Saturday, December 31, 2005

Rumorbusters III (Updated, Again)

The contract transcribed below is a draft that has since been amended to more clearly state the intention of the parties. We urge readers who so desire to seek out the contract as amended.

But here's a question for you. Should all such agreements, which are public records, after all, be made available online?

Did any member of the City Council care enough to ask to see this contract? Certainly the news media did, although it would have been a rare occurrence, indeed, if they were to offer the text in their print editions. But what keeps them from archiving such things on their Web sites?

For the record, the reason I and several other residents of New Albany have copies of this contract is (drumroll, please)...we asked. Whether you like it or not, VH is a legitimate media source, offering both news and commentary, and we hope, some occasional entertainment. The fact that blogging is not my full-time job doesn't make my legitimacy questionable.

Where's that convenient "communication" problem when you need it to beat the administration about the ears? Mr. Seabrook was right when he said he's "never seen such hostility from a council toward a mayor." Explains a lot, Mark.

New Albany enters a new era in municipal services in just a few hours as the city contracts with Southern Indiana Waste Systems to pick up residential garbage and recycling. Lots of interesting items in this contract, but nary a sign to support the loony conspiracy theories bedeviling the blogosphere.

As a public service and recorded here for Internet posterity, Volunteer Hoosier presents you with the contract. That's right. A real document signed by real people working to serve this city.



AGREEMENT FOR COLLECTION
OF RESIDENTIAL SOLID WASTE AND
RECYCLABLES IN THE
CITY OF NEW ALBANY, INDIANA
This agreement is made and entered into this 30th day of December, 2005 by and between the City of New Albany, Indiana (the "City") and CLARK-FLOYD LANDFILL, L.L.C./ECO-TECH L.L.C., SOUTHERN INDIANA WASTE SYSTEMS, L.L.C. and/or its assign as defined in this agreement (hereafter "Contractor").
RECITALS
A. On November 1, 2005, the City issued a Request for Bids for the collection and disposal of residential solid waste. The City previously requested Bids on April 5, 2005 and awarding this contract the City specifically rejected all bids from the previous request for bids.
B. After reviewing all bids submitted in response to the Request for Bids, the City determined that the best bid was a collection of solid waste and recyclables bid submitted by the Contractor for the collection and disposal of residential solid waste and the collection and recycling recyclables for the City.
C. The City and Contractor now desire to enter into this Agreement, setting forth the terms and conditions under which the Contractor will collect and dispose of residential solid waste and collect and recycle recyclables.
NOW THEREFORE, in consideration of the foregoing and the mutual covenants, promises and undertakings of the Parties as herein set forth herein, it is hereby agreed by and between the Parties as follows:
1.0 DEFINITIONS
For the purpose of this Agreement, the following words and/or terms shall be defined and interpreted as follows:
1.0.1 "Applicable Laws" shall mean all applicable statutes, rules having the force of law, regulations, laws, by-laws and ordinances of the United States, the State of Indiana, and municipalities or governmental entities having jurisdiction over the services performed by Contractor pursuant to this agreement.
1.0.2 "Commencement Date" shall mean January 1, 2006.
1.0.3. "CPI" shall mean the Consumer Price Index for all Urban Consumers (CPI-U): U.S. city average, under the following expenditure and commodity and service group: Water and sewer and trash collection services.
1.0.4 "Effective Date" shall mean the last date this Agreement is signed by a party.
1.0.5 "Force Majeure" means any event relied upon by The Contractor or the City, as applicable, as justification for delay in or excuse from complying with any obligation required under this Agreement, including, without limitation: (i) an act of God, landslide, lightning, earthquake, fire, explosion, storm, extremely abnormal and excessively inclement weather, tornado, flood or similar occurrence; (ii) the denial, loss, suspension, expiration, termination, failure of renewal, or any permit, license or other governmental approval required to dispose of and/or accept Residential Solid Waste at a transfer station or disposal facility; (iii) the adoption or change (including a change in interpretation or enforcement) of any federal, state, county, or local law, rule, permit, regulation or ordinance after the date of this Agreement, applicable to either party's obligations under this Agreement, including, without limitation, such changes that have a substantial, material and adverse effect on the cost of performing the obligations set forth in this Agreement; (iv) a strike, work slowdown, labor disturbance or other labor unrest; or (v) acts of a public enemy, acts of war, terrorism, insurrections, riots, civil disturbances, blockades and similar events.
1.0.6 "Recycling Bin" shall mean an 18 gallon bin, provided and maintained by the City, for use by Residents to contain only their Residential Recyclables.
1.0.7 "Residential Cart" shall mean a 90-96 gallon "Toter" brand or its equivalent wheeled cart, with necessary hardware for use with tipper type trucks, provided and maintained by the City, for use by Residents to contain their Residential Solid Waste.
1.0.8 "Residential Recyclables" shall mean newspapers, aluminum cans, tin cans, and plastic #1 and #2 bottles and other items listed on Schedule A, as contained in the bid by the Contractor, and such other items or materials which are agreed upon by the parties. And attached hereto and made a part of.
1.0.9 "Residential Solid Waste" shall mean garbage, refuse and trash generated by Residents occupying Residential units, including one (1) bulk item and/or "white good" per pick up, excluding Unacceptable Waste.
1.10 "Residential Unit" shall mean any single family and multi-family household of eight (8) units or less located within the geographic boundaries of the City. The term Residential Unit does not include dwelling units in a mobile home park or commercial facility, however if the City bills said facility then the Contractor shall include the same in its service.
1.11 "Residential Units Number" shall mean the number of Residential Units in the City, which, as of the Commencement Date, is agreed upon by the parties to be Twelve Thousand (12,000). The Residential Units Amount shall be adjusted upon a change in the number of Residential Units, as verified through a count of such Residential Units. This count is to be updated by actual count certified to by the Contractor and the City at least on a once yearly basis.
1.12 "Unacceptable Waste" shall mean hazardous materials; liquids of any kind; inflammable and/or explosive materials; dirt, stones, asphalt, gravel, broken or whole bricks, concrete, steel, iron and other refuse from repairs, alterations or new construction of buildings and sidewalks, including remodeling debris; hot ashes; large automobile/truck parts and tires; any material prohibited for disposal in landfills; yard waste.
2.0 CONTRACTORS RESPONSIBILITIES

2.01 Contractor shall collect Residential Solid Waste, placed in Residential Carts or in cans weighing not more than forty (40) pounds or in tied plastic bags, and brought to the curb by Residents, once per week.

2.02 The Contractor shall collect Residential Recyclables, placed in Recycling Bins and brought to the curb and/or alley or designated area by Residents, two times per month however the Contractor shall have no obligation to collect or remove materials other than Residential Recyclables which are placed in Recycling Bins or suitable bins or tied bundles of paper or cardboard.

2.03 The Contractor shall dispose of all Residential Solid Waste collected pursuant to this contract at the Clark-Floyd Landfill.

2.04 Contractor shall deliver Residential Recyclables to a recycling facility.

2.05 In the performance of its obligations hereunder, Contractor shall materially comply with all Applicable Laws.

2.06 The employees of Contractor shall use the sidewalks, paths, driveways, roadways or other property improvements of either the City and/or the Residents in the collection of Residential Solid Waste and Residential Recyclables and shall not cut through shrubbery or hedges or cross lawns.

2.07 The Contractor shall provide and maintain all equipment necessary for the collection of Residential Solid Waste and Residential Recycling. Collection vehicles shall have fully enclosed bodies with self-contained mechanisms to contain the material collected. All vehicles shall be well maintained and in good condition.

2.08 The Contractor’s employees shall be competent, courteous, and orderly while performing services within the city at all times.

2.09 The Contractor shall within five (5) working days respond to all valid complaints or requests for service from Residents related to it’s service and its collection of Residential Solid Waste and Residential Recyclables; provided, however, the Contractor shall respond to missed pickups within twenty-four (24) hours of receiving notification excepting Fridays, Saturdays, and Sundays.

2.10 Contractor shall be responsible for damage to private property arising from the collection operations. The Contractor shall indemnify and hold harmless the City for any liability and/or damages resulting from the negligence or willful misconduct of the Contractor, its agents, employees, or subcontractors in connection with the performance of its duties under this Agreement.

3.0 CITY RESPONSIBILITIES

3.01 The City shall provide each Resident with a Residential Cart and a Recycling Bin and shall repair or replace Residential Carts and Recycling Bins as necessary.

3.02 The City shall pay the Contractor the fees set forth in Section 5.

3.03 The City shall comply with its obligations under the Lease Agreement as set forth in Section 11.

3.04 The City shall indemnify and hold harmless the Contractor for any liability and/or damages resulting from the negligence or willful misconduct of the City, its agents, employees, or subcontractors in connection with the performance of its duties under this Agreement.

3.05 The City warrants that it has complied with all notices necessary under its contract with the sanitation workers and agrees to indemnify and hold harmless the Contractor, in the event of any costs or damages arising out of any dispute over the notices necessary under said contract or any other disputes the union or its employees may have with the City.

4.0 COLLECTION METHODS

4.01 The Contractor shall provide (i) one pickup of Residential Solid Waste from each Residential Unit each week, and (ii) one pickup of Residential Recyclables from each Residential Unit, two (2) times per month, on a schedule to be mutually agreed upon. When a holiday falls on a workday, said pickup and subsequent pickups shall be made no later than twenty-four (24) hours following the regularly scheduled time, except when the holiday falls on a Friday. Holidays are defined as Memorial Day, Independence Day, Labor Day, Thanksgiving, Christmas, and New Years Day.

4.02 Collection shall take place on the basis of the Contractors rerouting schedule after notice to the City and the public. No regular collection shall take place on Saturday, Sunday or holidays referenced in Section 4.01 above, except in the case of an emergency and when mutually agreed upon by the parties.

4.03 The Contractor shall collect Residential Solid Waste on the same day each week and shall collect Residential Recyclables on the same day every two times per month. The Contractor will attempt to start routes at the same time and location each week.

4.04 The Contractor shall pick up Residential Solid Waste and Residential Recyclables from the curb and/or alley or designated area from the Residential Unit.

4.05 The parties here to agree that for a period of no more than ninety (90) days that operational procedures may be adjusted by the Contractor in coordination with the City so as to insure a smooth transitional period.

5.0 PAYMENT BY THE CITY

5.01 On January 15, 2006 and January 30, 2006 and on the 15th and 30th day of each month thereafter through out the Term of this Agreement, the City shall pay the Contractor the sum of Twelve Dollars and Ninety Cents ($12.90) multiplied by the Residential Units Number, in consideration for its collection of Residential Solid Waste and collection of Residential Recyclables during such month. Such payment each month shall be via wire transfer.

5.02 Payment made pursuant to Section 5.01 above shall be final as of the date received by the Contractor, and neither party shall claim underpayment or overpayment as a result of subsequent adjustments to the Residential Units Number pursuant to Section 1.11.

5.03 The amounts set forth in Section 5.01 above shall be adjusted on January 1, 2007, and thereafter on each January 1 throughout the Term of this Agreement, by determining the change in the CPI from the previous January 1.

5.04 The City and the Contractor may enter into further extensions of the Contractors services, such as, but not limited to the following: additional pickups other than residential, repair and deliver of the “Toter” or similar types of service, at a price or prices to be agreed upon by the parties hereto.

6.0 TERM

The term of this Agreement (the “Term”) shall begin on the Effective Date and shall terminate Five (5) years from the commencement date, however the same shall be automatically renewed for two additional years unless both parties agree in writing that it shall not be renewed. In any event the term shall not extend beyond December 31, 2012.

7.0 DEFAULT AND TERMINATION

7.01 In the event the Contractor fails to perform any material obligation under this Agreement, the City may declare the Contractor in default of this Agreement. In such event, the City shall serve the Contractor with written notice of such default, stating the reasons for default. If the default is not cured within sixty (60) days of receipt of such notice , the City shall have the right to terminate this Agreement as provided in Section 7.02 below.

7.02 The City may terminate this Agreement upon sixty (60) days written notice to the Contractor if it is in default of this Agreement and has failed to cure such default pursuant to Section 7.01 above.

7.03 In the event the City fails to perform any material obligation under this Agreement, the Contractor may declare the City in default of this Agreement. In such event, Contractor shall serve the City with written notice of such default, stating the reason for default. If the default is not cured within sixty (60) days of receipt of such notice, the Contractor shall have the right to terminate this Agreement as provided in Section 7.04 below; provided, however, that if the default is for failure to pay The Contractor pursuant to Section 5 above, the City shall have ten (10) days, rather than thirty (60) days, to cure such default.

7.04 The Contractor may terminate this Agreement upon sixty (60) days written notice to the City if the City is in default pursuant to Section 7.03 above; provided, however, that if the default is for failure to pay the Contractor pursuant to Section 5 above, the Contractor may terminate this Agreement upon ten (10) days written notice to the City.

7.05 Nothing in this Section 7 shall prohibit either party from seeking any other remedy, including but not limited to the remedy of specific performance.

8.0 FORCE MAJEURE

If the Contractor or the City is prevented or rendered unable, wholly or substantially, by Force Majeure to carry out any of its obligations under this Agreement, then such obligations of the Contractor or the City may be suspended during the continuation of any inability so caused by the Force Majeure, but for no longer period. If either party intents to rely upon Force Majeure to suspend obligations as provided in this Section, such party shall notify the other party in writing as soon as practicable, describing in reasonable detail the Force Majeure and a plan for resolving the Force Majeure. The party relying on Force Majeuer shall have the duty and obligation to use reasonable commercial efforts to promptly cure or eliminate such Force Majeure. Nothing herein shall in any way be construed as allowing deductions to or pro rating of the monthly payments due the Contractor each month under this contract.

9.0 INSURANCE

The Contractor agrees to maintain at all times during the Term the following insurance coverages:

a) Workers’ Compensation - Statutory
b) Employer’s Liability - $1,000,000/occurrence
c) Automobile Liability Bodily Injury, Property Damage, Contractual Liability & Sudden and Accidental Pollution - $1,000,000/occurrence
d) Commercial General Liability Personal Injury Property Damage & Contractual Liability Combined - $1,000,000/occurrence.

All such insurance policies shall provide that they shall not be canceled and no material changes in coverage shall be made without at least thirty (30) days prior written notice to the City. The insurance policies required hereunder, with the exception of Workers’ Compensation Policies, shall name the City as additional insured’s.

10. REPRESENTATIONS AND WARRANTIES OF THE CITY

The City represents and warrants to the Contractor as follows:

10.01 The City is duly organized, validly existing and in good standing under the laws of the State of Indiana.

10.02 This Agreement has been duly executed and delivered by the City and constitutes a legal, valid and binding obligation of the City, enforceable against the City in accordance with its terms, except as same may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws affecting the enforcement of creditors’ rights generally and general equitable principles regardless of whether such enforceability is considered in a proceeding at law or equity.

10.03 The City has all requisite power and authority to execute and deliver this Agreement and perform its obligations hereunder. The City has taken all action necessary to authorize the execution and delivery of this agreement, the performance of its obligations hereunder and the consummation of the transactions contemplated hereby to be consummated by it.

10.04 The City recognizes that the Contractor is investing a considerable sum in equipment and other payments and that in the contract term (Years) herein set out, is to an inducement for the Contractor to enter into said contract under the terms herein set forth.

11.0 REPRESENTATIONS AND WARRANTIES OF THE CONTRACTOR

The Contractor represents and warrants to the City of New Albany as follows:

11.01 The Contractor is a Kentucky limited liability company duly organized, validly existing and in good standing under the laws of the Commonwealth of Kentucky and qualified to do business in Indiana and its assign is an Indiana limited liability company.

11.02 This Agreement has been duly executed and delivered and constitutes a legal, valid and binding obligation of the Contractor in accordance with its terms, except as same may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws affecting the enforcement of creditors’ rights generally and general equitable principles regardless of whether such enforceability is considered in a proceeding at law Or in equity.

11.03 The Contractor has the corporate power and authority to execute and deliver this Agreement and to perform its obligations hereunder. The Contractor as taken all action necessary to authorize the execution and delivery of this Agreement, the performance of its obligations hereunder and the consummation of the transactions contemplated to be consummated by it.

12. NOTICES

All notices or other communications to be given hereunder shall be in writing and shall be sent by facsimilie, overnight delivery or registered or certified United States mail, return receipt requested, properly addressed as follows:

To The Contractor:
Clark Floyd Landfill, L.L.C./Eco-Tech, L.L.C.
Attn: Robert Lee, President
At its offices: P.O. Box 2128, Clarksville, IN 47131

To the City:
City of New Albany
311 Hauss Square
New Albany, IN 47150
Attn: Mayor

13. The parties hereto recognize and agree, that the Contractor will establish a separate legal entity for th buying of equipment and the hiring of employees and conducting the business of this contract, and the City agrees to allow the assignment of this contract to said entity subject to all the conditions herein contained.

14. MISCELLANEOUS

This Agreement sets forth the entire agreement and understanding of the parties hereto with respect to the subject matter of this Agreement and supersedes all arrangements, communications, representations or warranties, whether oral or written, by any officer, employee or representative of either party hereto. This Agreement may not be modified, amended, supplemented, canceled or discharged, except by written instrument executed by all of the parties hereto. There are no restrictions, representations, warranties, covenants or undertakings other than those expressly set forth or referred to herein. No waiver shall be effective unless it is in writing and is signed by the party asserted to have granted the waiver. The provisions of this Agreement are independent of and severable from each other, and no provision shall be affected or rendered invalid or unenforceable by virtue of the fact that any provision may be invalid or unenforceable in whole or in part. This Agreement is not intended to confer upon any third parties, other than the parties hereto, any rights or remedies. This Agreement shall be construed and enforced in accordance with the laws of the State of Indiana. This Agreement may be executed in any number of counterparts, each of which shall be an original, but all of which together shall constitute one and the same instrument. In the event of any dispute over any part of this agreement as between the parties the parties agree to arbitration prior to any law suit being filed on matters of interpretation of this contract. In all other events the any legal action or proceeding arising out of or related to this Agreement, the prevailing party shall be entitled to recover from such losing party all of its costs and expenses incurred in connection with such proceeding, including, without limitation, court costs reasonable attorney’s fees and expert witness and consultation fees, incurred at either the trial level or the appellate level.

The City of New Albany
President, Board of Public Works

(signed and witnessed) Anthony B. Toran, President
Date: December 30, 2005

CLARK-FLOYD LANDFILL, LLC/ECO-TECH, L.L.C.

(signed and witnessed) Robert Lee, President
Date: December 30, 2005

5 Comments:

Blogger oldernewalbanian said...

Randy, I was reading the new contract for Southern Indiana Waste Systems. I understand the outsourced company will be picking up residential only. Is that they way you understand it? Does that mean the city will still be picking up businesses. If the new company will not pick up unacceptable waste (see 1.12 "unacceptable waste"), how can the city pick up unacceptable waste? I have said right along that the city was illegally picking up at least one illegal dumpster in NA and probably far more. Do you know and/or can you find out? Thanks

Saturday, December 31, 2005 6:46:00 PM  
Blogger All4Word said...

They will be picking up commercial, but it is identified as anyone the city is already billing, and that limits commercial to businesses that use the Toters and to a specifically defined size of Dumpster or rather small size.

From what you've described, your old pals on 15th may just have to find a fee-based collector. I don't imagine SIWS will allow "unacceptable waste" to be picked up any longer, at least not under this contract.

Sunday, January 01, 2006 2:35:00 PM  
Blogger oldernewalbanian said...

Thank you very much for the information, All4Word. I sure hope you are correct. Certainly, it would make sense if the new company will not pick up unacceptabel waste, the city sure should not. Thanks again for the information.

Monday, January 02, 2006 2:27:00 AM  
Blogger All4Word said...

Section 5.0 seems to be inartfully drafted, perhaps because of a late edit. It is clear the parties do not contemplate two payments per month of $12.90 per Residential Unit, and that's fairly well documented with the term "monthly payment," but the parties should clean this one up.

Also, Section 7.03 is internally inconsistent on notice provisions.

There are other drafting errors and typos included, but most of these are poor word choices that don't necessarily confuse any but those of us for whom clarity in language is important.

EXAMPLE: The use of "insure" where "ensure" was meant.

Monday, January 02, 2006 11:09:00 AM  
Blogger Tim Deatrick said...

careful Randy, if you keep getting public information the solna crowd might call you the mayor instead of the deputy mayor

Tuesday, January 03, 2006 1:30:00 PM  

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