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HomeMy WebLinkAbout146-19 RESOLUTIONN ii 113 West Mountain Street Fayetteville, AR 72701 (479) 575-8323 Resolution: 146-19 File Number:2019-0336 FOOD RECYCLING SOLUTIONS, LLC: A RESOLUTION TO APPROVE AN AGREEMENT WITH FOOD RECYCLING SOLUTIONS, LLC FOR THE HAULING OF ORGANIC COMPOSTABLES IN THE CITY OF FAYETTEVILLE BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF FAYETTEVILLE, ARKANSAS: Section 1: That the City Council of the City of Fayetteville, Arkansas hereby approves an agreement with Food Recycling Solutions, LLC, a copy of which is attached to this Resolution, for the hauling of organic compostables in the City of Fayetteville for a term of one year with automatic renewals for up to two additional one year terms. PASSED and APPROVED on 7/2/2019 Page 1 Attest: —'�L=hj oil Sondra E. Smith, City Clerk Tre � r� K / j: FAVET-rEVI<<E��'_ Pri"4 rTjl�p(�;60; %%% /1/1111110 r City of Fayetteville, Arkansas 113 West Mountain Street Fayetteville, AR 72701 (479) 575-8323 Text File File Number: 2019-0336 Agenda Date: 7/2/2019 Version: 1 Status: Passed In Control: City Council Meeting File Type: Resolution Agenda Number: B. 1 FOOD RECYCLING SOLUTIONS, LLC: A RESOLUTION TO APPROVE AN AGREEMENT WITH FOOD RECYCLING SOLUTIONS, LLC FOR THE HAULING OF ORGANIC COMPOSTABLES IN THE CITY OF FAYETTEVILLE BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF FAYETTEVILLE, ARKANSAS: Section 1: That the City Council of the City of Fayetteville, Arkansas hereby approves an agreement with Food Recycling Solutions, LLC, a copy of which is attached to this Resolution, for the hauling of organic compostables in the City of Fayetteville for a term of one year with automatic renewals for up to two additional one year terms. City of Fayetteville, Arkansas Page 1 Printed on 7/3/2019 Brian Pugh Submitted By City of Fayetteville Staff Review Form 2019-0336 Legistar File ID 6/18/2019 City Council Meeting Date - Agenda Item Only N/A for Non -Agenda Item 5/24/2019 RECYCLING/TRASH COLLECTION (750) Submitted Date Division / Department Action Recommendation: A resolution to approve an agreement with Food Recycling Solutions, LLC for the hauling of organic compostables and recyclable material in the City of Fayetteville. Budget Impact: Account Number Fund Project Number Project Title Budgeted Item? NA Current Budget $ - Funds Obligated $ - Current Balance f $- Does item have a cost? No Item Cost Budget Adjustment Attached? NA Budget Adjustment Remaining Budget $ - V20180321 Purchase Order Number: Previous Ordinance or Resolution # Change Order Number: Approval Date: Original Contract Number: Comments: CITY OF FAYETTEVILLE ARKANSAS MEETING OF JUNE 18T", 2019 TO: Mayor Jordan and City Council CITY COUNCIL MEMO THRU: Peter Nierengarten, Sustainability and Resilience Director Jeff Coles, Recycling and Trash Collections Director FROM: Brian Pugh, Waste Reduction Coordinator DATE: May 23, 2019 SUBJECT: A Resolution to approve an agreement with Food Recycling Solutions, LLC for the hauling of organic compostables and recyclable material in the City of Fayetteville RECOMMENDATION: Staff recommends approving a resolution with Food Recycling Solutions, LLC for the hauling of organic compostables and recyclable material in the City of Fayetteville. BACKGROUND: Food Recycling Solutions has submitted a request to haul compostable and recyclable materials in the City of Fayetteville. The contract will permit Food Recycling Solutions, LLC to collect and transport compostable materials to permitted Foodwaste composting operations. Food Recycling Solutions agrees and understands that it shall be required to provide certification of the weight collected for hauling all organic waste collected in the City of Fayetteville. Documentation should be completed using either scale tickets from a permitted facility and the reported weight will be counted toward the City's waste diversion goals. DISCUSSION: The term of the agreement will be one year with automatic renewals for two (2) additional one (1) year term, unless otherwise terminated pursuant to the terms of the contract. BUDGET/STAFF IMPACT: None Attachments: Food Recycling Solutions, LLC Agreement to haul and dispose of Organic Compostables. Mailing Address: 113 W. Mountain Street www.fayetteville-ar.gov Fayetteville, AR 72701 AGREEMENT TO HAUL AND DISPOSE OF ORGANIC COMPOSTABLES AND RECYCLABLE MATERIALS IN THE CITY OF FAYETTEVILLE This Agreement (the "Agreement"), is entered into on this _a day of LkI 2019, between the City of Fayetteville, Arkansas, a municipal corporation (the "City"), and Food Vecycling Solutions, LLC (the "Hauler"), and shall be in full force and effect on the date first written above, City and Hauler agree as follows: The term of this Agreement shall be for one (1) year with automatic renewals for two (2) additional one (1) year terms, unless otherwise terminated pursuant to the terms hereof. Notice of non- renewal by either City or Hauler shall be given at least thirty days prior to the end of the current term. Hauler agrees that from and after the original date of this Agreement, all customer service Agreements for facilities within the corporate limits of the City, excluding residential areas, entered into before or after the effective date of this Agreement, or renewed shall have terms of no more than one (1) year from the date of execution of this Agreement. No customer service agreement shall extend the tef'ms of this Agreement. 3. Hauler agrees and understands that it may only collect and haul organic waste for composting and recyclable materials. Hauler may collect organic waste and recyclable materials from residential, commercial and industrial activities. Hauler is not authorized to collect or haul any other type of solid waste. 4. In consideration of the right to provide the hauling of solid waste, recyclables and/or organic waste described in Item #3 above, Hauler agrees and understands that it shall be required to pay a monthly fee of five (5%) percent (the "Organic Waste Fee") of the gross revenue received for providing the hauling of compostable organic waste. 5. As additional consideration for the right to provide the hauling of organic waste as described in Item #3 above, Hauler agrees and understands that it shall be required to haul all organic waste collected in the City of Fayetteville to the Fayetteville Recycling and Trash Collection Facility for composting, which shall be counted toward City's waste diversion goals. 6. If Hauler collects compostable organic waste materials, Hauler shall pay all fees due hereunder, along with submitting "Attachment A: Organic Waste Documentation", on or before the 15`h of each calendar month for the immediately preceding calendar month. Payments of fees received after the due date shall be assessed a 10% penalty per month. If Hauler fails to pay the fees within forty-five (45) days of the due date, the City may tenninate this Agreement upon delivery of one (1) written notice to the 1-lauler. The supporting information shall be sufficient to demonstrate the accuracy of the fee calculation, and shall include the following information: (i) volumes of recycling collected, in tons, by commodity, with disposition by destination market, for all source separated recycling; (ii) for any approved non -source separated program, the I lauler shall submit to the City by June 30'x' on annual basis, copies of contracts with processing Mills, (iii) for any approved non -source separated program, the amounts, in tons, of recycling collected within Page ( of G Fayetteville, with disposition by destination market. With payment remittance, the City may review and obtain certain trade secret information, including rates, frequency of service, customer lists, other customer information, and contracts with recyclers and processing mills ("Confidential Information"). The City asserts this information is exempt from disclosure under the Arkansas Freedom of Information Act as the information meets the exemption for records that "if disclosed would give advantage to competitors." This information will only be reviewed by City financial staff and will not be made available to City Recycling & Trash Collection staff. 7. If Hauler collects recyclable materials, Hauler shall pay all fees due hereunder, along with submitting "Attachment B: Recycling Documentation", on or before the 15`h of each calendar month for the immediately preceding calendar month. Payments of fees received after the due date shall be assessed a 10% penalty per month. If Hauler fails to pay the fees within forty-five (45) days of the due date, the City may terminate this Agreement upon delivery of one (1) written notice to the Hauler. The supporting information shall be sufficient to demonstrate the accuracy of the fee calculation, and shall include the following information: (i) volumes of recycling collected, in tons, by commodity, with disposition by destination market, for all source separated recycling; (ii) for any approved non -source separated program, the Hauler shall submit to the City by June 301h on annual basis, copies of contracts with processing mills; (iii) for any approved non - source separated program, the amounts, in tons, of recycling collected within Fayetteville, with disposition by destination market. With payment remittance, the City will review and obtain certain trade secret information, including rates, frequency of service, customer lists, other customer information, and contracts with recyclers and processing mills ("Confidential Information"). The City asserts this information is exempt from disclosure under the Arkansas Freedom of Information Act as the information meets the exemption for records that "if disclosed would give advantage to competitors." This information will only be reviewed by City financial staff and will not be made available to City Recycling & Trash Collection staff. Any Hauler found providing services for non -source separated recyclables without prior approval by the City shall be subject to a fee of $500.00. 8. The City shall have the right to conduct an audit of Hauler's customer files and records for all customers located within the City, provided that such audit privilege shall be limited to once per calendar quarter. During such audit, the City may review and obtain certain trade secret information, including rates, frequency of service, customer lists, and other customer information ("Confidential Information"). This information shall not be divulged to any third party by the City, its employees, officers, or elected officials without the express written consent of the Hauler, or as otherwise required by law. The City asserts this information is exempt from disclosure under the Arkansas Freedom of Information Act as the information meets the exemption for records that "if disclosed would give advantage to competitors." This information will only be reviewed by City financial staff, and will not be made available to City Recycling & Trash Collection staff. 9. The City will advise Hauler of any request for information which the City, at the City's sole discretion, determines to be non -disclosable or otherwise subject to an exemption from disclosure under the Arkansas Freedom of Information Act. If a court of competent jurisdiction determines that said requested information is disclosable or otherwise is not exempt from disclosure under the Arkansas Freedom of Information Act, the City will comply with said finding and notify Hauler. Discovery requests made to the City during the course of any litigation, or any other subpoena or court order issued to the City for information or records related to Hauler and this Agreement, shall be promptly made known to Hauler. Page 2 of 6 10. Hauler agrees and understands that it shall submit to the City by June 30th on an annual basis: (i) a list of all commercial vehicles used to provide services in the City; (ii) proof of appropriate vehicle registration; (iii) and proof of the insurance required by this Agreement. 11. Hauler agrees and understands that it shall provide by June 30th on an annual basis: (i) a list of vehicle operators collecting and hauling waste in the City of Fayetteville; (ii) proof of their valid and appropriate commercial drivers' licenses; (iii) and the provision, maintenance, and implementation of a plan to ensure that the vehicle operators maintain their commercial driver's licenses in accordance with applicable federal and state laws. 12. Hauler agrees that it shall provide by June 301h on an annual basis copies of valid and current hauling and disposal permits from the Arkansas Department of Environmental Quality, the Solid Waste District with jurisdiction, and any local permitting agency. 13. Hauler agrees that it shall comply with all federal, state and local laws applicable to the safety, environmental and transportation matters related to providing solid waste collection services under this Agreement. Hauler agrees that all open -top roll -off style containers will be properly covered during transit on streets and highways within Fayetteville. 14, The City reserves the right to inspect all vehicles and containers to ensure that the vehicles are safe and well-maintained and that all containers are well-maintained and water tight, if necessary. 15. If Hauler utilizes the City's transfer station, Hauler agrees and understands that it shall be required to establish an individual credit or service relationship with the City of Fayetteville transfer station operator. Hauler agrees that it shall comply with all practices, policies and procedures as established by the transfer station operator from time to time. Any tipping fee deposits required by the transfer station or landfill operators shall be refunded, less any unpaid tipping fees, when the Hauler ceases hauling activities governed by this Agreement. 16. This Agreement has been entered into freely and voluntarily by Hauler which agrees to abide by all of the terms and conditions as a matter of contractual obligation pursuant to applicable City ordinances. This is a contractual Agreement and is not intended to be part of or relate in any way to any license or ordinance created pursuant to A.C.A. §26-77-102. 17. Neither this Agreement, nor any rights or obligations hereunder may be assigned or transferred to any third part or affiliate. 18. For the purpose of this contract, the Point of Contact for the City of Fayetteville shall be the City's Director of Sustainability. The Point of Contact for the Hauler shall be Richard Ims. Communications pertaining to day-to-day aspects of this contract shall be through these individuals. Either party may change its designated Point of Contact upon ten (10) days prior written notice to the other party. 19. Hauler agrees to protect, indemnify, defend and save harmless the City, its officials, officers, employees, agents, subcontractors, representatives and assigns from any loss, claim, liability, penalty, fine, forfeiture, demand cause of action, suit and costs and expenses incidental thereto (including costs of defense, settlement and reasonable attorneys' fees), to the extent caused by (i) Hauler's breach of any term, condition, covenant or warranty contained in this Agreement, or (ii) Page 3 of 6 Hauler's negligent act or omission or willful misconduct related to the delivery of waste to the City transfer station or a properly licensed landfill facility. 20. Insurance: Hauler shall maintain the following insurance coverage during the term of this Agreement: a) Hauler shall provide and maintain, during the term of this Agreement, comprehensive general liability insurance, to protect against all claims arising out of the performance of its services hereunder that result in bodily injury, death or property damage. The policy or policies shall contain a clause that the insurer will not cancel or decrease the insurance coverage without first giving the City sixty (60) days notice in writing. b) Upon written request, Hauler shall furnish the City with evidence that the insurance required of it is in force. C) City will be added as an additional insured on General Liability and Auto Liability policies. d) The types of coverage and limits of liability of all insurance required herein shall be a follows: COVERAGE LIMITS OF LIABILITY Worker's Compensation Statutory Employer's Liability $500,000 Bodily Injury Liability except Automobile $1,000,000 each occurrence Property Damage Liability Except Automobile $1,000,000 each aggregate Automobile Bodily Injury $1 000,000 each person Comprehensive General Liability $1,000,000 each occurrence Automobile Property Damage Liability $1,000,000 each occurrence Excess Umbrella Liability $1,000,000 each occurrence 21. Tennination: a) Except as otherwise provided herein, if Hauler breaches this Agreement or defaults in the performance of any of the requirement or conditions contained herein, and such breach continues for fifteen (15) days after the City has given the Hauler written notice of such breach or default, the City may: (i) terminate this Agreement no sooner than thirty (30) days after the date of written notice of such breach or default; (ii) cure the breach or default at the expense of the Hauler; and/or (iii) exercise any right or remedy to which it may be entitled by law. b) The City may terminate this Agreement upon written notice to the Hauler if the Hauler makes an assignment for the benefit of creditors, or files a voluntary petition in bankruptcy, receivership or insolvency, or files an answer in any involuntary proceeding of that nature admitting the material allegations of the petition, or if a Page 4 of 6 proceeding in bankruptcy, receivership or insolvency shall be instituted and such proceeding is not dismissed within sixty (60) days. C) In the event that this Agreement is terminated for any reason, any amounts payable to the City by Hauler for services rendered for any reason whatsoever shall become immediately due and payable as of the date of such termination. 22. All notices required or permitted under this contract shall be submitted in writing to the other party of this contract by electronic mail, return receipt requested, and by U.S. Mail, which notice shall be effective three (3) days after deposit therein addressed to the following: City of Fayetteville Sustainability Director 113 West Mountain Street Fayetteville, AR 72701 Food Recycling Solutions, LLC Attn: Richard Ims 13935 Pyramid Drive Rogers, AR 72758 23. Hauler agrees and understands that this Agreement and documents submitted to the City pursuant hereto are subject to the Arkansas Freedom of Information Act. If a Freedom of Information Act request is presented to the City of Fayetteville requesting such non-exempt documents, such non- exempt documents shall be provided in a prompt and timely manner as prescribed in the Arkansas Freedom of Information Act (Ark. Code Ann. § 25-19-101 et seq.). Only legally authorized photocopying costs may be assessed for this compliance. 24. This Agreement shall be interpreted according to and enforced under the laws of the State of Arkansas. Capitalized terms herein shall have the same meaning as set forth in ADEQ Reg. No. 22. 25. A waiver by either party of any of the terms or conditions herein shall be limited to that particular instance, and shall not be construed as a general waiver of either party's right to seek appropriate remedies for any other breaches by either party. 26. Each paragraph of the Agreement is severable from all other paragraphs. In the event any court of competent jurisdiction determines that any paragraph or subparagraph is invalid or unenforceable for any reason, all remaining paragraphs and subparagraphs shall remain in full force and effect. 27. This contract constitutes the entire understanding of the parties and no Notification or variation of the terms of this contract shall be valid unless made in writing and signed by the duly authorized agents of the City of Fayetteville and the Hauler. 28. Each of the undersigned warrants that he or she has the full right, power, and authority to execute this contract on behalf of the party indicated for the purposes herein contained. 29. To the extent a definition or a specific term is not provided herein but is nonetheless required by the context, it is the intention of the parties to incorporate herein the definitions contained in applicable law and regulation in effect as the date hereof, except to the extent subsequent law or regulation shall expressly or implicitly mandate a revised definition. Page 5 of 6 30. The obligations of the parties to this Agreement, which by their nature would continue beyond the termination, cancellation or expiration of this Agreement, shall survive the termination (for any reason), cancellation or expiration of this Agreement. IN WITNESS WHEREOF, we have hereunto set our hands on the date first written above. CITY OF FAYETTEVILLE FOOD RECYCLING SOLUTIONS, LLC By: ONELD,J",7Mayor ATTEST: By: SONDRA SMITH, City Clerk By: Richard Inis Managing` Member WITNESS: LO -A Page 6 of 6 •�••••••=u==�,=, �u=��..=a�,.,►1 ul cnpnauun of ims agreement, shall survive the termination (for any reason), cancellation or expiration of this Agreement. IN WITNESS WHEREOF, we have hereunto set our hands on the date first written above. CITY OF FA ,NETTEVILLE FOOD RECYCLING SOLUTIONS, LLC By.—, By: LD JO A , Mayor Richard Im aging Member ATTEST: WITNESS: 6 . ZBy : _ SONDRA SMITH, City Clerk ����������►��►�� --- .`��'�.•' CITY ••�F9'. O s amu':�,Q /<<F•�� �'.y�'•�gNSAS •� �,'110 i�io�o���` Attachment A: Organic Waste Documentation Required Supporting Information For Monthly Payment of Fees Due on or before the 15th of each calendar month for the immediately preceding calendar month. Payments of the fees received after the due date shall be assessed a 10% penalty per month. Hauler: Month: 1. Please give the number of permanent customer accounts you have within the corporate limits of the City of Fayetteville for the month reported. 2. Please give the number of temporary customer accounts you have within the corporate limits of the City of Fayetteville for the month reported. 3. Please give the total number of containers placed with all your customer accounts within the corporate limits of the City of Fayetteville for the month reported. 4. For each account identified above, please complete the attached form showing your unique account identifier which is blind to the City, the account type, the total number of containers with that account, the total number of pulls with that account, and the monthly revenues collected by container for that account. (A form is required for each customer account identified in item #1 and item #2. The container total from all the forms should equal the container total specified in item #3.) 5. The forms completed for item #4 above should include all normal billing charges for free, donated, or discounted services. These normal billing charges should include but not be limited to delivery, pull charges, disposal charges, transportation charges, final pull charges, and return charges. Only donated or discounted services to non-profit organizations may be excluded. 6. Total fee remitted to the City of Fayetteville for the month reported. (This should equal the total of all the account fees calculated on the attached forms.) I swear or affirm that all of the information provided above and on all attached forms is true, correct, and complete to the best of my knowledge and belief. Printed Name Signature Title Phone # Date Customer Account Identifier (use your unique identifier that is blind to the City) Customer Account Type (permanent or temporary) Total containers with account Total number of pulls with account Container # Monthly Revenues 1 2 3 4 5 6 7 8 9 10 Total: Donated or Discounted Normal Container # Billing Charge_ 1 2 3 4 5 Total: Grand Total: 10% of Grand Total: Fee to be remitted to City for this account Attachment B: Recycling Documentation Required Supporting Information For Monthly Payment of Fees Due on or before the 15th of each calendar month for the immediately preceding calendar month. Payments of the fees received after the due date shall be assessed a 10% penalty per month. Hauler: Month: 1. Please give the number of permanent customer accounts you have within the corporate limits of the City of Fayetteville for the month reported. 2. Please give the number of temporary customer accounts you have within the corporate limits of the City of Fayetteville for the month reported. 3. Please give the total number of containers placed with all your customer accounts within the corporate limits of the City of Fayetteville for the month reported. 4. For each account identified above, please complete the attached form showing your unique account identifier which is blind to the City, the account type, the total number of containers with that account, the total number of pulls with that account, and the monthly revenues collected by container for that account. (A form is required for each customer account identified in item #1 and item #2. The container total from all the forms should equal the container total specified in item #3.) 5. The forms completed for item #4 above should include all normal billing charges for free, donated, or discounted services. These normal billing charges should include but not be limited to delivery, pull charges, disposal charges, transportation charges, final pull charges, and return charges. Only donated or discounted services to non-profit organizations may be excluded. 6. Total fee remitted to the City of Fayetteville for the month reported. (This should equal the total of all the account fees calculated on the attached forms.) I swear or affirm that all of the information provided above and on all attached forms is true, correct, and complete to the best of my knowledge and belief. Printed Name Signature Title Phone # Date Customer Account Identifier (use your unique identifier that is blind to the City) Customer Account Type (permanent or temporary) Total containers with account Total number of pulls with account Container # Monthly Revenues 1 2 3 4 5 6 7 8 9 10 Total: Donated or Discounted Normal Container # Billing Charge_ 1 2 3 4 5 Total: Grand Total: 5% of Grand Total: Fee to be remitted to City for this account AGREEMENT TO HAUL AND DISPOSE OF ORGANIC COMPOSTABLES IN THE CITY OF FAYETTEVILLE This Agreement (the "Agreement"), is entered into on this day of 2019, between the City of Fayetteville, Arkansas, a municipal corporation (the "City"), and Food Recycling Solutions, LLC (the "Hauler"), and shall be in full force and effect on the date first written above, City and Hauler agree as follows: 1. The term of this Agreement shall be for one (1) year with automatic renewals for two (2) additional one (1) year terms, unless otherwise terminated pursuant to the terms hereof. Notice of non- renewal by either City or Hauler shall be given at least thirty days prior to the end of the current term. 2. Hauler agrees that from and after the original date of this Agreement, all customer service Agreements for facilities within the corporate limits of the City, excluding residential areas, entered into before or after the effective date of this Agreement, or renewed shall have terms of no more than one (1) year from the date of execution of this Agreement. No customer service agreement shall extend the terms of this Agreement. 3. Hauler agrees and understands that it may only collect and haul organic waste for composting. Hauler may collect organic waste from commercial and industrial activities. Hauler is not authorized to collect or haul any other type of recycling or solid waste. 4. In consideration of the right to provide the hauling of organic waste described in Item #3 above, Hauler agrees and understands that it shall be required to pay a monthly fee of five (5%) percent (the "Organic Waste Fee") of the gross revenue received for providing the hauling of compostable organic waste. 5. As additional consideration for the right to provide the hauling of compostable organic waste as described in Item #3 above, Hauler agrees and understands that it shall be required to haul all organic waste collected in the City of Fayetteville to the Fayetteville Recycling and Trash Collection Facility for composting, which shall be counted toward City's waste diversion goals. 6. Hauler shall pay all fees due hereunder for compostable organic waste materials hauled, along with submitting "Attachment A: Organic Waste Documentation", on or before the 15th of each calendar month for the immediately preceding calendar month. Payments of fees received after the due date shall be assessed a 10% penalty per month. If Hauler fails to pay the fees within forty-five (45) days of the due date, the City may terminate this Agreement upon delivery of one (1) written notice to the Hauler. The supporting information shall be sufficient to demonstrate the accuracy of the fee calculation, and shall include the volume of compostable organic waste collected, in tons. With payment remittance, the City may review and obtain certain trade secret information, including rates, frequency of service, customer lists, other customer information, and contracts ("Confidential Information"). The City asserts this information is exempt from disclosure under the Arkansas Freedom of Information Act as the information meets the exemption for records that "if disclosed would give advantage to competitors." This information will only be reviewed by City financial staff and will not be made available to City Recycling & Trash Collection staff. Page 1 of 5 7. The City shall have the right to conduct an audit of Hauler's customer files and records for all customers located within the City, provided that such audit privilege shall be limited to once per calendar quarter. During such audit, the City may review and obtain certain trade secret information, including rates, frequency of service, customer lists, and other customer information ("Confidential Information"). This information shall not be divulged to any third party by the City, its employees, officers, or elected officials without the express written consent of the Hauler, or as otherwise required by law. The City asserts this information is exempt from disclosure under the Arkansas Freedom of Information Act as the information meets the exemption for records that "if disclosed would give advantage to competitors." This information will only be reviewed by City financial staff, and will not be made available to City Recycling & Trash Collection staff. The City will advise Hauler of any request for information which the City, at the City's sole discretion, determines to be non -disclosable or otherwise subject to an exemption from disclosure under the Arkansas Freedom of Information Act. If a court of competent jurisdiction determines that said requested information is disclosable or otherwise is not exempt from disclosure under the Arkansas Freedom of Information Act, the City will comply with said finding and notify Hauler. Discovery requests made to the City during the course of any litigation, or any other subpoena or court order issued to the City for information or records related to Hauler and this Agreement, shall be promptly made known to Hauler. 9. Hauler agrees and understands that it shall submit to the City by June 30th on an annual basis: (i) a list of all commercial vehicles used to provide services in the City; (ii) proof of appropriate vehicle registration; (iii) and proof of the insurance required by this Agreement. 10. Hauler agrees and understands that it shall provide by June 30th on an annual basis: (i) a list of vehicle operators collecting and hauling compostable organic waste in the City of Fayetteville; (ii) proof of their valid and appropriate commercial drivers' licenses; (iii) and the provision, maintenance, and implementation of a plan to ensure that the vehicle operators maintain their commercial driver's licenses in accordance with applicable federal and state laws. 11. Hauler agrees that it shall provide by June 30th on an annual basis copies of valid and current hauling and disposal permits from the Arkansas Department of Environmental Quality, the Solid Waste District with jurisdiction, and any local permitting agency, as required by state or local law. 12. Hauler agrees that it shall comply with all federal, state and local laws applicable to the safety, environmental and transportation matters related to providing collection services under this Agreement. Hauler agrees that all open -top roll -off style containers will be properly covered during transit on streets and highways within Fayetteville. 13. The City reserves the right to inspect all vehicles and containers to ensure that the vehicles are safe and well-maintained and that all containers are well-maintained and water tight, if necessary. 14. Hauler agrees and understands that it shall be required to establish an individual credit or service relationship with the City of Fayetteville transfer station operator. Hauler agrees that it shall comply with all practices, policies and procedures as established by the transfer station operator from time to time. Any tipping fee deposits required by the transfer station shall be refunded, less any unpaid tipping fees, when the Hauler ceases hauling activities governed by this Agreement. Page 2 of 5 15. This Agreement has been entered into freely and voluntarily by Hauler which agrees to abide by all of the terms and conditions as a matter of contractual obligation pursuant to applicable City ordinances. This is a contractual Agreement and is not intended to be part of or relate in any way to any license or ordinance created pursuant to A.C.A. §26-77-102. 16. Neither this Agreement, nor any rights or obligations hereunder may be assigned or transferred to any third part or affiliate. 17. For the purpose of this contract, the Point of Contact for the City of Fayetteville shall be the City's Environmental Director. The Point of Contact for the Hauler shall be Richard Ims. Communications pertaining to day-to-day aspects of this contract shall be through these individuals. Either party may change its designated Point of Contact upon ten (10) days prior written notice to the other party. 18. Hauler agrees to protect, indemnify, defend and save harmless the City, its officials, officers, employees, agents, subcontractors, representatives and assigns from any loss, claim, liability, penalty, fine, forfeiture, demand cause of action, suit and costs and expenses incidental thereto (including costs of defense, settlement and reasonable attorneys' fees), to the extent caused by (i) Hauler's breach of any term, condition, covenant or warranty contained in this Agreement, or (ii) Hauler's negligent act or omission or willful misconduct related to the delivery of compostable organic waste to the City transfer station. 19. Insurance: Hauler shall maintain the following insurance coverage during the term of this Agreement: a) Hauler shall provide and maintain, during the term of this Agreement, comprehensive general liability insurance, to protect against all claims arising out of the performance of its services hereunder that result in bodily injury, death or property damage. The policy or policies shall contain a clause that the insurer will not cancel or decrease the insurance coverage without first giving the City sixty (60) days notice in writing. b) Upon written request, Hauler shall furnish the City with evidence that the insurance required of it is in force. C) City will be added as an additional insured on General Liability and Auto Liability policies. d) The types of coverage and limits of liability of all insurance required herein shall be a follows: COVERAGE LIMITS OF LIABILITY Worker's Compensation Statutory Employer's Liability $500,000 Bodily Injury Liability except Automobile $1,000,000 each occurrence Property Damage Liability Except Automobile $1,000,000 each aggregate Automobile Bodily Injury $1,000,000 each person Comprehensive General Liability $1,000,000 each occurrence Automobile Property $1,000,000 Page 3 of 5 20. Damage Liabilityeach occurrence Excess Umbrella Liabilityeach $1,000,000 occurrence Termination: a) Except as otherwise provided herein, if Hauler breaches this Agreement or defaults in the performance of any of the requirement or conditions contained herein, and such breach continues for fifteen (15) days after the City has given the Hauler written notice of such breach or default, the City may: (i) terminate this Agreement no sooner than thirty (30) days after the date of written notice of such breach or default; (ii) cure the breach or default at the expense of the Hauler; and/or (iii) exercise any right or remedy to which it may be entitled by law. b) The City may terminate this Agreement upon written notice to the Hauler if the Hauler makes an assignment for the benefit of creditors, or files a voluntary petition in bankruptcy, receivership or insolvency, or files an answer in any involuntary proceeding of that nature admitting the material allegations of the petition, or if a proceeding in bankruptcy, receivership or insolvency shall be instituted and such proceeding is not dismissed within sixty (60) days. C) In the event that this Agreement is terminated for any reason, any amounts payable to the City by Hauler for services rendered for any reason whatsoever shall become immediately due and payable as of the date of such termination. 21. All notices required or permitted under this contract shall be submitted in writing to the other party of this contract by electronic mail, return receipt requested, and by U.S. Mail, which notice shall be effective three (3) days after deposit therein addressed to the following: City of Fayetteville Environmental Director 113 West Mountain Street Fayetteville, AR 72701 Food Recycling Solutions, LLC Attn: Richard Ims 13935 Pyramid Drive Rogers, AR 72758 22. Hauler agrees and understands that this Agreement and documents submitted to the City pursuant hereto are subject to the Arkansas Freedom of Information Act. If a Freedom of Information Act request is presented to the City of Fayetteville requesting such non-exempt documents, such non- exempt documents shall be provided in a prompt and timely manner as prescribed in the Arkansas Freedom of Information Act (Ark. Code Ann. § 25-19-101 et seq.). Only legally authorized photocopying costs may be assessed for this compliance. 23. This Agreement shall be interpreted according to and enforced under the laws of the State of Arkansas. Capitalized terms herein shall have the same meaning as set forth in ADEQ Reg. No. 22. 24. A waiver by either party of any of the terms or conditions herein shall be limited to that particular instance, and shall not be construed as a general waiver of either party's right to seek appropriate remedies for any other breaches by either party. Page 4 of 5 25. Each paragraph of the Agreement is severable from all other paragraphs. In the event any court of competent jurisdiction determines that any paragraph or subparagraph is invalid or unenforceable for any reason, all remaining paragraphs and subparagraphs shall remain in full force and effect. 26. This contract constitutes the entire understanding of the parties and no Notification or variation of the terms of this contract shall be valid unless made in writing and signed by the duly authorized agents of the City of Fayetteville and the Hauler. 27. Each of the undersigned warrants that he or she has the full right, power, and authority to execute this contract on behalf of the party indicated for the purposes herein contained. 28. To the extent a definition or a specific term is not provided herein but is nonetheless required by the context, it is the intention of the parties to incorporate herein the definitions contained in applicable law and regulation in effect as the date hereof, except to the extent subsequent law or regulation shall expressly or implicitly mandate a revised definition. 29. The obligations of the parties to this Agreement, which by their nature would continue beyond the termination, cancellation or expiration of this Agreement, shall survive the termination (for any reason), cancellation or expiration of this Agreement. IN WITNESS WHEREOF, we have hereunto set our hands on the date first written above. CITY OF FAYETTEVILLE ATTEST: FOOD RECYCLING SOLUTIONS, LLC By: - Richard Ims, ana ng Member BY: �'►-C�/Z4t �p �`����j GLERS SONDRA SMITH, City Clerk co�y '•�'� o 2 Page 5 of 5 Attachment A: Organic Compostable Documentation Required Supporting Information For Monthly Payment of Fees Due on or before the 15th of each calendar month for the immediately preceding calendar month. Payments of the fees received after the due date shall be assessed a 10% penalty per month. Hauler: Month: 1. Please give the number of permanent customer accounts you have within the corporate limits of the City of Fayetteville for the month reported. 2. Please give the number of temporary customer accounts you have within the corporate limits of the City of Fayetteville for the month reported. 3. Please give the total number of containers placed with all your customer accounts within the corporate limits of the City of Fayetteville for the month reported. 4. For each account identified above, please complete the attached form showing your unique account identifier which is blind to the City, the account type, the total number of containers with that account, the total number of pulls with that account, and the monthly revenues collected by container for that account. (A form is required for each customer account identified in item #1 and item #2. The container total from all the forms should equal the container total specified in item #3.) 5. The forms completed for item #4 above should include all normal billing charges for free, donated, or discounted services. These normal billing charges should include but not be limited to delivery, pull charges, disposal charges, transportation charges, final pull charges, and return charges. Only donated or discounted services to non-profit organizations may be excluded. 6. Total fee remitted to the City of Fayetteville for the month reported. (This should equal the total of all the account fees calculated on the attached forms.) I swear or affirm that all of the information provided above and on all attached forms is true, correct, and complete to the best of my knowledge and belief. Printed Name Signature Title Phone # Date Customer Account Identifier (use your unique identifier that is blind to the City) Customer Account Type (permanent or temporary) Total containers with account Total number of pulls with account Container # Monthly Revenues 1 2 3 4 5 6 7 8 9 10 Total: Donated or Discounted Normal Container # Billing Charge 1 2 3 4 5 Total: Grand Total: 5% of Grand Total: Fee to be remitted to City for this account CityClerk From: Sent: To: Cc: Subject: Pennington, Blake Monday, June 24, 2019 3:43 PM CityClerk west@dosslaw.biz FW: Agreement to Haul and Dispose of Organic Compostables in the City of Fayetteville Importance: High Expires: Categories: Sondra, Wednesday, June 23, 202112:00 AM Completed Will you please forward Attorney West Doss's email below to the City Council? This is related to the waste hauling contract with Food Recycling Solutions that is the first item of old business on the July 2 agenda. Thank you, Blake Blake E. Pennington Assistant City Attorney Tele: (479) 575-8313 bpennin ton ,fayetteville-ar.g_ov From: West Doss <west@doss law.biz> Sent: Monday, June 24, 2019 3:38 PM To: Pennington, Blake <bpennington@fayetteville-ar.gov> Subject: Agreement to Haul and Dispose of Organic Compostables in the City of Fayetteville Importance: High Dear Blake: Ms. Louie Mann brought by the referenced and asked us to review one issue. As you may know, Louie is concerned with the issue as to whether or not Haulers are complying with our city contracts. She feels that transparency is good government. In the past she was told by the City that she would have to get approval from the Hauler to observe and the Hauler refused. She wants to assure that she or any other citizen is getting what he or she is paying for in recycling. This is happening more and more in areas such as Ft. Smith, Arkansas, Dallas, Texas and recently within our own system. We ask that you consider adding a statement to either Paragraph 6 or 7 that reads as follows: The representatives of the City and/or its citizens shall have the right to arrive unannounced and observe the unloading or loading of composting of materials and related operations. We thank you in advance for your consideration. Cordially, West D. Westbrook Doss, Jr. 121 N. School Ave Fayetteville, Arkansas 72701 Ph: 479-521-1033 Fax: 800-986-1136 west@dosslaw.biz West Doss DOSS LAW FIRM est,wdcsslaw.biz THIS MESSAGE IS INTENDED ONLY FOR THE INDIVIDUAL OR ENTITY TO WHICH IT IS ADDRESSED. It may contain privileged, confidential, attorney work product, or trade secret information which is exempt from disclosure under applicable laws. If you are NOT the intended recipient, or an employee or agent responsible for delivering the message to the intended recipient, you are hereby notified that any dissemination, distribution, or copying of this message is strictly prohibited. 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