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HomeMy WebLinkAbout4287RESOLUTION NO.4 2 8 7 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF AUBURN, WASHINGTON, AUTHORIZING THE MAYOR AND THE CITY CLERK TO EXECUTE AN AMENDMENT TO THE COMPREHENSIVE GARBAGE, RECYCLABLES, AND YARD DEBRIS COLLECTION CONTRACT BETWEEN THE CITY OF AUBURN AND WASTE MANAGEMENT OF WASHINGTON, INC. DBA RST DISPOSAL, ADOPTED BY RESOLUTION NO. 3362 ON JULY 16, 2001 WHEREAS, Contractor collects garbage, recyclables and yard debris in the City under a Comprehensive Garbage, Recyclables, and Yard Debris Collection Contract, adopted by Resolution No. 3362 dated July 16, 2001; and WHEREAS, Contractor also performs solid waste collection in certain areas of unincorporated King County contiguous to the City's corporate boundaries and within its Urban Growth Area under the authority contained in Certificate of Convenience and Necessity No. G-237 issued by the Washington Utilities and Transportation Commission ("WUTC"); and WHEREAS, on August 21, 2007, the voters elected to have the area known as West Hill annexed into the corporate boundaries of the City (the "West Hill Annexation Area"); and WHEREAS, the City Council has approved the West Hill annexation by City of Auburn Ordinance Number 6122; and Resolution No. 4287 January 2, 2008 Page 1 WHEREAS, the Principle Contract contains provisions addressing the transition of annexed areas into the City Service Area under the Principle Contract; and WHEREAS, both the City and Contractor desire to modify the terms of the Principle Contract with regard to the manner and means by which Contractor provides solid waste collection services in the West Hill Annexation Area; and NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF AUBURN, WASHINGTON, IN A REGULAR MEETING DULY ASSEMBLED, HEREWITH RESOLVES THAT: Section 1. The Mayor and City Clerk of the City of Auburn, Washington, are herewith authorized and directed to enter into a Comprehensive Garbage, Recyclables and Yard Debris Collection Contract between the City of Auburn and Waste Management of Washington, Inc., (dba RST Disposal). A copy of said contract is attached hereto and denominated as Exhibit "A" and made a part hereof as though set forth in full herein. Section 2. Implementation. The Mayor of the City of Auburn is hereby authorized to implement such administrative procedures as may be necessary to carry out the directions of this resolution. Resolution No. 4287 January 2, 2008 Page 2 Section 3. Effective Date. This Resolution shall take effect and be in full force upon passage and signatures hereon. DATED and SIGNED THIS DAY OFJAwtit, 2008. ",?, .4 a - Z? -1-1 //vTr-m --MET SA B. LEWIS C?- MAYOR ATTEST: Danielle Daskam, City Clerk Resolution No. 4287 January 2, 2008 Page 3 APPROVED AS TO FORM: EXHIBIT "A", RESOLUTION NO. 4287 Comprehensive Garbage, Recyclables and Yard Debris Collection Contract Amendment for West Hill Annexation Area City of Auburn and Waste Management of Washington, Inc. (dba RST Disposal) This Amendment to the Comprehensive Garbage, Recyclables and Yard Debris Collection Contract, dated July 16, 2001 (hereafter "Amendment") is made and entered into this day of , 2007, by and between the City of Auburn, a municipal corporation (hereafter "City"), and Waste Management of Washington, Inc. d/b/a RST Disposal, a Delaware corporation (hereafter "Contractor"). RECITALS WHEREAS, Contractor collects garbage, recyclables and yard debris in the City under a Comprehensive Garbage, Recyclables and Yard Debris Collection Contract, dated July 16, 2001 (the "Principle Contract"); and WHEREAS, Contractor also performs solid waste collection in certain areas of unincorporated King County contiguous to the City's corporate boundaries and within its Urban Growth Area under the authority contained in Certificate of Convenience and Necessity No. G-237 issued by the Washington Utilities and Transportation Commission ("WUTC"); and WHEREAS, on August 21, 2007, the voters elected to have the area known as West Hill annexed into the corporate boundaries of the City (the "West Hill Annexation Area"); and WHEREAS, the City Council has approved the West Hill annexation by City of Auburn Ordinance Number 6122; and WHEREAS, the Principle Contract contains provisions addressing the transition of annexed areas into the City Service Area under the Principle Contract; and WHEREAS, both the City and Contractor desire to modify the terms of the Principle Contract with regard to the manner and means by which Contractor provides solid waste collection services in the West Hill Annexation Area; and WHEREAS, the Principle Contract allows for its terms to be amended, altered, or modified by written authorization by the City and Contractor; and NOW, THEREFORE, in consideration of the mutual covenants, agreements, and promises herein contained, City and Contractor do hereby agree to this Amendment as follows: AGREEMENT 1. Scope of Amendment 1.1 Term of Amendment The term of this Amendment is ten (10) years, starting January 1, 2008, PROVIDED That and conditioned upon the Auburn - West Hill annexation - Ordinance No. 6122 - becoming effective, and with the term of this Amendment expiring December 31, 2018. Contractor may, at its option, terminate this Amendment sooner if the City negotiates a comprehensive agreement with Contractor for solid waste collection services throughout the original City Service Area and the West Hill Annexation Area, together, following the termination of the Principle Contract and prior to the termination of this Amendment. If it chooses to negotiate a comprehensive agreement with Contractor, the City shall provide notice of its election no later June 30th of the year prior to the expiration of the Principle Contract term or the expiration of a previous extension to the Principle Contract. City of Auburn 1 January 2, 2008 West Hill Annexation Amendment 1.2 Relationship to Principle Contract Except as expressly provided herein, all terms and conditions of the Principle Contract shall remain in full force and effect with regard to Contractor's performance in the City Service Area other than the West Hill Annexation Area. 2. Scope of Work 2.1 Annexation 2. 1.1 Service Area The Contractor will provide all services pursuant to this Amendment throughout the West Hill Annexation Area, as illustrated in Attachment 1. 2.1.2 WUTC Certificate Cancellation and Exclusive Collection Right Effective on January 1, 2008, the portion of Contractor's Certificate of Convenience and Necessity No. G-237 that authorizes services in the West Hill Annexation Area shall be cancelled, and service under this Amendment shall be provided in lieu of a franchise required under RCW 35A.14.900. 2.2 Collection Services The Contractor shall provide all labor, materials, facilities, services and equipment necessary to perform solid waste collection services in the West Hill Annexation Area at the same levels and configurations of services for Garbage, Recyclables and Yard Debris, as those provided under its WUTC certificate in the unincorporated area of King County adjacent to the City. 2.3 Responsibilities of the Parties 2.3.1 Contractor's Responsibilities The Contractor shall be responsible for: (1) collecting Garbage in the West Hill Annexation Area and delivering the waste to the King County Disposal System; (2) collecting, processing and marketing of Recyclables and Yard Debris collected by the Contractor from Residential and Commercial Customers in the West Hill Annexation Area; (3) performing customer service and billing; (4) procuring all equipment and bearing all operating and maintenance costs for collection and processing or disposal of Garbage, Recyclables and Yard Debris, including proper safety equipment and insurance for vehicles and workers; (5) providing and supervising all labor to accomplish the Collection Services including labor to collect materials, maintain equipment and provide customer service and billing functions; (6) operating in conformance with WUTC regulations and complying with all other applicable laws; City of Auburn 2 January 2, 2008 West Hill Annexation Amendment (7) meeting all non-discrimination and OSHA/WISHA standards and all environmental standards and regulations; (8) providing a safe working environment and comprehensive liability insurance coverage as required by the WUTC regulations; and (9) remitting City garbage utility taxes in the amount of six percent (6%) of the gross receipts against and upon the total annual revenues from solid waste collection in the West Hill Annexation Area. 2.3.2 City's Responsibilities. The City shall be responsible for: (1) public education; (2) monitoring and evaluation of collection operations with the cooperation of the Contractor; (3) holding periodic operations meetings with the Contractor, as necessary; and (4) processing garbage utility taxes submitted by Contractor in accordance with City codes. 3. Compensation 3.1 Compensation to the Contractor The Contractor shall be responsible for billing and collecting charges from residential and commercial customers in the West Hill Annexation Area in compliance with the WUTC's regulations and in accordance with the rates listed in Contractor's then-applicable WUTC tariff, which rates comprise the total compensation due to the Contractor under this Amendment. The Contractor may charge separately for Garbage, Recyclables and/or Yard Debris collection services. State and local taxes may be itemized separately at Contractor's discretion, in compliance with billing practices permitted by the WUTC's regulations. 3.2 Compensation to the City As authorized under Ch. 3.41 Auburn City Code, the City imposes a Garbage Utility Tax in the amount of six percent (6%) of the gross receipts against and upon the Contractor's total annual revenues from performing solid waste collection in the West Hill Annexation Area, which Contractor shall be responsible for remitting to the City on a timely basis. The amount attributable to the Contractor's cost of paying the City's Garbage Utility Tax, Ch. 3.41 Auburn City Code, shall not cause the payment due from customers to be increased above the rates in Contractor's published WUTC tariff so long as the tax remains at six percent (6%). The City may, from time to time, increase the amount of the Garbage Utility Tax or impose other taxes that shall be assessed and payable as directed by City ordinance, in which case Contractor's collection rates may increase in an amount necessary to recover the expense of paying the increased or additional taxes, as would be permitted under the WUTC's regulations. City of Auburn 3 January 2, 2008 West Hill Annexation Amendment 3.3 Rate Adjustments - Amendment The Contractor's rates charged for collection services in the West Hill Annexation Area may change as permitted by WUTC regulations and subject to WUTC review and approval of changes in the rates set forth in Contractor's published tariff that is applicable to Contractor's solid waste collection services in the unincorporated portion of King County adjacent to the City. Periodic adjustments may be made to Contractor's published tariff rates to reflect increases or decreases in Contractor's expenses, including changes in the disposal fees. If new City, County or State fees, charges or taxes are imposed or the rates of existing governmental fees, charges or taxes are changed after the execution date of this Amendment, including the City's six-percent Garbage Utility Tax, Contractor may pass through any additional taxes or fees as would be permitted under WUTC regulations. 3.4 Rate Adjustments - Principle Contract The Contractor's rates charged for collection services in the City Service Area may change as permitted:,-. ;•:•." by Section 3.3 of the Principle Contract as amended below. Except as provided herein, all other sections ; of the Principle Contract regarding Contractor's Compensation shall remain in full force and effect, and nothing in this amended section shat ffect other terms and conditions of this Amendment. ' •;» The Contractor's collection service gges, cluding waste disposal fees, for each level of service shall increase or decrease each year by ems) one hundred percent (100%) of the annual 1.7 iv I er rice Index for the Seattle-Everett Metropolitan Area for Urban percentage change in the Consu' Wage Earners and Clerical Work "e&, all items (Revised Series) (CPI-W1967=100), prepared by the United States Department of Labor, Bureau of Labor Statistics or a replacement index. Adjustments will be based on the twelve-month period ending July 31 st of the previous year. Adjustments to the Contractor's collection service charge will be made in units of one cent ($0.01). Fractions less than one cent ($0.01) will not be considered when making adjustments. Rates will be adjusted annually, beginning January 1, 2003. On or by October 15th of each year, starting October 15th, 2002, the Contractor shall submit to the City for review and approval a Rate Adjustment Statement calculating the new rates for the next year. On City approval, the new rates will take effect on January 1 st of the following year. Periodic adjustments will also be made to Contractor collection rates to reflect increases or decreases in King County disposal fees for solid waste. In the event of a change in disposal fees, the disposal fee component of rates charged to customers will be adjusted, based on container contents weights specified by the Contractor in its proposal and included in Attachment B of the Principle Contract. Specific example of rate modifications due to Consumer Price Index and disposal fee changes are provided in Attachment C of the Principle Contract. Should the Contractor be required by the City or other governmental authority to use disposal or Yard Debris processing sites other than those being used at the initiation of the Principle Contract, the Contractor will submit a detailed proposal for the adjustment of the rates to reflect any additional cost or savings to the Contractor. The City and Contractor agree to negotiate in good faith any changes to the rates to offset these costs or savings. City of Auburn 4 January 2, 2008 West Hill Annexation Amendment The Contractor shall not adjust or modify rates due to employee wage increases, changes in Yard Debris processing fees, the value of Recyclables, Garbage collection service level shifts, or other changes affecting the collection system. At the time of City's decision to extend the Principle Contract through invoking contract extension options, Contractor can present a request for relief for any adverse market changes that have occurred during the previous period of the contract. The City is under no obligation to give consideration for those adverse changes as a condition for invoking the contract extension option. 4. Failure to Perform, Remedies, Termination The City may declare the Contractor in default of this Amendment if it violates any provision of this Amendment or in the event of any violation which shall include, but not be limited to, the following: (1) The Contractor fails to provide services under this Amendment for a period of more than five days; (2) The Contractor fails to obtain and maintain any permit required by the City, County, or any federal, state, or other regulatory body in order to collect materials under contract; or (3) The Contractor's noncompliance creates a hazard to public health or safety. The City reserves the right to pursue any remedy available at law for any default by the Contractor, including the ability to respond to any alleged default in the manner described in the Principle Contract. 5. Notices All notices required or contemplated by this Amendment shall be personally served or mailed, (postage prepaid and return receipt requested), addressed to the parties as follows: To City: City Manager City of Auburn 25 West Main Street Auburn, WA 98001 To Contractor: District Manager Waste Management of Washington, Inc. 801 Second Avenue, Suite 614 Seattle, WA 98104 6. General Terms 6.1 Collection Right The Contractor shall be the exclusive provider with which the City will contract to collect Garbage, Yard Debris and Recyclables placed in designated containers and set out in the regular collection location within the West Hill Annexation Area. When asked by the Contractor, the City shall use its best efforts to protect this right of the Contractor; however, the City shall not be obligated to join or instigate litigation to protect the right of the Contractor. City of Auburn 5 January 2, 2008 West Hill Annexation Amendment The Contractor shall not have any exclusive rights to collect, process or dispose of: (1) Garbage, Recyclables or Yard Debris self-hauled by its generator; (2) recyclable materials generated by Commercial Customers; (3) Source-Separated Recyclables hauled by common or private carriers (including drop-off recycling sites); (4) construction, demolition and landclearing materials segregated from Garbage and hauled by any entity; or (5) Yard Debris generated and hauled by private landscaping services. The Contractor shall retain ownership interest in Garbage, Recyclables and Yard Debris once these materials are placed in Contractor-owned or City-owned containers. 6.2 Access to Records The Contractor shall maintain in its local office full and complete operations and customer service records that at all reasonable times shall be open for inspection and copying for any reasonable purpose by the City. In addition, the Contractor shall maintain reporting records and billing records pertaining to the Amendment as required by WUTC regulations. The City will be allowed access to these records for audit and review purposes. 6.3 Contractor to Make Examinations The Contractor has made his own examination, investigation and research regarding proper method of doing the work, and all conditions affecting the work to be done, and the labor, equipment and materials needed thereon, and the quantity of the work to be performed. The Contractor agrees that he has satisfied himself to his own investigation and research regarding all of such conditions, and that his conclusion to enter into this Amendment was based upon such investigation and research, and that he shall make no claim against the City because of any of the estimates, statements or interpretations made by any officer or agent of the City which may be erroneous. The Contractor assumes the risk of all conditions foreseen and unforeseen, and agrees to continue to work without additional compensation under whatever circumstances may develop other than as provided herein. 6.4 Availability of Collection Vehicles The Contractor's equipment used in the performance of this Amendment shall be available for use by the City in case of contract default, as described in Section 4.2 and Section 6.4 of the Principle Contract. 6.5 Insurance The Contractor shall procure and maintain for the duration of the Amendment, insurance against claims for injuries to persons or damage to property which may arise from or in connection with the performance of the work hereunder by the Contractor, their agents, representatives, employees or subcontractors in the amounts and coverages required by the WUTC's regulations. 6.6 Performance Bond The Contractor shall provide and maintain at all times, a valid Contractor's Performance and Payment Bond or bonds, letter of credit or other similar instrument as required under the Principle Contract. City of Auburn 6 January 2, 2008 West Hill Annexation Amendment 6.7 Indemnification (1) The Contractor shall at all times during the term of the Amendment indemnify, hold harmless and defend the City, their elected officials, officers, employees, agents and representatives, from and against any and all claims, actions, suits, liability, loss, costs, expenses, and damages of any nature whatsoever, including costs and attorney's fees in defense thereof, or injuries, sickness or death to persons, or damage to property, which is caused by or arises out of the Contractor's exercise of rights and privileges granted by the agreement, provided, however, that (A) The Contractor's obligation to indemnify, defend and hold harmless shall not extend to injuries, sickness, death or damage caused by or resulting from sole willful or negligent acts or actions of the City, its officers, agents or employees; and (B) The Contractor's obligation to indemnify, defend and hold harmless for injuries, sickness, death or damage caused by or resulting from concurrent willful or negligent acts or actions of the Contractor and the City shall apply only to the extent of the Contractor's negligence. (2) With respect to the obligations to hold harmless, indemnify and defend provided for herein, as they relate to claims against the City, its officers, agents and employees, the Contractor agrees to waive the Contractor's immunity under industrial insurance, Title 51 RCW, for any injury, sickness or death suffered by the Contractor's employees which is caused by or arises out of the Contractor's negligent exercise of rights or privileges granted by the agreement. This waiver is mutually agreed to by the parties. 6.8 Assignment of Contract 6.8.1 Assignment or Pledge of Moneys by the Contractor The Contractor shall only assign or pledge any of the moneys due under this Amendment in accordance with the limitations and obligations set forth in the Principle Contract. 6.8.2 Assignment; Subcontracting; Delegation of Duties The Contractor shall not assign or sub-contract any of the work or delegate any of its duties under this Amendment without the prior written approval of the Administrator unless there is an intra-company transfer between different subsidiaries or branches of the parent corporation, or transfers resulting solely from corporate restructuring. When requested, approval by the Administrator of a subcontract or assignment shall not be unreasonably withheld. In the event of an assignment, sub-contracting or delegation of duties, the Contractor shall remain responsible for the full and faithful performance of this contract and the assignee, subcontractor, other obligor shall also become responsible to the City for the satisfactory performance of the work assumed. The Administrator may condition approval upon the delivery by the assignee, subcontractor or other obligor of its covenant to the City to fully and faithfully complete the work or responsibility undertaken. 6.9 Laws to GovernNenue This Amendment shall be governed by the laws of the State of Washington both as to interpretation and performance. Venue will be in Superior Court in the State of Washington for King County. City of Auburn 7 January 2, 2008 West Hill Annexation Amendment 6.10 Compliance With Law The Contractor, its officers, employees, agents and subcontractors shall comply with applicable federal, state, county, regional or local laws, statutes, rules, regulations or ordinances, including those of agencies having jurisdiction over the project, in performing its obligations under the Contract. Such compliance shall include abiding by all applicable federal, state and local policies to ensure equal employment opportunity based on ability and fitness to all persons regardless of race, creed, color, national origin, religion, sex, physical handicaps or age. Conditions of the Federal Occupational Safety and Health Act of 1970 (OSHA), the Washington Industrial Safety and Health Act of 1973 (WISHA), and standards and regulations issued under these Acts from time-to-time must be complied with, including ergonomic and repetitive motion requirements. The Contractor must indemnify and hold harmless the City of Auburn from all damages assessed for the Contractor's failure to comply with the Acts and Standards issued thereunder. The Contractor is also responsible for meeting all pertinent local, state and federal health and environmental regulations and standards applying to the operation of the collection and processing systems used in the performance of this Contract. The Contractor is specifically directed to observe all weight-related laws and regulations in the performance of these services, including axle bridging and loading requirements. 6.11 Permits and Licenses The Contractor and subcontractors shall secure a City of Auburn business license and pay fees and taxes levied by the City. The Contractor shall have or obtain all permits and licenses necessary to provide the services herein at its sole expense. The Contractor shall be solely responsible for all taxes, fees and charges incurred, including but not limited to license fees, all federal, state, regional, county and local taxes and fees, including income taxes, property taxes, permit fees, operating fees, surcharges of any kind that apply to any and all persons, facilities, property, income, equipment, materials, supplies or activities related to . the Contractor's activities under City contract, business and occupation taxes, workers' compensation and unemployment benefits. 6.12 Relationship of Parties The City and Contractor intend that an independent City/Contractor relationship will be created by this Contract. The implementation of services will lie solely with the Contractor. No agent, employee, servant, or representative of the Contractor shall be deemed to be an employee, agent, servant, or representative of the City. 6.13 Bankruptcy It is agreed that if the Contractor is adjudged bankrupt, either voluntarily or involuntarily, then this Amendment, at the option of the City, may be terminated effective on the day and at the time the bankruptcy petition is filed. City of Auburn 8 January 2, 2008 West Hill Annexation Amendment 6.14 Right to Renegotiate/Amendment The City shall retain the right to reinitiate this Amendment or negotiate contract amendments based on policy changes, state statutory changes or rule changes in county, State or Federal regulations regarding issues that materially modify the terms and conditions of the Amendment; provided, however, the Contractor's operations in the West Hill Annexation Area shall at all times be governed by and comport with the WUTC's regulations. This Amendment may be amended, altered or modified only by a written amendment, alteration or modification, executed by authorized representatives of the City and the Contractor. 6.15 Force Majeure Provided that the requirements of this Section are met, Contractor shall not be deemed to be in default and shall not be liable for failure to perform under this Amendment if Contractor's performance is prevented or delayed by acts of God including landslides, lightning, forest fires, storms, floods, freezing and earthquakes, civil disturbances, acts of the public enemy, wars, blockades, public riots, breakage, explosions, accident to machinery, equipment or materials, unavailability of required materials or disposal sites, governmental restraint or other causes, whether of the kind enumerated or otherwise, which are not reasonably within the control of the Contractor ("Force Majeure"). If as a result of a Force Majeure event, Contractor is unable wholly or partially to meet its obligations under this Amendment, it shall give the City promptly written notice of the Force Majeure event, describing it in reasonable detail. The Contractor's obligations under this Amendment shall be suspended but only with respect to the particular component of obligations affected by the Force Majeure and only for the period during which the Force Majeure exists. 6.16 Costs and Attorney's Fees If a legal action is instituted by reason of any default or breach on the part of either party in the performance of any of the terms or conditions of this Amendment, the prevailing party shall be entitled to an award of its costs, expenses and attorney's fees in connection therewith. 6.17 Illegal Provisions At the discretion of the City, if any provision of this Amendment shall be declared illegal, void, or unenforceable, the other provisions shall not be affected, but shall remain in full force and effect. 6.18 Waiver No waiver of any right or obligation of either party hereto shall be effective unless in writing, specifying such waiver, executed by the party against whom such waiver is sought to be enforced. A waiver by either party of any of its rights under this Amendment on any occasion shall not be a bar to the exercise of the same right on any subsequent occasion or of any other right at any time. 6.19 Entirety This Amendment and the Principle Contract, incorporated herein by this reference to the extent not inconsistent with this Amendment, represent the entire agreement of the City and the Contractor with respect to the services to be provide under this Amendment. No prior written or oral statement or proposal shall alter any term or provision of this Amendment. City of Auburn 9 January 2, 2008 West Hill Annexation Amendment WITNESS THE EXECUTION HEREOF on the day and year first herein above written. W and nt of Washington, Inc. B CIT -__- By Mayor A B C City of Auburn 10 January 2, 2008 West Hill Annexation Amendment Attested: AMDZ'??--, City Clerk * d+ CITYU_ OF B-,- U_` " Peter B. Lewis, Mayor A:RN WASHINGTON 25 West Main Sheet * Auburn WA 98001-4998 * www.oubumwa.gov * 253-931-3000 RECEIVED MAY 15 2009 MAY 15 2009 CITY OFAUBURIV CITY OFA BURN r May 12, 2009 CLERKS OFFICE Mr. Terry Bickel South Sound District Manager Waste Management P.O. Box 1877 Auburn, WA 98001 RE: Notice of extension to City of Auburn Solid Waste Collection Contract Dear Mr. Bickel: In accordance with Section 1 of the Solid Waste Collection Contract between the City of Auburn and Waste Management, notice is hereby given of the City's exercise of a second two-year extension of the original contract. The first extension was effective January 1, 2009, and expires on December 31, 2010. This second extension is effective January 1, 2011 through December 31, 2012. This extension shall be under the original terms and conditions of the current contract. $eter er, ~ 1 . Lewis Mayor cc: Dan Heid, City Attorney Dani Daskam, City Clerk Shelley Coleman, Finance Director Joan Clark, Solid Waste & Recycling Coordinator AUBURN * MORE THAN YOU IMAGIN.