The municipal materials management agreement entered into by the Village and a waste hauling contractor is hereby included by reference as Appendix “A”.
APPENDIX “A”
MUNICIPAL MATERIALS MANAGEMENT AGREEMENT
This Municipal Materials Management Agreement (the "Agreement") is made and entered into this 1st day of October, 2023 (''Effective Date"), by and between the Village of Hamel ("Village"), and Allied Waste Transportation, Inc. dba Republic Services of Edwardsville a Delaware corporation, qualified to do and actually doing business in the State of Illinois ("Company").
RECITALS
WHEREAS, Village desires that Company provide Services as defined herein for the Location Types as set forth in this Agreement and Company desires to do so, all in accordance with the terms of this Agreement.
NOW, THEREFORE, in consideration of the promises and the mutual covenants contained in this Agreement, the parties agree as follows:
TERMS AND CONDITIONS
1. Sole and Exclusive Franchise. Company is hereby granted the sole and exclusive franchise, license, and privilege to provide for the collection and disposal or recycling of all conforming Waste Material (as defined in Exhibit A) for the following types of locations ("Location Types") within the territorial jurisdiction of the Village (the "Services"):
Location Types
X Residential Units ___ Large Commercial Units
Small Commercial Units ___ Industrial Permanent Units
X Municipal Facilities ___ Industrial Temporary Units
2. Newly Developed Areas. If the Village develops new areas (of the same Location Types as designated above) within the Village's territorial jurisdiction during the Term of this Agreement, such areas shall automatically be subject to this Agreement. The Village shall provide Company with written notification of such newly developed areas, and within thirty (30) days after receipt of such notification, Company shall provide the Services as set forth in this Agreement in such newly developed area(s).
3. Scope of Services. Company shall furnish all equipment, trucks, personnel, labor, and all other items necessary to perform the Services. The Services shall not include the collection, disposal, or recycling of any Excluded Waste or Waste Material located at any Location Type not designated above, or any Waste Material/Service Types not designated in any exhibit attached hereto.
4. Out of Scope Services May Be Contracted for Directly with Customers. Company may provide collection and disposal or recycling service within the territorial jurisdiction of the Village for any Waste Material and/or Location Types that are outside the scope of this Agreement pursuant such terms and conditions as may be mutually agreed upon by Company and such Customers. Such services and agreements are outside the scope of this Agreement, and this Agreement does not require such Customers to use Company for such services, but they may do so at their discretion. The Village agrees that Company may use any information received from the Village in marketing all of its available services to the Customers located within the Village, whether included in the scope of this Agreement or not.
5. Exhibits. All Exhibits attached this Agreement are an integral part of the Agreement and are incorporated herein.
Exhibit A Specifications for Municipal Solid Waste Services
Exhibit A-1 Municipal Solid Waste Pricing
Exhibit B Specifications & Pricing for Recycling Services
6. Term. This Agreement begins on the Effective Date and expires three (3) years (the "Term") thereafter. This Agreement can be renewed for successive three (3) year periods subject to mutual agreement between the parties.
7. Rates for Services; Rate Adjustments; Additional Fees and Costs.
7.1 Rates for Services. The rates for all Services shall be as shown on Exhibit A-1, subject to the rate adjustments and additional fees and costs as set forth herein.
7.2 Annual Rate Adjustments. Company shall increase the rates for all Services effective on each anniversary of the Effective Date of this Agreement in an amount equal to the greater of (a) five (5) percent or (ii) the percentage increase in the Consumer Price Index for All Urban Consumers (Water, Sewer and Trash Collection Services) U.S. Village Average, as published by United States Department of Labor, Bureau of Statistics (the ''CPI"). For the CPI calculation, rates will be adjusted using the most recently available trailing twelve (12) months average CPI compared to the twelve (12) months preceding.
7.3 Change in Law Adjustments. Company may increase the rates for Services as a result of increases in costs incurred by Company due to (a) any third party or municipal hauling company or disposal or recycling facility being used; (b) changes in local, state, federal or international rules, ordinances or regulations; (c) changes in taxes, fees or other governmental charges (other than income or real property taxes); (d) uncontrollable prolonged operational changes (i.e., a major bridge closure); (e) increased fuel costs; and (f) changes in costs due to a Force Majeure Event. Any of the foregoing cost adjustments shall be retroactive to the effective date of such increase or change in cost.
8. Invoicing; Payment; Service Suspension; Audits.
8.1 Invoicing the Village. The Village shall invoice and collect from all Residential Units and Municipal Facilities Customers for Services provided by Company pursuant to this Agreement. The Village shall report to Company (a) by the 5th of each month the total number of addresses subject to this Agreement and that have been billed for Services by the Village and (b) on a quarterly basis a list of addresses billed for the Services by the Village. Company shall invoice the Village for the number of addresses that were billed by the Village within fifteen (15) days of receiving the Village's address count each month, and the Village shall pay Company's invoices.
8.2 Payment. The Village shall pay each of Company's invoices without offset within twenty (20) days of receipt Company’s invoice. Payments may be made by check or ACH only; no purchasing cards or credit cards will be accepted. If Company is invoicing the Village, Village shall pay Company's invoices in full irrespective of whether or not the Village collects from the Customers for such Service. Payments not made on or before their due date may be subject to late fees of one and one-half percent (1.5%) per month (or the maximum allowed by law, if less). If the Village withholds payment of a portion or entire invoice and it is later determined that a portion or all of such withheld amount is owed to Company, such amount shall be subject to the late fees provided herein from the original due date until paid.
8.3 Service Suspension.
8.3.1 Unpaid Invoices. If any amount due from the Village is not paid within sixty (60) days after the date of Company's invoice, Company may suspend Services until the Village has paid its outstanding balance in full and/or terminate this Agreement. If Company suspends Service, the Village shall pay a service interruption fee in an amount determined by Company in its discretion up to the maximum amount allowed by Applicable Law.
8.3.2 Suspension at Direction of Village. If the Village wishes to suspend or discontinue Services to a Customer for any reason, the Village shall send Company a written notice (email is acceptable as long as its receipt is acknowledged by Company) identifying the Customer's address and the date the Services should be suspended or discontinued. In the event of Service suspension, the Village shall provide additional email notification to Company if/when it wishes to reactivate the suspended Services. Upon receipt of a notice of reactivation, Company shall resume the Services on the next regularly scheduled collection day. The Village shall indemnify, defend, and hold Company harmless from any claims, suits, damages, liabilities pr expenses (including but not limited to expenses of investigation and attorneys' fees) resulting from the suspension of discontinuation of any Services at the direction of the Village.
8.4 Audits.
8.4.1 Audit of Village Billings. With respect to any Services in which the Company's billing is dependent upon the Village's reporting of the number of addresses subject to this Agreement, the Village shall perform an audit at least once each year to confirm that all addresses receiving Services under this Agreement are actually being billed by the Village and that the Village's reporting on such addresses is accurate. The Village shall share all findings and documentation with respect to such audits with Company. In addition to the foregoing, Company shall be permitted to conduct its own address counts using manual counts and/or official parcel maps. lf at any tirne Company presents to Village data to support that the number of addresses serviced exceeds the number provided by the Village, the parties agree to re-negotiate in good faith the number of addresses receiving and paying for services under this Agreement.
8.4.2 Audit of Company Records. The Village may request and be provided with an opportunity to audit any relevant and non-confidential records of Company that support the calculations of charges invoiced to the Village under this Agreement within the ninety (90) day period before the audit request. Such audits shall be paid for by the Village and shall be conducted under mutually acceptable terms at Company's premises in a manner that minimizes any interruption in the daily activities at such premises.
9. Termination. If either party breaches any material provision of this Agreement and such breach is not substantially cured within thirty (30) days after receipt of written notice from the non-breaching party specifying such breach in reasonable detail, the non-breaching party may terminate this Agreement by giving thirty (30) days' written notice of termination to the breaching party. Upon termination, the Village shall pay Company only such charges and fees for the Services performed on or before the termination effective date and Company shall collect its equipment, and Company shall have no further obligation to perform any Services under this Agreement.
10. Compliance with Laws. Company warrants that the Services will be performed in a good, safe and workmanlike manner, and in compliance with all applicable federal, state, provincial and local laws, rules, regulations, and permit conditions relating to the Services, including without limitation any applicable requirements relating to protection of human health, safety, or the environment ("Applicable Law"). In the event any provision of this Agreement conflicts with an existing ordinance of the Village, the City and Company agree to meet to negotiate in good faith any necessary changes to the contract or pricing. Company reserves the right to decline to perform Services, which, in its judgment, it cannot perform in a lawful manner or without risk of harm to hum all health; safety or the environment.
11. Title. Title to Waste Material shall pass to Company when loaded into Company's collection vehicle or otherwise received by Company. Title to and liability for any Excluded Waste shall at no time pass to Company.
12. Excluded Waste. If Excluded Waste is discovered before it is collected by Company, Company may refuse to collect the entire waste container that contains the Excluded Waste. In such situations, Company shall contact the Village and the Village shall promptly undertake appropriate action to ensure that such Excluded Waste is removed and properly disposed of by the depositor or generator of the Excluded Waste. In the event Excluded Waste is present but not discovered until after it has been collected by Company, Company may, in its sole discretion, remove, transport, and dispose of such Excluded Waste at a facility authorized to accept such Excluded Waste in accordance with Applicable Law and, in Company's sole discretion, charge the Village, depositor or generator of such Excluded Waste for all direct and indirect costs incurred due to the removal, remediation, handling, transportation, delivery, and disposal of such Excluded Waste. The Village shall provide all reasonable assistance to Company to conduct an investigation to determine the identity of the depositor or generator of the Excluded Waste and to collect the costs incurred by Company in connection with such Excluded Waste. Subject to the Village's providing all such reasonable assistance to Company, Company shall release Village from any liability for any such costs incurred by Company in connection with such Excluded Waste, except to the extent that such Excluded Waste is determined to be attributed to the Village.
13. Equipment; Access. Any equipment that Company furnishes or uses to perform the Services under this Agreement shall remain Company's property. The Village shall be liable for all loss or damage to such equipment, except for normal wear and tear, or loss or damage resulting from Company's handling of the equipment. Each replacement cart will be billed at a base rate of $60.00, subject to inflationary increases through the term of this contract, except for replacement situations as outlined above. Village and Customers shall use the equipment only for its proper and intended purpose and shall not overload (by weight or volume), move, or alter the equipment. If the equipment and/or Waste Material is not accessible so that the regularly scheduled pick-up cannot be made, such Waste Material will not be collected until the next regularly scheduled pick-up, unless the Customer calls Company and requests an extra pick-up, in which case an extra service charge of $25.00 per incident will apply.
14. Risk Allocation. Except as otherwise specifically set forth herein, each party shall be responsible for any and all claims for personal injuries or death, or the loss of or damage to property, only to the equipment caused by that party's negligence or acts of willful misconduct or those of its employees, contractors, subcontractors, or agents.
15. Insurance. During the Term of this Agreement, Company shall maintain in force, at its expense, insurance coverage with minimum limits as follows:
Workers' Compensation
Coverage A Statutory
Coverage B - Employers Liability $1,000,000 each Bodily Injury by Accident
$1,000,000 policy limit Bodily Injury by Disease
$1,000,000 each occurrence Bodily Injury by Disease
Automobile Liability
Bodily Injury/Property Damage $3,000,000
Combined - Single Limit Coverage is to apply to all owned, non-owned, hired and leased vehicles (including trailers).
Pollution Liability Endorsement MCS-90 endorsement for pollution liability coverage
Commercial General Liability
Bodily Injury/Property Damage $2,500,000 each occurrence
Combined - Single Limit $5,000,000 general aggregate
All such insurance policies will be primary without the right of contribution from any other insurance coverage maintained by Village. All policies required herein shall be written by insurance carriers with a rating of A.M. Bests of at least ''A-" and a financial size category of at least VII. Upon Village's request, Company shall furnish Village with a certificate of insurance evidencing that such coverage is in effect. Such certificate will also provide for thirty (30) days prior written notice of cancellation to the Village, show the Village as an additional insured under the Automobile and General Liability policies, and contain waivers of subrogation in favor of the Village (excluding Worker's Compensation policy) except with respect to the sole negligence or willful misconduct of Village.
16. Force Majeure. Except for Village's obligation to pay amounts due to Company, any failure or delay in performance under this Agreement due to contingencies beyond a party's reasonable control, including, but not limited to, strikes, riots, terrorist acts, compliance with Applicable Laws or governmental orders, fires, bad weather, pandemics, epidemics and acts of God, shall not constitute a breach of this Agreement, but shall entitle the affected Company fo be relieved of performance at the current pricing levels under this Agreement during the term of such event and for a reasonable time thereafter. The collection or disposal of any increased volume resulting from a flood, hurricane or similar or different Act of God over which Company has no control, shall not be included as part of Company's service under this Agreement. ln the event of increased volume due to a Force Majeure event, Company and the Village shall negotiate the additional payment to be made to Company. Further, the Village shall grant Company variances in routes and schedules as deemed necessary by Company to accommodate collection of the increased volume of Waste Materials.
17. Non-Discrimination. Company shall not discriminate against any person because of race, sex, age, creed, color, religion or national origin in its performance of Services under this Agreement.
18. Licenses and Taxes. Company shall obtain all licenses and permits (other than the license and permit granted by this Agreement) and promptly pay all taxes required by the Village and by the State.
19. No Guarantees or Liquidated Damages. Unless specifically provided herein, Company provides no guarantees or warrants with respect to the Services. No liquidated damages or penalties may be assessed against Company by Village.
20. Miscellaneous. (a) This Agreement represents the entire agreement between the Parties and supersedes all prior agreements, whether written or verbal, that may exist for the same Services. (b) Company shall have no confidentiality obligation with respect to any Waste Materials. (c) Neither party shall assign this Agreement in its entirety without the other party's prior written consent, which consent shall not be unreasonably withheld. Notwithstanding the foregoing, Company may assign this Agreement without the Village's consent to its parent company or any of its subsidiaries, to any person or entity that purchases any operations from Company or as a collateral assignment to any lender to Company. This Agreement shall be binding upon and inure solely to the benefit of the Parties and their permitted successors and assigns. (d) Company may provide any of the Services covered by this Agreement through any of its affiliates or subcontractors, provided that Company shall remain responsible for the performance of all such services and obligations in accordance with this Agreement. (e) No intellectual property rights in any of Company's IP are granted to Village under this Agreement. (f) All provisions of the Agreement shall be strictly complied with and conformed to by the Parties, and this Agreement shall not be modified or amended except by written agreement duly executed by the undersigned parties. (g) If any provision of this Agreement is declared invalid or unenforceable, it shall be modified so as to be valid and enforceable but so as most nearly to retain the intent of the Parties. If such modification is not possible, such provision shall be severed from this Agreement. In either case, the validity and enforceability of the remaining provisions of this Agreement shall not in any way be affected thereby. (h) Failure or delay by either party to enforce any provision of this Agreement will not be deemed a waiver of future enforcement of that or any other provision. (i) If any litigation is commenced under this Agreement, the successful party shall be entitled to recover, in addition to such other relief as the court may award, its reasonable attorneys' fees, expert witness fees, litigation related expenses, and court or other costs incurred in such litigation or proceeding. (j) This Agreement shall be interpreted and governed by the laws of the State where the Services are performed. (k) Customer and Company agree that electronic signatures are valid and effective, and that an electronically stored copy of this Agreement constitutes proof of the signature and contents of this Agreement, as though it were an original.
IN WITNESS HEREOF, the parties have entered into this Agreement as of the date first written above.
Village of Hamel Allied Waste Transportation, Inc.
dba Republic Services of Edwardsville
By: Justin Gerstner /s/ By: Cord Stanley /s/
Name: Justin Gerstner Name: Cord Stanley
Title: Village President Title: General Manager
Date: 10/5/2023 Date: 10/4/2023
(Ord. 23-019; passed 10-10-23)