contractor. County agrees to provide one hundred percent (100%) of County's old cor ugated containers ("Corrugated Recyclables") to Contractor. Title to Corrugated Re yclables and Commodities provided by County to Contractor is transferred to Contractor up n Contractor's receipt or collection unless otherwise provided in this Agreement or applicable law. 2. !CONTRACTOR'S REPRESENTATIONS: A. Contractor is an independent contractor, and nothing herein contained shall constitute or designate the Contractor or any of the Contractor's employees or agents as employees or agents of the County. B. Contractor has familiarized itself with the nature and extent of the contract documents, work, locality, and with all local conditions, and federal, state, and local laws, ordinances, rules, permits and regulations that in any manner may affect cost, progress, or performance of the Work. C. I No assignment or any sub-contracted work will be allowed without prior approval from Eagle County. Any Work performed by a sub-contractor will be subject to the same conditions applied to the Contractor and the Contractor shall be responsible to the County for such sub-contractors performance. D. (Contractor will provide a truck(s) and/or trailer(s) suitable to haul the quantity of Commodities specified on a pre-arranged date and time for delivery to the commodity mill or end user. E. ',Contractor will be responsible for transporting all materials received from the MRF. Contractor will ensure that the transporter has all required permits and licenses in (accordance with local, state and federal regulations for the transportation of materials received from the MRF. Contractor shall also ensure that any transporter utilized meets all insurance requirements as required by Eagle County. it 2 F. Contractor will assume possession of the materials the moment the materials are loaded onto the Contractor's vehicles. Contractor will manage all materials received from the MRF in accordance with all applicable local, state and federal regulations for the transportation, storage and recycling of said materials. G. Contractor shall ensure that all insurance requirements are current during the term of this Agreement and any extensions. 3. CONTRACT PRICE A. County shall have no obligation to pay any amount to Contractor for the Work hereunder but Contractor may retain the amounts set forth in paragraph 3B below. No adjustments shall be made without sufficient documentation and proof from Contractor and any adjustment shall require County's prior written consent and approval. In the event of a dispute concerning any adjustment during the term hereof, Contractor shall pay County the full amount due for the Work as if no adjustment were being claimed by Contractor and the matter may be referred to a mediator in Eagle County, Colorado with each party to pay their own costs associated with participating in such mediation. B Contractor agrees to act as a broker for Commodities collected by it from County. The parties agree that Contractor will sell the Commodities for the best available price. Compensation to County shall be determined through a published index or Waste Management purchase order (PO) as set forth below. Contractor shall compensate County for the Commodities as follows: COMMODITY REBATE STRUCTURE PER TON #11 OCC FOB Price listed on Southwest Domestic OBM High plus $5.50 #8 ONP ' -F0&Price listed on LA Export OBM High minus $100 UBC Waste Management PO sell price less 7% #1 PET/PETE Waste Management PO sell price less 7% #2 HDPE-Color Waste Management PO sell price less 7% #2 HDPE- Natural Waste Management PO sell price less 7% 3-7 Mixed Plastics Waste Management PO sell price less 7% Tin/Steel Waste Management PO sell price less 7% Where the rebate per ton is stated Regional OBM Highside, that shall mean the "OBM" High prices as published by RISI Pulp and Paper Weekly, for the month of shipment, per ton. County acknowledges that the value of the Recyclables may be negative but in no event shall County owe Contractor for any of the Work to be performed hereunder unless an adjustment is agreed to in writing by the parties. Contractor agrees to maintain accurate business records, books, and account information relating to Recyclables purchased by Company under this Agreement. All such records, books and information may be audited or inspected by County representatives at reasonable times upon reasonable notice. All Commodities shall be weighed before leaving the MRF. For OCC and ONP where the prices are determined from a published index, Contractor shall provide County with the pricing from the published index on a monthly basis. For UBC, 3 1 PET, #2 HDPE- Color and Natural, 3-7 Mixed Plastics and Tin/Steel Contractor shall Provide monthly PO's to County and County may contact Contractor for a daily price. Contractor shall pay County for Commodities collected by Contractor based upon the weight established at the third party's location that is purchasing the Recyclables and using the methodology described above. Contractor shall pay County within thirty(30) days of removal from the MRF. Contractor shall provide County with proof(in a form acceptable to the County) of the market conditions and calculation establishing the each payment made to County. County acknowledges that the pricing may fluctuate based upon market conditions. C. The parties acknowledge that County shall have no obligations under this Agreement, nor shall any payments be made to Contractor in respect of any period after December 31, 2013 without an appropriation therefore by County in accordance with a budget adopted Icy the Board of County Commissioners in compliance with Article 25, Title 30 of the Colorado Revised Statutes, the Local Government Budget Law (C.R.S. § 29-1-101 Qt.seq.) and the TABOR Amendment(Colorado Constitution, Article X, Sec. 20). 4. TERM A. The Work will commence upon notification by the Eagle County Solid Waste & Recycling *acility to Contractor on or about July 31, 2013. B. This Agreement commences on July 31, 2013 and continues through and including December 31, 2013. This Agreement may be renewed annually by mutual written agreement to renew between County and Contractor on the same terms and conditions as set forth herein. 5. INDEMNIFICATION: The Contractor shall, to the fullest extent permitted by law, indemnify and hold harmless County and any of its officers, agents and employees against any losses, claims, damages or liabilities for which County or any of its officers, agents, or employees may l ecome subject to, insofar as any such losses, claims, damages or liabilities arise out of, irectly or indirectly, this Agreement, or are based upon any performance or onperformance by Contractor or any of its employees or subcontractors hereunder; and ontractor shall reimburse County for any and all attorney fees and costs, legal and other expenses incurred by County in connection with investigating or defending any Such loss, claim, damage, liability or action. This indemnification shall not apply to claims ty third parties against the County to the extent that the County is liable to such third party for such claims without regard to the involvement of the Contractor. 6. Intentionally Omitted. 7. MISCELLANEOUS: A. This Agreement shall be governed and construed in accordance with the laws of Colorado. Venue for any action arising out of any dispute pertaining to this Agreement Shall be in the State of Colorado, District Court in and for Eagle County, Colorado. 4 B. This Agreement, and the rights and obligations created hereby, shall be binding upon and inure to the benefit of County and Contractor and their respective successors and assigns. Nothing herein expressed or implied is intended or should be construed to confer or give to any person or entity other than County or Contractor and their respective successors and assigns, any right, remedy or claim under or by reason hereof or by reason of any covenant or condition herein contained. C. If any portion of this Agreement is held invalid or unenforceable for any reason by a court of competent jurisdiction, such portion shall be deemed severable and its invalidity or its unenforceability shall not affect the remaining provisions; such remaining provision shall be fully severable and this Agreement shall be construed and enforced as if such invalid provision had never been inserted into this Agreement. D. This Agreement may be amended, modified or changed only by written agreement duly authorized and executed by both County and Contractor. This Agreement represents the full and complete understanding of County and Contractor and supersedes any prior agreements, discussions, negotiations, representations or understandings of County and Contractor with respect to the subject matter contained herein. E. The parties hereto agree that neither has made or authorized any agreement with respect to the subject matter of this instrument other than expressly set forth herein, and no oral representation, promise, or consideration different from the terms herein contained shall be binding on either party, or its agents or employees hereto. F. County may terminate this Agreement, in whole or in part, for any reason, at any time, with or without cause, upon providing thirty(30) days' written notice to Contractor. Upon such termination, Contractor shall immediately pay County for any Commodities collected for which Contractor has not yet paid to County. Contractor may terminate this Agreement, for cause, upon providing thirty (30) days' written notice to County. For purposes of this paragraph, for cause means that Contractor has received from County loads that are light or that do not meet ISRI specifications. Upon termination for cause, Contractor shall immediately pay County for any Commodities collected for which Contractor has not yet paid County. 8. INSURANCE A. At all times during the term of this Agreement, Contractor shall maintain commercial general liability insurance in the minimum amount of ONE MILLION DOLLARS ($1,000,000.00) per injury, and the minimum aggregate amount of TWO MILLION DOLLARS ($2,000,000.00). Contractor shall name Eagle County as an additional insured. B. Worker's Compensation and employer liability in accordance with the Worker's Compensation Act of the State of Colorado for employees doing work in Colorado in accordance with this Agreement. C. Automobile liability (including owned, non-owned, and hired) in an amount not less than ONE MILLION DOLLARS ($1,000,000) per individual and not less than ONE MILLION 5 DOLLARS ($1,000,000) per occurrence. Contractor shall name Eagle County as an additional insured. This policy shall include Form MCS-90 providing Upset and Overturn coverage and Endorsement CA-99-48 Broadened Pollution Coverage. D. Contractor will carry Pollution Legal Liability in the minimum amount of one million dollars ($1,000,000) for each occurrence and two million dollars ($2,000,000) for the aggregate of all claims and will provide any other coverage required by State and Federal law. If allowed under applicable law, County will be named as an additional insured. This policy shall provide Transportation coverage including the loading and unloading of the vehicle. E. All insurance required hereby shall be issued by an insurance company or companies authorized to do business in the State of Colorado. Certificates of Insurance acceptable to County shall be filed with County prior to commencement of the Work. Coverage afforded under the policies will not be canceled until at least thirty days prior written notice has been given County. Contractor shall not start Work until all required insurance has been obtained and certificates with the proper endorsements have been filed with County. Contractor will require any subcontractor to meet the insurance requirements set forth herein. Failure of the Contractor to comply with the foregoing insurance requirements shall in no way waive the County's rights hereunder. 9. NOTICE AND AUTHORIZED REPRESENTATIVES Any notice and all communications required under this Agreement shall be given in writing by personal delivery, fax, e-mail or mail to the appropriate party at the following addresses: County: Contractor: Ken Whitehead, Director Ceri Krening, Marketing Manager Eagle County Solid Waste and Recycling WM Recycle America, L.L.C. P.O. Box 473 2400 W. Union Avenue Wolcott, Colorado 81655 Englewood, CO 80110 (970)328-3465 (p) (303) 914-1421 (p) (970) 328-3466 (f) (303427-7094 (f) Ken.whitehead @eaglecounty.us ckreninc a wm.com With a copy to: Law Department WM Recycle America, L.L.C. 4600 N Port Washington Road Milwaukee, WI 53212 Notices shall be deemed given on the date of delivery or three days after the postmarked date of deposit, first class postage prepaid, in an official depositary of the U.S. Postal Service. 10. PROHIBITIONS ON PUBLIC CONTRACT FOR SERVICES: If Contactor has any employees or subcontractors, Contractor shall comply with C.R.S. § 8- 17.5-101, et seq., regarding Illegal Aliens— Public Contracts for Services, and this Contract. By execution of this Contract, Contractor certifies that it does not knowingly employ or contract with 6 • an illegal alien who will perform under this Contract and that Contractor will participate in the E- verify Program or other Department of Labor and Employment program ("Department Program") in order to confirm the eligibility of all employees who are newly hired for employment to perform work under this Contract. A. Contractor shall not: (i) Knowingly employ or contract with an illegal alien to perform work under this contract for services; or (ii) Enter into a contract with a subcontractor that fails to certify to the Contractor that the subcontractor shall not knowingly employ or contract with an illegal alien to perform work under the public contract for services. B. Contractor has confirmed the ;errJplo rent eligibility of all employees who are newly hired for employmera to perform work under this Contract through participation in the E-verify F?r€�gram,or Department Program, as administered by the United States Departmeoi-of HDmeland'Security, Information on applying for the E-verify program can be found at:M:0,,�: �. . . http://www.dhs.qov/xDrevbrot/piticirarriskic 1185221678150.shtm C. The Contractor shall not use either the E-verify program or other Department Program procedures to undertake pre-employment screening of job applicants while the public contract for services is being performed. D. If the Contractor obtains actual knowledge that a subcontractor performing work under the public contract for services knowingly employs or contracts with an illegal alien, the Contractor shall be required to: (i) Notify the subcontractor and the County within three days that the Contractor has actual knowledge that the subcontractor is employing or contracting with an illegal alien; and (ii) Terminate the subcontract with the subcontractor if within three days of receiving the notice required pursuant to subparagraph (i) of the paragraph (D) the subcontractor does not stop employing or contracting with the illegal alien; except that the Contractor shall not terminate the contract with the subcontractor if during such three days the subcontractor provides information to establish that the subcontractor has not knowingly employed or contracted with an illegal alien. E. The Contractor shall comply with any reasonable request by the Department of Labor and Employment made in the course of an investigation that the department is undertaking pursuant to its authority established in C.R.S. § 8- 17.5-102(5). F. If a Contractor violates these prohibitions, the County may terminate the contract for a breach of the contract. If the contract is so terminated specifically for a breach of this provision of this Contract, the Contractor shall be liable for actual and consequential damages to the County as required by law. G. The County will notify the office of the Colorado Secretary of State if Contractor 7 violates this provision of this Contract and the County terminates the Contract for such breach. IN WITNESS WHEREOF, COUNTY and CONTRACTOR have executed this Agreement the day and year first set forth above. ATTEST: COUNTY OF EAGLE, STATE OF COLORADO, by and through its BOARD OF * OUNTY COMMISSIONERS IP° • tp ter !:� 4 BY: 41 * :Y: 4 /u A,A.-- Clerk to the Board of"ounty 'Rso° Sara J. Fishef, Chairman Commissioners , 212,,T Contractor:WM Rec le America, L.L.C. BY: Ma Kliesmet Assistant Secretary STATE OF L)JiSCrrS►v\-. ) SS. COUNTY OF ) The foregoing instrument was acknowledged before me by -TrGcq A •Chraloak, 03 for Waste Management, In&. this Gill day of Aw,ksi , 2013. My commission expires: 3/a"1 f Ito r „HRC 8Q Notary 4c OAP Z � Q v°� 2. p 8