Loading...
HomeMy WebLinkAboutRes2012-068 Sponsored by: Hunt *Wm CITY OF SEWARD, ALASKA RESOLUTION 2012 -068 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF SEWARD, ALASKA, APPROVING A FRANCHISE FOR THE COLLECTION AND DISPOSAL OF GARBAGE AND REFUSE WITH ALASKA WASTE - KENAI PENINSULA, LLC, SUBJECT TO APPROVAL BY THE VOTERS OF SEWARD AT THE OCTOBER 2, 2012 REGULAR CITY ELECTION WHEREAS, the Seward City Charter ( "Charter ") and Code of Ordinances ( "Code ") provides for the sanitary, economic, and efficient collection and disposal of garbage, rubbish, and waste material in the City and its service area, and permits, pursuant to such Charter and Code and voter approval, the use of a contractor to provide such services; and WHEREAS, the City of Seward ( "City ") currently contracts with Waste Connections of Alaska, Inc. dba Alaska Waste — Kenai Peninsula LLC, for the collection and disposal of garbage and refuse, with said contract set to expire December 31, 2012; and WHEREAS, the City solicited a request for proposals to provide solid waste collection services, and received three responsive and responsible proposals, and based on the scoring of those proposals, the administration recommends approval of a contract with Alaska Waste — Kenai ift .. Peninsula, LLC, subject to voter approval at an election to be held on October 2, 2012, and subject to successful negotiations between the City and the proposer; and WHEREAS, the administration recommends entering into a seven -year contract with an option to extend for up to three additional years, subject to approval by the City Council; and WHEREAS, this franchise agreement provides for automatic annual adjustments in the Rate Schedule based on 140% of the CPI', with such automatic increases not subject to further approval, and with all other changes to rates and conditions of service subject to City Council review and approval; and WHEREAS, the agreement provides for new services such as a bulky -item curbside pickup service for appliances and furniture, and through a levelized rate schedule, encourages the use of bear - resistant containers and bear - resistant dumpster lids to reduce bear /human/garbage encounters, and includes a franchise fee to be paid to the City, equal to 3% of the gross revenues collected by the contractor; and 1 Consumer Price Index (CPI) means the consumer price index (CPI -U), all items, 1982 - 1984 =100 for urban wage earners and clerical workers, Anchorage, Alaska area, as published by the U.S. Department of Labor, Bureau of Labor Statistics (initial release). The 2014 Rate Schedule will be adjusted utilizing the CPI data from the calendar troy year 2012. CITY OF SEWARD, ALASKA RESOLUTION 2012 -068 apoil WHEREAS, approval of a seven -year franchise, with an option to extend for an additional term of up to three years, provides sufficient incentive for the contractor to make improvements to the local fleet of available equipment, trucks, and container inventories, and to address issues such as the availability of bear - resistant garbage cans and bear - resistant dumpster lids, and to consider future options for the community to encourage and facilitate recycling efforts; and WHEREAS, granting of a franchise for a public utility requires the affirmative vote of a majority of electors voting on a proposition to approve such a franchise, and WHEREAS, the Seward City Council finds that it is in the public interest to provide for quality, local garbage and refuse collection and disposal services, and therefore opts to place this proposition before the voters of Seward at the regular election of October 2, 2012. NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF SEWARD, ALASKA, that: Section 1. A franchise agreement between the City of Seward and Alaska Waste — Kenai Peninsula LLC, for the collection and disposal of garbage and refuse, a copy of which is attached hereto and incorporated herein by reference, is hereby approved subject to voter approval, in accordance with Section 4 below. Section 2. The city manager is authorized to finalize and execute such additional documents as necessary to finalize the franchise agreement and to agree to revisions to the documents so long as the essential terms and conditions of the franchise agreement are not substantially changed. Section 3. The city manager is authorized to include collection of a franchise fee in the amount of 3% of gross revenues collected from the franchisee, and that amount is considered adequate compensation for the maintenance and use of City streets and alleys in the conduct of this contract. The City Council will also retain rate approval as provided in the City Charter and Code. Section 4. At the regular municipal election to be held on October 2, 2012, the City shall submit to the qualified voters of the City the question of approval of the franchisee agreement noted above. An affirmative vote of a majority of the qualified electors voting on the proposition shall be required for approval of the franchise agreement. ..d CITY OF SEWARD, ALASKA RESOLUTION 2012 -068 ir... Section 5. The proposition shall be substantially in the following form: Proposition No. 2 FRANCHISE AGREEMENT FOR THE COLLECTION AND DISPOSAL OF GARBAGE AND REFUSE Do you approve a seven -year franchise agreement with Alaska Waste — Kenai Peninsula, LLC for the collection and disposal of garbage and refuse? The franchise agreement contains an option to extend for up to an additional three years. The agreement allows for costs to be adjusted annually based on 140% of the Consumer Price Index. The agreement provides an opportunity for periodic rate reviews with all other consumer rates to be set by resolution of the City Council. Yes No A "Yes" vote approves a seven -year franchise agreement with Alaska Waste — Kenai Peninsula, LLC for the collection and disposal of garbage and refuse, him with options to extend the agreement for up to three additional years. A "No" vote does not approve a seven -year franchise agreement with Alaska Waste — Kenai Peninsula, LLC for the collection and disposal of garbage and refuse, with options to extend the agreement for up to three additional years. Section 6. This resolution shall take effect immediately upon adoption. The franchise agreement shall not be effective until it has been approved by a majority of the electors voting on a proposition to approve the same. The franchise agreement shall go into effect January 1, 2013 or as soon thereafter as practicable. PASSED AND APPROVED by the City Council of the City of Seward, Alaska, this 13 day of August, 2012. THE CITY OF SEWARD, ALASKA David Seawa , ayo il... CITY OF SEWARD, ALASKA RESOLUTION 2012 -068 AYES: Valdatta, Bardarson, Keil, Shafer, Casagranda, Terry, Seaward NOES: None ABSENT: None ABSTAIN: None ATTEST: • -C & ( \ : ohanna Kinney, CMC jeity Clerk (City Seal) ��l of SEt+V " ;`�G ��. �•� s r • SEAL t . • % OF 0. -" •Iltnkti► J Council Agenda Statement r sett, Meeting Date: August 13, 2012 Through: James Hunt, City Manager ° 41 :AS• P From: Kristin Erchinger, Finance Director Agenda Item: Approving Franchise Agreement for Solid Waste Collection Services with Alaska Waste - Kenai Peninsula, LLC BACKGROUND & JUSTIFICATION: The City of Seward, through its Charter and its Code of Ordinances, provides for the collection and disposal of garbage and rubbish. To that end, the City previously applied for, and was granted, a Certificate of Public Convenience and Necessity by the Regulatory Commission of Alaska, for its refuse utility (Certificate U- 99 -22). Since at least the early 1970s, the City has utilized a private contractor to provide refuse services in Seward. The City Code requires that a franchise for a public utility be approved by a majority of voters in a regular City election. Over the past 38 years, the City has issued Requests for Proposals for solid waste collection four times, as follows: 1974, one respondent; 1980, one respondent; 1983, two respondents; 1987, one respondent. In 1987, the City contracted with Seward Service (Herman Leirer), and the business was subsequently assigned five times, as follows: in 1989 to Jason Enterprises; in 1998 to USA Waste of Alaska; in 1999 to Peninsula Sanitation, a division of Waste Management, Inc.; in 2005 to Alaska Pacific Environmental Services Anchorage, LLC dba Alaska Waste - Kenai Peninsula LLC; and in 2012 to Waste Connections of Alaska, Inc. The most recent franchise agreement was approved by the voters on October 5, 2010 for a period of two years, with a request by the City Council to solicit Requests for Proposal at the end of the term. The current contract for refuse services expires December 31, 2012. The City solicited a Request for Proposals for solid waste collection services and received three responses. All three proposals were considered responsive and responsible. The following criteria and associated weightings were used to score the proposals: Proposed rates = 30 %; Firm's technical qualifications (fleet, container inventory, etc.) = 20 %; Firm's experience = 15 %; Bear Awareness = 10 %; Litigation History = 10 %; Contract exceptions = 10 %; and Customer service and billing = 5 %. The proposals received the following overall scores: Alaska Waste - Kenai Peninsula, LLC Score = 88.52 Alaska Pacific Environmental Services I, LLC Score = 71.78 Mid State Truck and Trailer, LLC Score = 70.50 Based on the scoring of criteria, the administration recommends approving a franchise for the collection and disposal of garbage and refuse with Alaska Waste - Kenai Peninsula, LLC ( "Alaska Waste "), subject to approval by the voters of Seward at the October 2, 2012 regular City election, and subject to successful contract negotiations. A few highlights from the successful proposal: The RFP allowed for a new fee to be implemented, based on standard waste management industry practice. That fee would have been a fuel adjustment factor to be added to the bill each month based as a percentage of the services charges on the bill (excluding taxes and surcharges), with an option to escalate each year based on a percentage of the Producer Price Index for No. 2 Diesel Fuel. Alaska Waste opted not to propose adding a new fuel adjustment factor, but to instead include all cost escalations as a percentage of the annual Consumer Price Index ( "CPI "). Their proposal includes the following: 1) initial rates are increased from the current Rate Schedule by approximately 25% for regular cans and 7% for bear - resistant cans, effective January 1, 2013; 2) the Rate Schedule has been amended to add a monthly charge for renting a dumpster from the Contractor (rent has been charged previously, but that item was omitted from the schedule); 3) annual increases to the Rate Schedule will be equal to 140% of the Consumer Price Index over the life of the contract; 4) a new "bulky item pickup" service will be implemented at a minimum cost of $42.18 per item (small appliances, furniture, etc.); 5) incentivizes the use of bear - resistant garbage cans by charging the same $2.00 per month charge for a leased bear - resistant can or a regular can; 6) adds lockable dumpster lids; 7) continues the current practice of the contractor bearing responsibility for billing customers and providing direct customer service; 8) the contractor agrees to make available bear- resistant garbage cans and bear - resistant dumpster lids for sale or lease, to anyone interested in obtaining one; and 9) provides for a seven -year term with options to extend for an additional term of up to three years at the discretion of the City Council. Alaska Waste's base price for monthly service will be $26.91 (up from the current $21.53), and this represents the median quoted rate (quotes ranged from $20.88 to $41.75) of the three proposals. Waste Connections of Alaska, Inc. (dba Alaska Waste — Kenai Peninsula, LLC) became the City's current refuse franchisee, upon completion of a buyout of the City's previous contractor, and upon the City Council's approval of consent to a change in ownership, approved by Resolution in February, 2012. Since that time, the contractor has provided safe and reliable service to the residents of Seward, and the City has received very few calls regarding service. The contractor has been responsive to City staff and we have developed a positive working relationship. The administration recommends approval of this franchise agreement, for final approval by the voters of Seward at the October election. CONSISTENCY CHECKLIST: Yes No N/A 1 Comprehensive Plan: Page 11- Community Appearance, Page 13 -City X Government, Page 26- Public Facilities. 2. Strategic Plan: Page 4- Nautural, Promote a Safe Community -Page 18 X 3. Other (list): X ATTORNEY REVIEW: YES X No FISCAL NOTE: Approval of this contract will result in an increase in a residential customer's monthly standard charge of $5.38, representing an approximate increase of 25% (from $21.53 to $26.91 per month). The City will collect a 3% franchise fee based on gross revenues collected, estimated at approximately $20,000 per year. The franchise fee is intended to compensate the City for maintenance and use of its roads and alleys, per Seward City Charter §13.5(7). The agreement allows further annual rate reviews, whereby the Seward City Council is required to approve refuse rates charged by the contractor. Approved by Finance Department: 7 RECOMMENDATION: Council approve Resolution 2012 , approving a franchise for the collection and disposal of garbage and refuse with Alaska Waste — Kenai Peninsula, LLC, subject to approval of the voters at the October 2, 2012 regular city election, and to successful contract negotiations. CONTRACTUAL AGREEMENT FOR THE COLLECTION AND DISPOSAL OF GARBAGE, RUBBISH AND WASTE MATERIAL IN THE CITY OF SEWARD, ALASKA THIS AGREEMENT (the "Agreement ") is dated as of the day of 2012, by and between the City of Seward, Alaska, a municipal corporation organized under and operating pursuant to the laws of the State of Alaska, hereinafter referred to as the "City" and Alaska Waste - Kenai Peninsula, LLC, hereinafter referred to as "CONTRACTOR ". WHEREAS, the City, by its charter (the "Charter ") and ordinances of the Seward City Code (the "Code "), provides for the sanitary, economic, and efficient collection and disposal of garbage, rubbish, and waste material in the City and its service area, and has, by such Charter and Code, made regulations regarding such collection and disposal; and WHEREAS, the City seeks a CONTRACTOR to provide dependable, economic, and efficient service to the business, industrial, residential, and public districts of the City and its service area through periodic and regularly scheduled collection of garbage, rubbish, and waste material in accordance with the Charter and Code and within the terms of a previous agreement; and WHEREAS, the City and CONTRACTOR agree to consider, over the course of this contract, alternative means to reduce the environmental impact of waste, to include recycling efforts, measures to reduce human/bear encounters, and other such potential initiatives; and NOW, THEREFORE, IT IS AGREED BY AND BETWEEN THE CITY AND CONTRACTOR THAT: 1. Engagement. This Agreement, a franchise contract for collecting and disposing of the garbage, rubbish and waste materials of businesses, residences, and public entities of and within the City and its service area, is hereby awarded to CONTRACTOR, subject to approval by the voters under Charter Section 13.6. 2. Compliance. CONTRACTOR will comply with the terms and provisions of all Charter and Code provisions and will follow regulations of the City in connection therewith. Charter Section 13.5 is incorporated herein by this reference. To the extent that any provisions of this Agreement conflict with the Charter or Code, the Charter and Code shall govern. 3. Service. (a) CONTRACTOR will provide continuous and uninterrupted service to the public in all sections of the City and its service area in accordance with the terms of this Agreement throughout the entire period hereof except as provided in paragraph 13 herein. (b) The City and CONTRACTOR agree to the terms and conditions of CONTRACTOR' Service Policies, and CONTRACTOR agrees to perform according to said Service Policies, which are attached hereto as Exhibit 1. (c) Should the City adopt service policies whose effect is to impose requirements or restrictions on Contractual Agreement Between The City of Seward and Alaska Waste - Kenai Peninsula, LLC Page 1 of 11 CONTRACTOR' performance which will cause CONTRACTOR additional costs to provide service, the City shall provide CONTRACTOR the opportunity to determine its additional costs and to request a rate adjustment in the manner provided by Charter and Code. (d) CONTRACTOR agrees to collect and transport all garbage, rubbish and waste material collected within the City and its service area to a site and facility designated by the Kenai Peninsula Borough and to comply with the regulations established for such facility. 4. Term of Agreement. (a) This Agreement is effective upon execution by both Parties and as of the date first above written. The collection services provided under this Agreement shall commence at 12:01 a.m. on January 1, 2013 or as soon thereafter as practicable, and shall continue for a minimum term of seven (7) years, expiring no earlier than 11:59 p.m. December 31, 2019, unless earlier terminated under the provisions of the Charter or this Agreement. (b) Unless this Agreement is terminated pursuant to the provisions of the Charter, paragraph 15 of this Agreement, or any other provision of this Agreement, the Parties agree that this Agreement may be renewed for up to three (3) additional years on the same terms and conditions as provided herein; provided, however, 1) CONTRACTOR first notifies the City of its desire to renew this Agreement under the same terms and conditions and provides written notice to the City in accordance with this Agreement at least one hundred eighty (180) days prior to the expiration of the current term; 2) CONTRACTOR is not in default under any term or provision of this Agreement; and 3) the City Council, at the time the renewal is requested, approves the renewal. The maximum term of this contract shall be ten (10) years. Following the termination of this Agreement for any reason prior to the expiration of the initial term or renewal term, CONTRACTOR shall continue to provide the services under this Agreement, at the City's election, until 11:59 p.m. on the last day of the first full month following the date the City gives CONTRACTOR notice of termination. 5. Insurance. a. Coverage Requirements. Without limiting its Indemnities, CONTRACTOR will secure and maintain insurance coverage meeting the requirements in this Section. Each liability policy must provide contractual liability coverage for Contractor's Indemnities, including any necessary endorsement, schedule or documentation. CONTRACTOR agrees that, at its sole cost and expense, it will obtain and maintain public liability insurance, insuring against all liabilities, claims and demands for injuries, loss and /or damage which result from the performance of services pursuant to this Agreement as follows: (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 Contractual Agreement Between The City of Seward and Alaska Waste - Kenai Peninsula, LLC Page 2 of 11 Products /Completion Operations Aggregate: $4 million Personal and Advertising Injury: $1 million Each Occurrence: $2 million (ii) Automobile Liability Coverage. Insurance meeting the following requirements: 1. Written on ISO policy forms CA 00 12 or CA 00 20 (or equivalent) with a limit of liability not less than $2 million for each accident 2. 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 3. Covering all Vehicles that drive on public roads. If contractor is subject to federal regulations, Contractor will also maintain any other coverage necessary to satisfy state or federal financial responsibility requirements. (iii) 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) the CONTRACTOR becomes legally obligated to pay as a result of claims for bodily injury, property damage, and cleanup costs (including expenses required by environmental laws or incurred by federal, state, city, or third parties) resulting from pollution conditions caused by transported cargo (including waste). For the purpose of this subsection, "pollution conditions" includes the dispersal, discharge, release, or escape of any solid, liquid, gaseous or thermal irritant or contaminant (such as smoke, vapors, soot, fumes, acids, alkalis, toxic chemicals, medical waste, and waste materials) into or upon land, any structure on land, the atmosphere, or any watercourse or body of water (including groundwater), provided the conditions are not naturally present in the environment in the amounts or concentrations discovered. CONTRACTOR'S general liability policy may be endorsed to provide for this pollution liability coverage. (iv) Workers Compensation and Employers' Liability. Insurance providing the following: 1. 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 Contractual Agreement Between The City of Seward and Alaska Waste - Kenai Peninsula, LLC Page 3 of 11 2. 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: (i) is acceptable to the City of Seward, (ii) is an admitted company in State, (iii) has a size category of VII or larger by A.M. Best Company, Inc., and (iv) has a rating of A or better by A.M. Best Company, Inc. c. Evidence of coverage. Contractor will provide Certificates of Insurance, endorsements, schedules and other evidence of insurance coverage requested by the City, at the following times: (i) on or before the contract commencement date, (ii) promptly upon renewal of policies, and (iii) within ten (10) days of request by the City. 1. All insurance required herein shall name the City as an additional insured. All insurance premiums shall be the obligation of and shall be paid by CONTRACTOR. A valid Certificate of Insurance shall be delivered to the City's Finance Director at the signing of this Agreement. Each insurance policy shall contain a clause whereby the insurance company agrees to give written notice to the City prior to any cancellation of such policies of insurance in accordance with the applicable provisions of such policies. The amount of the insurance policy deductibles are subject to approval by the City. d. Certificates of Insurance. Contractor will provide certificates (or other evidence of coverage) containing the following information: (i) Contract name, explicitly identifying this Agreement. (ii) Types, policy numbers, policy effective /expiration dates, and limits. (iii) 30 days' cancellation notice: Containing express condition that the City of Seward must receive written notification by mail in advance of cancellation for all policies evidenced on the certificate of insurance in accordance with the applicable provisions of such policies. (iv) Deductibles and self - insured retentions. Identifying any deductible and self - insured retention, and upon City request, the Contractual Agreement Between The City of Seward and Alaska Waste - Kenai Peninsula, LLC Page 4 of 11 CONTRACTOR will reduce any self-insured retention as it applies to the City or provide a letter of credit, certificate of deposit or other fmancial assurance acceptable to the City, guaranteeing payment of all retained losses and related costs and expenses related to investigations, claims administration, and legal defense. (v) Claims made. If the City 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 Agreement commencement date. CONTRACTOR must maintain that coverage for at least five (5) years after the termination date of this Agreement (or longer as required under this Agreement). Promptly upon request, CONTRACTOR must provide City with evidence of this coverage. THIS PROVISION SURVIVES THE TERMINATION OF THIS AGREEMENT. e. Endorsements. CONTRACTOR must provide copies of the following endorsements or other documentation with respect to CONTRACTOR and its subcontractors: (i) Additional insured. Endorsements to each liability policy, explicitly adding City and its "officers, agents, and employees" as additional insured. (ii) Waiver of subrogation; (iii) Insurance is primary and not contributing with any other insurance or self-insurance programs maintained by City. (iv) Excluding any "insured v. insured" clause in a liability policy with respect to City as an additional insured; and (v) Providing dedicated limits under a liability policy in favor of City as an additional insured. f. Schedules. Contractor must provide schedules or other evidence that liability policies of CONTRACTOR provide contractual liability coverage for Indemnities, such as listing this Agreement as an "insured contract ". g. Notice of Claims. If any person makes a claim against CONTRACTOR in excess of the amount of any deductibles or self - insured retentions, CONTRACTOR will promptly notify City of the claim. 6. Contractor Indemnity, Defense and Release a. To the extent allowable under applicable law, CONTRACTOR will indemnify and hold harmless, defend with counsel approved by the City, and release the City, its officials, employees, agents, and contractors from and against all liabilities and losses paid, incurred or suffered by, or asserted against, the City or any of its related parties, including any claims, demands, penalties, fines, judgments, liabilities, settlements, damages, costs or expenses (including, without limitation, reasonable attorney, consultant and expert fee, court costs and litigation expenses) of whatever kind or nature, known or unknown, contingent or otherwise, to the extent arising out of or in any way resulting from ' operations under this Agreement or the use of any of the City's Contractual Agreement Between The City of Seward and Alaska Waste - Kenai Peninsula, LLC Page 5 of 11 property except to the extent such damages arise from the negligence or willful acts or omissions of the City, its officials, employees, agents, or contractors. b. CONTRACTOR' indemnification and defense of the City, its officials, employees, agents, and contractors shall extend to any claims arising out of or m any way related to this Agreement and the presence, disposal, release or threatened release of any hazardous material, in each case only to the extent caused by the Contractor or arising from the Contractor's operations hereunder, which is on, from or affecting public or city land, soil, water, ground water, vegetation, building, personal property, persons, animals, or otherwise including any personal injury (including wrongful death) or property damage to the extent arising out of or related to any such hazardous materials, and any lawsuit brought or threatened, settlement reached or government order relating to such hazardous materials (except for damages arising from the negligence or willful acts or omissions of the City, its officials, employees, agents, contractors or any other third parties that are unrelated to the Contractor). c. CONTRACTOR shall furnish to the City's Finance Director a performance bond in the sum of Twenty -Five Thousand Dollars ($25,000) conditioned upon the covenants, agreements, stipulations and conditions thereof The executed performance bond shall be attached to this Agreement and incorporated hereto and made a part hereof 7. Fees Established. CONTRACTOR shall be entitled to receive the fees specified in the Rate Schedule for Garbage and Refuse Services attached hereto as Exhibit 2, as may be amended from time to time according to the terms of the Charter, Code, and this Agreement. 8. Record of Services. On a monthly basis, CONTRACTOR shall supply the City with an accurate record of the gross revenues billed and collected, for the purposes of paying the 3% franchise fee identified in Section 10. 9. Customer Contact Point. CONTRACTOR shall serve as the primary point of customer contact and shall receive customers' applications for service, provide the customer with information regarding services available and fees for such services, and receive customer complaints regarding service.. The City will accept and forward any customer complaints that are brought to the City's attention, on to CONTRACTOR. 10. Franchise Fee. The Seward City Charter §13.5(7) requires that a franchise contribute to the cost of maintaining local roads, alley ways, etc. which the franchise may use in the conduct of its business. The franchise fee imposed under this section shall be three percent (3 %) of CONTRACTOR' gross revenues actually collected within the corporate limits of the City for each month. The fee shall be due and payable on the 20 day of the following month, and if not paid timely, shall be subject to penalties and interest as provided in Seward City Code §14.01.055. Contractual Agreement Between The City of Seward and Alaska Waste - Kenai Peninsula, LLC Page 6 of 11 11. Rate Adjustment. The City and CONTRACTOR agree that the Rate Schedule will be adjusted beginning on January 1 in the second full calendar year of the Term (in this case, January 1, 2014) and each subsequent January 1, equal to the following: a. The Rate Schedule in effect during the prior contract year (or portion thereof), plus or minus the percentage of the Consumer Price Index (CPI) bid in response to the RFP; in this case, 140% of the annual CPI.' b. The rate adjustment proposed in this Section 11 is subject to approval by the Seward City Council, of a Refuse Tariff adjustment which is to be proposed to the Council upon approval of this Agreement. Said Refuse Tariff adjustment will propose that the CPI increase become an automatic adjustment effective January 1 each year beginning January 1, 2014 without need of further City Council approval, and that all other amendments to the Rate Schedule shall require further Council approval. 12. Independent Contractor. It is specifically acknowledged and agreed that when fulfilling its obligations pursuant to this Agreement, CONTRACTOR is an independent contractor and the City has no control or right to control CONTRACTOR' operations, equipment and /or personnel except as expressly set forth in this Agreement. 13. Force Majeure. If the failure of CONTRACTOR to perform under this Agreement is due to any fault of the City, acts of God, fuel or repair supplies, fire, explosion, tempest, weather, war, strikes, earthquakes or accidents directly or indirectly affecting CONTRACTOR' performance ( "Excuses ") and the Excuse is beyond the reasonable control of CONTRACTOR or not the result of CONTRACTOR' act, or omission, or negligence, then the failure of CONTRACTOR to timely perform under this Agreement shall not constitute a default or breach under this Agreement, and no penalties or damage shall be payable to the City by CONTRACTOR or its agents, and the time for CONTRACTOR' performance under this Agreement shall be extended from time to time and as often as such events occur by a period of time equal to the time lost. 14. Arbitration. If a dispute arises between the parties concerning their respective rights under this Agreement (excluding rate adjustments), and where commercially reasonable and practicable, the parties shall seek to resolve the dispute by using an appropriate form of alternative dispute resolution prior to initiating litigation proceedings. If the parties are unable to reach resolution within sixty (60) days following notice of a written claim, either party may initiate litigation proceedings. Rate adjustments shall not be the subject of or subject to arbitration. 15. CONTRACTOR Default. Subject to the provisions of Charter Section 13.5, if CONTRACTOR is in default under this Agreement and the default is not excused or Consumer Price Index (CPI) means the consumer price index (CPI -U), all items, 1982 -84 =100 for urban wage earners and clerical workers, Anchorage, Alaska area, as published by the U.S. Department of Labor /Bureau of Labor Statistics (initial release). Note: The 2014 Rate Schedule will utilize CPI Data from the calendar year 2012. Contractual Agreement Between The City of Seward and Alaska Waste - Kenai Peninsula, LLC Page 7 of 11 the fault of the City, then CONTRACTOR shall have ten (10) business days following written notification given according to paragraph 19 hereunder, in which to cure the default. If the default has not been cured at the end of the ten (10) business days, this Agreement shall terminate. The City may also terminate this Agreement for the violation of any of its provisions, for the misuse or non -use hereof, for failure to comply with any provision hereof, or any regulation imposed under authority of the Charter or Code. 16. Equipment and Services. (a) CONTRACTOR shall provide sufficient equipment to provide uninterrupted service to its customers and at its sole cost and expense, shall maintain and keep that equipment in good repair and operating condition and shall provide all fuel, lubricants, tires and other materials and supplies necessary for the operation of that equipment. (b) CONTRACTOR shall furnish trained and competent personnel at its sole cost and expense as well as all employee required or necessary to adequately furnish services pursuant to this Agreement. At all times CONTRACTOR shall be solely responsible for the supervision of its equipment and personnel. (c) CONTRACTOR shall perform all services in a courteous, professional and competent manner. CONTRACTOR shall not litter in the process of collecting refuse, nor allow any refuse to flow or fall from any equipment used when performing services. CONTRACTOR shall repair or replace, at its sole cost and expense, any container(s) damaged as a result of any act, conduct or omission by CONTRACTOR when performing services pursuant to this Agreement except for reasonable wear and tear. (d) CONTRACTOR shall provide a toll free number to the City and its customers located in the City to call CONTRACTOR' principal place of business. (e) CONTRACTOR shall ensure that all required customers have signed up for refuse collection services as required by Seward City Code § 15.05.010 (a), by coordinating new customer service with the City of Seward or by advertising, or any other reasonable means, and shall ensure that customers have a convenient means by which to establish new service. 17. Violations Reporting. CONTRACTOR shall report to the City violations of local, state, or federal law relating to the collection and disposal of garbage, rubbish and waste material in the City and its service area. 18. Additional or Special Pick Up. CONTRACTOR shall respond to customer requests for additional or special pick up (non- scheduled service) within twenty -four (24) hours of such request unless prevented by weather, blocked access, or other reasons beyond the reasonable control of CONTRACTOR. Sunday shall not be counted when computing the twenty -four (24) hour response period. Unless excused by weather, blocked access, or other reasons beyond the reasonable control of CONTRACTOR, if CONTRACTOR fails to respond within twenty -four (24) hours the next pick up will be at no cost. 19. Customer Billing and Collections. Invoicing and billing of all customers will be the responsibility of the Contractor. The customer will be invoiced for collection Contractual Agreement Between The City of Seward and Alaska Waste - Kenai Peninsula, LLC Page 8 of 11 services, waste disposal, container rental, taxes and fees, and any additional selected services. All invoices will include service address, coverage of dates invoiced, and the rate for the customer's level of service. Contractor shall be responsible for collections of all fees and taxes due the Contractor from customers. Contractor may elect to forward to the City, information for all customers for whom reasonable efforts to collect have been unsuccessful for a period of at least 120 days, and the City may elect to begin proceedings to place a lien upon the property of those customers to satisfy payment of outstanding bills. The Contractor is required to enforce collections through reminder letters and assessment of late fees and interest, prior to the City's assuming the debt for the purposes of enforcement. The City has no obligation to pursue such enforcement action, but may elect to do so in order to ensure compliance with the provisions of Seward City Code mandating participation in refuse collections. 20. Notices. Any notice or demand which under the terms of this Agreement or any state statute, Charter provision, or Code provision may or must be given or made by the parties hereto shall be in writing and given and made by personal delivery or by mailing by certified mail or registered mail, addressed to the other party as follows: Contractual Agreement Between The City of Seward and Alaska Waste - Kenai Peninsula, LLC Page 9 of 11 City of Seward Alaska Waste - Kenai Peninsula, LLC City Manager Attn: Matt O'Connell, Division Manager P.O. Box 167 6301 Rosewood St., Seward, Alaska 99664 Anchorage AK 99518 Either party may, however, designate in writing such new or other address to which such notice or demand shall thereafter be so given, made or mailed. Any notice given under this Agreement by mail shall be deemed delivered when deposited in a United States general or branch post office, enclosed in a registered or certified prepaid wrapper addressed as set forth above. 21. Interpretation. This Agreement, together with the Charter and Code, contains the entire agreement between the Parties. There is no other understanding, oral or written, which in any manner changes or enlarges what is set forth in this Agreement. 22. Assignment. CONTRACTOR shall not sell, assign, sublet or allow another to use this Agreement (the franchise contract) without prior approval by resolution of the City Council. This provision is subject to Charter Section 13.8. 23. Time of the essence. Time is of the essence of each and every provision of this Agreement. 24. Binding Effect. This Agreement shall extend to and be binding upon the heirs, administrators, executors, successors, and assigns of the respective Parties. 25. Headings. Headings used in this Agreement are for convenience only and shall not affect the construction of this Agreement. 26. Applicable Law. This Agreement shall be governed by and construed in accordance with the laws of the State of Alaska, excluding any conflict of law, rule or principle, which might refer such construction to the laws of another state or jurisdiction. 27. Modification. Except for rate adjustments in Section 11, no modifications, changes, or amendments may be made to this Agreement by either Party except in a written instrument executed by each party or as may be required by the applicable provisions of the City Charter, City Code, or Alaska Statutes. 28. Waiver. The failure of either Party to insist upon strict performance of any provision of this Agreement shall not constitute a waiver of or estoppel against asserting the right to require that performance in the future. A waiver or estoppel in any one instance shall not constitute a waiver of or estoppel against asserting the right to require that performance in the future. A waiver or estoppel in any one instance shall not constitute a waiver or estoppel with respect to a later breach or a similar nature or otherwise. A course of performance established by a party shall also not estop the other party from complaining of a later breach similar in nature. Contractual Agreement Between The City of Seward and Alaska Waste - Kenai Peninsula, LLC Page 10 of 11 29. Construction. The rule of contract construction that ambiguities, if any, in a writing be construed against the drafter shall not apply to this Agreement. 30. Severability. In the event that any term, condition, or provision of this Agreement is declared by a court of competent jurisdiction to be void or unenforceable, the remaining terms, conditions, and provisions of this Agreement shall remain valid and enforceable as if such void of unenforceable term, condition, or provision was omitted from the Agreement when the Agreement was first executed. IN WITNESS WHEREOF, the Parties have executed this Agreement the day and year set opposite their respective signatures. By: City of Seward Alaska Waste — Kenai Peninsula, LLC Jim Hunt, City Manager Matt O'Connell, Division Manager Date: ATTEST: Johanna Kinney, CMC (City Seal) Contractual Agreement Between The City of Seward and Alaska Waste - Kenai Peninsula, LLC Page 11 of 11 SCHEDULE OF YEAR 2013 FEES REFUSE COLLECTION RATES IN SEWARD SERVICE CHARGE FOR CONTAINERS Monthly Charge CONTAINER SIZE 1 x MO. I X WEEK 2 X WEEK 3 X WEEK 4 X WEEK 5 X WEEK 6 X WEEK SPECIAL 2.0- 2.4yd. $15.76 $68.25 $136.50 $204.75 $273.00 $341.25 $409.50 $31.51 2.5 -2.9 yd. $24.35 $105.44 3.0 - 2.9 yd. $210.88 $316.31 $421.75 $527.19 $632.63 $48.70 $28.00 $121.23 $242.45 4.0 - 4.9 yd. $363.68 $484.90 $606.13 $727.35 $55.99 $32.04 $138.69 $277.38 5.0 - 5.9 yd. $416.06 $554.75 $693.44 $832.13 $64.06 $38.44 $166.45 $332.90 $499.35 $665.80 $832.25 $998.70 $76.88 6.0 -7.9 yd. $44.23 $191.44 $382.88 $574.31 8 yd. $59.99 $259.76 $519.53 $765.75 $957.19 $1,148.63 $88.43 $779.29 $1,039.05 $1,298.81 $1,558.58 $119.99 MONTHLY CONTAINER RENTAL (to rent container from contractor) CONTAINER SIZE per month 2.0 - 2.4 yd. $25.00 2.5 - 2.9 yd. $30.00 3.0 - 3.9 yd. $36.25 4.0 - 4.9 yd. $46.25 5.0 - 5.9 yd. $56.25 6.0- 7.9yd. $66.25 ,8 yd. $75.25 (LOCKABLE DUMPSTER LIDS: $15.00 per month COMMERCIAL CAN SERVICE Monthly Charge NO. PICKUPS PER WEEK First Two Additional Drive Out and Pack Containers Containers Out Service per Month 1 $26.91 $10.00 $25.00 2 $53.83 $10.00 $28.75 3 $80.74 $10.00 4 $32.50 $107.65 $10.00 $36.25 5 $134.56 $10.00 $42.50 6 $161.48 $10.00 $46.25 RESIDENTIAL SERVICE Monthly Charge for One Time Per Week Service First Two Cans or First Two Cans or Two 32 gal bpc* or Two 32 gal bpc* or One 64 gal bpc* One 64 gal bpc* One 96 gal bpc* One 96 gal bpc* Additional Cans (customer owned) (contractor owned) (customer owned) (contractor owned) Pack Out Single Family or Apartment 26.91 28.91 34.55 36.55 $7.00 $25.00 !BULKY ITEM PICKUP: $42.18 per item minimum or $168.75 per hour for labor and equipment I ROLL- ON/ROLL -OFF CONTAINER SERVICE $168.75 PER HOUR I Time and Equipment rates apply to special pickups TIME AND EQUIPMENT RATES One Truck and One Person: $168.75 per hour One Truck and Two Persons: $219.38 per hour Special Pickups: 1.5 times the regular hourly rate (Atter 5:00 p.m. and before 8:00 a.m. and anytime on Saturday, Sunday or holidays) Minimum Charge: 1/2 Hour at the applicable rate Maintenance of Pick Up Area: $25.00 minimum charge Extra Yardage: $9.85 per cubic yard * bpc = Bear Proof Can Effective: January 1,2013 EXHIBIT 2 SCHEDULE OF YEAR 2011 FEES REFUSE COLLECTION RATES IN SEWARD SERVICE CHARGE FOR CONTAINERS Monthly Charge 2.0 but less than 2.5 yd. 1 x M $12.61 I X WEEK 2 X _WEEK 3 X WEEK 4 X W E X y .K 6 X WEEK SPECIAL $54.60 $109.20 $163.79 $218.39 $272.99 2.5 yd but less than 3 yd. $19.48 $506. $2 $168.70 $253.05 $337.40 $421.75 $506.10 3 yd but less than 4 yd. $22.40 $96.98 $38.96 $193.95 $290.93 $387.91 $484.89 $581.86 $44.79 4 yd but less than 5 yd. $25.63 $110.95 5 yd. but less than 6 yd. $30.75 $221'90 $332.84 $443.79 $554.74 $665.69 $51.25 $133.16 $399.49 $266.33 $532.64 $665.80 $798.96 $61.50 6 yd. but less than 8 yd. $35.38 $153.15 8 yd. $47.99 $207.81 $306.30 $459.46 $612.61 $765.76 $918.91 $70.74 $415.61 $623.43 $831.23 $1,039.04 $1,246.85 $95.99 U A L C A N E R E SERVI E Monthly Charge NO. PICKUPS PER WEEK First Two Additional Drive Out and Pack Containers Containers Out Service per Mont $21.53 $1.54 .er . ickup $18.96 $43.04 $1.54 . er .ickup $37.94 $64.56 $1.54 .er .ickup $56.90 $86.08 $1.54 . er . ickup $75.88 $107.60 $1.54 per pickup $94.85 6 $129.11 $1.54 per picku $113.80 RESIDENTIAL SE_ Rma Monthly Charge for One Time Per Week Service First Two Cans or Two 32 gal bpc* or One 96 gal bpc* One 64 gal bpc* One 96 gal bpc* w /cart Additional Cans Pack Out Single Family or Apartment 21.53 32.29 41.04 .,1.54 . er pickup $18.96 ROLL - ON/ROLL - OFF CONTAINER SERVICE $135.00 PER HOUR Time and E.ui.ment rates a .l to special .ickuis TIME AND EQUIPMENT RATES One Truck and One Person: $135.00 per hour One Truck and Two Persons: $175.50 per hour Special Pickups: 1.5 times the regular hourly rate (After 5:00 p.m. and before 8:00 a.m. and anytime on Saturday, Sunday or holidays) Minimum Charge: 1/2 Hour at the applicable rate Maintenance of Pick Up Area: $13.50 minimum charge Extra Yardage: $6.00 per cubic yard * bpc = Bear Proof Can Effective: October 1, 2010