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RECYCLING SERVICES AGREEMENTRECYCLING SERVICES AGREEMENT BETWEEN CITY OF CLEARWATER AND WASTE CONNECTIONS OF FLORIDA THIS RECYCLING SERVICES AGREEMENT ("Agreement"), made and entered into this day of C4. -u-/ uL� 2023, by and between the CITY OF CLEARWATER, FLORIDA, a Florida municipal corporation, with a mailing address of P.O. Box 4748, Clearwater, Florida 33758, hereinafter referred to as "City", and Waste Connections of Florida, Inc., a Delaware corporation, with a mailing address of 1099 Miller Drive, Altamonte Springs, FL 32701, hereinafter referred to as "Company", and collectively as the "Parties". RECITALS WHEREAS, the City provides curbside collection of commingled recyclable material from Single Family Residences, Multi -Family Residences, and Commercial Establishments and requires a convenient way to process such Program Materials (as defined below); WHEREAS, the Company is a full-service, non -hazardous solid waste recycling company providing disposal services to commercial and residential customers in Florida, and has equipment to process and separate the Program Materials; WHEREAS, the City issued Invitation to Negotiate #29-23 on March 1, 2023, for the purpose of seeking a qualified Vendor to perform Recovered Material Processing Facility Services, and for the processing and marketing of Program Materials on behalf of the City. NOW, THEREFORE, in consideration of the mutual promises contained herein and other good and valuable consideration, the Parties agree that the above terms, recitals, and representations are true and accurate and are incorporated herein by reference, and the Parties further agree as follows: 1 1. DEFINITIONS: (A) "Company's Facility" means the Materials Recovery Facility (MRF) at which Program Materials will be delivered by the City, located at 1190 20th St. N, St. Petersburg, Florida 33713. (B) "Contaminate or Contamination" means that portion of the Program Materials stream that does not consist of materials included in the definition of Program Materials. (C) "Disposal Fee" means the sum of costs incurred for the processing of Non -Recyclable Materials which exceed the acceptable thresholds and processing requirements provided in Section 8 and shall be equal to the cost the Company pays to a third -party hauler per load, not to exceed $300 in fixed costs, to the Pinellas County Solid Waste Department, plus the standard tipping fee per Ton for Municipal Solid Waste (MSW) as set forth annually by the Pinellas County Solid Waste Department, for the actual weight at the time of disposal per load measured in Tons. (D) "Hazardous Materials" are defined as any substance or material that could adversely affect the safety of the public, handlers or carriers during transportation including those that are or contain radioactive, volatile, corrosive, highly flammable, explosive, biomedical, infectious, biohazardous, toxic or hazardous material as defined by the United States Environmental Protection Agency or any other federal, state or local statute, law, ordinance, code, rule, regulation order or decree regulating, relating to, or imposing liability or standards of conduct concerning any hazardous, toxic or dangerous waste, substance or material as now or at any time hereafter in effect, including, but not limited to F.S. § 403.703(21). 2 (E) "Monthly Processing Fee" means one hundred and twenty dollars ($120.00) per Ton for each Ton of Program Materials delivered to the Company's Facility and accepted by the Company in any given month. On each anniversary of the Effective Date, during the Term of this Agreement, the Monthly Processing Fee shall be increased by the percentage increase in the Consumer Price Index for All Urban Consumers (CPI -U), US City Average, All Items, for the previous twelve -month -period, as provided in Section 6. (F) "Monthly Sellable Commodity Average Market Value (AMV)" means the sum of (i) the index value of each Sellable Commodity as first published each month by wwwrecyclemarkets.net (Average Southeast Region Index) multiplied by (ii) the applicable material percentage of each Sellable Commodity as set forth in Exhibit A. (G) "Monthly Sellable Commodity Tonnage" means (i) the number of Tons of Program Materials delivered to the Company's Facility in any given month, minus (ii) the number of Tons of Non -Recyclable Materials. (H) "Non -Recyclable Materials" means Program Materials categorized as non -recyclable on Exhibit A. (I) "Program Materials" means Single Stream commingled materials deposited by recycling customers of Residential, Multi -Family, and Commercial customer classifications, for the purpose of recycling which shall be collected curbside by the City or its third -party contractors. Program Materials shall include the list of materials as identified in Exhibit A and shall be amended only by written agreement between the City and Company, as markets develop for additional materials. Program Materials include incidental amounts of rejects and non -designated materials as can normally be expected as part of municipal recycling collection. 3 (J) "Residue or Residuals" means Recyclable materials that are accepted by the Company, processed at the MRF, and not converted into a Sellable Commodity due to breakage and/or transportation or processing limitations or inefficiencies. (K) "Sellable Commodity" means every Recyclable Commodity, specifically excluding those Program Materials categorized as non -recyclable on Exhibit A. (L) "Ton" refers to a unit of weight equal to 2,000 pounds. 2. TERM: The initial term of the Agreement shall be for a period of one (1) year, commencing on the Effective Date, unless earlier terminated as provided for herein. This Agreement may be extended (under the same terms and conditions) for three (3) one (1) year periods at the end of the then expiring term, provided such extension is mutually agreed upon by the Parties in writing, no later than thirty (30) days prior to the expiration of the current term. 3. QUANTITY AND QUALITY: During the term of the Agreement, the Company shall be the exclusive provider of the services as specified in Invitation to Negotiate #29-23 and shall take and the City agrees to provide and deliver one hundred percent (100%) of the City's Program Materials. The City represents and warrants that it shall provide and deliver Program Materials as set forth in Exhibit A ("Specifications"). Title to Program Materials delivered by City to Company is transferred to Company upon receipt unless otherwise provided in this Agreement or applicable law. Nothing herein shall be construed to relieve the Company of its duties or obligations regarding notifying the City of and segregating any Hazardous Materials delivered with Program Materials as required by this Agreement. 4 4. COMPOSITION STUDY OF COLLECTED MATERIALS: (A) The types of Program Materials and the material percentages are set forth in Exhibit A. Commencing at the beginning of the initial Agreement term, the City, including a third -party consultant on behalf of the City, may conduct a composition study of the Program Materials to determine the current composition of Program Materials within ninety (90) days, and shall provide notice to the Company of an intent to conduct such study, including the quantity and quality of Program Materials, and methodology of the study. After the composition study is conducted, the average weight of the types of Program Materials shall be used to determine the percentage attributable to each type of Program Materials, to be included in the calculation of an Average Market Value ("AMV") formula as set forth in Exhibit B. The City reserves the right to conduct composition studies at a frequency of no greater than once per agreement year, including any applicable renewal(s) periods. The results of any future composition studies shall be deemed to replace the then existing Program Materials and composition percentages on Exhibit A ("Specifications"). (B) In the event that the Parties disagree on the results of any composition study, the Parties agree to retain an unbiased third -party consultant (mutually agreed upon by the Parties) to conduct a composition study of the Program Materials. The Parties agree that the cost for such consultant shall be paid for by the City. 5. RECYCLABLE VALUE: The value of the Program Materials meeting the Specifications shall be set forth in Exhibit B, as those values may fluctuate from time to time. 5 6. CHARGES: PAYMENTS; ADJUSTMENTS: (A) On or before the 10`h day of each month during the Term, Company shall provide the City a detailed invoice identifying the Monthly Recyclables Processing Payment with appropriate documentation which shall evidence the preceding month's Monthly Processing Fees and Monthly Commodity Amount (as defined herein). The Monthly Recyclables Processing Payment equals the Monthly Processing Fees minus the Monthly Commodity Amount. If a Monthly Recyclables Processing Payment is owed to the City (because the Monthly Commodity Amount excludes the Monthly Processing Fees), Company shall remit payment of the Monthly Recyclables Processing payment with the invoice. In the event that the Monthly Processing Fees are greater than the Monthly Commodity Amount, the City shall remit payment in an amount equal to the Monthly Processing Fees minus the Monthly Commodity Amount as stipulated in Exhibit B "Recyclable Value" as such value fluctuates from time to time. Such payment shall be made by the City within thirty (30) days after receipt of the monthly invoice. (B) Company reserves the right to increase the Charges payable by the City during the term, including any applicable renewal term(s) no more often than annually from the commencing date for increases in the Consumer Price Index as defined in Section 1. Any increase in Charges enumerated above may cover increases or cost changes for processing, recycling, storage, and/or third -party transportation or any other transportation costs, or changes in local, state, or federal laws or regulations. The forgoing notwithstanding, at any time they may be adjusted, the Company is permitted to submit any increases assessed by the Pinellas County Solid Waste Department for disposal as a pass-through to the City, this is separate and distinct from any Consumer Price Index changes. Company agrees that such submission for increases shall be submitted in writing to the City no later than sixty (60) days prior to the expiration of the current Agreement term. 6 7. SERVICE: The City shall deliver Program Materials, at the City's expense, to the Company's Facility during the hours set forth by the Company, Monday through Friday, excluding designated holidays of the City. (A) Obligations, Duties and Responsibilities of the City (i) In Addition to the City's other obligations, duties, and responsibilities set forth in this Agreement, the City shall be responsible for and shall bear all costs and expenses associated with the collecting of Program Materials, public outreach and education surrounding the City's recycling program and accepted materials, delivery of Program Materials to the Company's Facility for sorting and processing, and removing any truck load of Program Materials that is rejected due to an excess of Non -Recyclable materials of twenty-five percent (25%) or greater in accordance with Section 8. (ii) The City shall appoint in writing to the Company one or more designated representatives who will be readily available during normal business hours of the City. (B) Obligations, Duties and Responsibilities of the Company (i) In addition to the Company's other obligations, duties and responsibilities set forth in this Agreement, the Company shall be responsible for and shall bear all costs and expenses associated with operating the Company's Facility and providing access to certified scale(s) and tipping floor(s) during normal operating hours (defined as 7:00 a.m. to 5:00 p.m. Monday -Friday), accurately weighing and providing scale tickets which shall include truck number, time, date, and weights of vehicles both inbound and outbound which deliver Program Materials, accepting Program Materials, processing every Recyclable Commodity 7 in a manner so that they can be recycled and/or sold to markets, disposing of any Non - Recyclable Materials and any other wastes (except for Hazardous Materials). (ii) The Company will notify the City of any Hazardous Materials that have been delivered with the Program Materials and segregate any Hazardous Materials, which shall be removed by the City within a period of twenty-four (24) hours following notification to the City's designated representative. (iii) The Company shall appoint in writing to the City one or more designated representatives authorized to act on behalf of Waste Connections of Florida, Inc. and shall be regularly present during the operational hours of the Facility. (iv) The Company will maintain on-site of the Company's Facility, a Contingency Plan with procedures that shall be executed in the event that Program Materials cannot be processed at the Company's Facility for any reason. In the event that the Company's Facility is unable to accept delivery of the Program Materials, the Company warrants that it shall be solely responsible, and bear all costs, for the transportation and processing of Program Materials to the contingent processor, under the same conditions and requirements contained herein, as follows: Single Stream Recyclers LLC 3901 N. Orange Ave. Sarasota, FL 34234 (v) The Company will provide reports on the monthly volumes of delivered Program Materials and every Sellable Commodity delivered by the City on or before the 10th day of each month during the Term for the preceding month. Such reports will contain the delivery date and tonnage of each truck load, and the percentage amount of Non -Recyclable 8 Materials. The City reserves the right to request and inspect daily delivery tickets under the same specifications and conditions as provided herein. (vi) The Company will provide reports on the Monthly Sellable Commodity Average Market Value (AMV) for Program Materials based upon the established weight -based composition as set forth in Exhibit A on or before the 10t day of each month during the Term for the current month. 8. CONTAMINATION: In the event that Non -Recyclable Materials in excess of twenty-five percent (25%) are discovered after visual inspection in any given load, the Company shall notify the driver while on the premises of the Company's Facility, and also notify the City's Representative by phone. The Company will notate the date, time, vehicle number and estimated quantity of Non -Recyclable Materials. The Company shall segregate such rejected load pending instruction of the City's Representative for processing. If the City proceeds to remove the rejected load within two (2) hours of being notified by phone, such rejected load(s) shall not be included in the Monthly Sellable Commodity Tonnage Calculation, nor will the City pay a Processing Fee. If the City is unable to remove the load, refuses to remove the load, or fails to remove the load within two (2) hours of notification, the Company may dispose of the rejected load at the City's sole cost and expense by assessment of a Disposal Fee. In the event the procedures outlined herein are not followed, the Company shall compensate the City for the total weight of the load and/or be responsible for all costs associated with disposal of the load. 9. INVITATION TO NEGOTIATE #29-23, STANDARD TERMS AND CONDITIONS: All terms and conditions set forth in ITN #29-23, Standard Terms and Conditions are incorporated by reference as modified by the Parties, and hereto attached at Exhibit C. Any inconsistency in 9 documents relating to this Agreement shall be resolved by giving precedence in the following order: (i) this Agreement and subsequent Amendments, and (ii) ITN #29-23, Standard Terms and Conditions. 10. AMENDMENT OR WAIVER: This Agreement may not be amended, nor any of its terms waived, unless such amendment or waiver is in writing and signed by the Parties. 11. GOVERNING LAW AND VENUE: This Agreement shall be interpreted and construed in accordance with the laws of the State of Florida and shall inure to and be binding upon the Parties, their successors and assigns. Venue for any actions brought in state court shall be in Pinellas County. Venue for any action brought in federal court shall be in the Middle District of Florida, Tampa Division. The Parties consent to the personal jurisdiction of the aforementioned courts and irrevocably waive any objections to said jurisdiction. 12. INDEMNIFICATION: The Parties recognize that the Company is an independent contractor. The Company agrees to assume liability for and indemnify, hold harmless, and defend the City, its officers, employees, agents, and attorneys (collectively, the "Indemnified Parties") of, from, and against all liability and expenses, including reasonable attorney's fees, in connection with any and all claims, demands, damages, actions, causes of action, and suits in equity of whatever kind or nature, including claims for personal injury, property damage, equitable relief, or loss of use (collectively, the "Claims"), to the extent arising out of the Company's negligence or willful misconduct in the execution, performance, nonperformance, or enforcement of the terms and conditions of this Agreement. The Company's liability hereunder shall include all reasonable attorney's fees and costs incurred by 10 the City in the enforcement of this indemnification provision. This includes claims made by the Company's employees against the City, and the Contractor hereby waives entitlement, if any, to immunity under Section 440.11, Florida Statutes. The obligations contained in this provision shall survive termination of this Agreement and shall not be limited by the amount of any insurance required to be obtained or maintained under this Agreement. Nothing contained in the foregoing indemnification shall be construed to be a waiver of any immunity or limitation of liability the City may be entitled to under the doctrine of sovereign immunity, or any provision of Section 768.28, Florida Statutes. Nothing contained herein shall obligate the Company to assume liability for or indemnify, hold harmless,or defend the Indemnified Parties to the extent the Claims are caused by the negligence or willful misconduct of the Indemnified Parties or the violation of any laws, rules, regulations, ordinances, orders, licenses, or permits by the Indemnified Parties. 13. NOTICES: Unless and to the extent otherwise provided in this Agreement, all notices, demands, requests for approvals and other communications which are required to be given by either party to the other shall be in writing and shall be deemed given and delivered on the date delivered in person. TO CITY: 1701 N. Hercules Avenue Clearwater, FL 33765 ATTN: Director of Solid Waste & Recycling (727) 562-4920 With a copy to: City of Clearwater P.O. Box 4748 Clearwater, FL 33758 14. INSURANCE REQUIREMENTS: 11 TO COMPANY: Waste Connections of Florida, Inc. 11500 43rd St. North Clearwater, FL 33762 ATTN: Director of Municipal Affairs Insurance Requirements are set forth in Exhibit D, which is incorporated by reference and attached hereto. IN WITNESS WHEREOF, the Parties have caused this Agreement to be signed in its corporate/legal name by its authorized representatives or persons authorized to execute this Agreement on the date and year first above written. WASTE Co , CTIONS OF FLORIDA, INC. By: P tN Title: WITNESS: By: / t,k_6 Print Name: C ► ; P( ,L r CITY OF CLEARWATER, FLORIDA Approved as to form: Owen Kohler Lead Assistant City Attorney 12 Jenn"fof Poirrier City Manager Attest: ,k,auktitti R osanarie Call City Clerk UNANIMOUS WRITTEN CONSENT OF THE SOLE DIRECTOR OF WASTE CONNECTIONS OF FLORIDA, INC. The undersigned, being the sole director of Waste Connections of Florida, Inc., a Delaware corporation (the "Company"), hereby consents to the following actions and adopts the following resolution pursuant to the Bylaws of this corporation: BE IT RESOLVED that Damian Ribar, Division Vice President of the Company, be, and he hereby is, authorized to sign, submit, and execute by and on behalf of the Company any and all agreements, instruments, documents or papers, as he may deem reasonably appropriate or necessary, pertaining to the Recycling Services Agreement between the City of Clearwater and Waste Connections of Florida, Inc., and that any such action taken to date involving the above is hereby ratified and approved. IN WITNESS WHEREOF, the undersigned sole director of Waste Connections of Florida, Inc. has duly executed this Written Consent in The Woodlands, Texas on the date set forth opposite his name. Dated: August 8, 2023 {00111313.DOC.2} EXHIBIT A SPECIFICATIONS SINGLE STREAM PROGRAM MATERIALS AND COMPOSITION Commodity Weight (lbs.) Weight (Tons) % of Stream Mixed Paper 29,076.00 14.54 28.81% OCC 17,446.00 8.72 17.29% UBC 1,451.00 0.73 1.44% Steel 1,554.00 0.78 1.54% PET 5,248.00 2.62 5.20% HDPE Natural 914.00 0.46 0.91% HDPE Color 1,154.00 0.58 1.14% Glass 24,075.00 12.04 23.86% Residue (non) 10,715.00 5.36 10.62% Contamination (non) 9,279.00 4.64 9.20% TOTAL 100,912.00 50.46 100.00% Updated: December 2022 13 EXHIBIT B RECYCLABLE VALUE FIXED PROCESSING FEE PER TON: $120.00 AMV Blended Value Value Share % To Customer Value Share % To WC Customer Pays WC Rebate to Customer (EXAMPLE) Customer's Net (EXAMPLE) < $60 0% 100% $120 $- $120 $60 40% 60% $120 $24 $96 $70 40% 60% $120 $28 $92 $80 50% 50% $120 $40 $80 > $90 60% 40% $120 $54 $66 TEMPLATE FOR CALCULATION OF SINGLE STREAM PROGRAM MATERIALS AVERAGE MARKET VALUE FORMULA BY MONTHLY COMMODITY AMOUNT: Program Material Composition % (December 2022) RecyclingMarkets.net Index ($/Ton) July 2023 AMV ($/Ton) July 2023 Mixed Paper PS#54 28.81% Southeast Region $17.50 $5.04 SRP PS#56 0.00% Southeast Region $32.50 - Cardboard PS#11 17.29% Southeast Region $52.50 $9.08 PET 5.20% Southeast Region $200.00 $10.40 Natural HDPE 0.91% Southeast Region $850.00 $7.73 Colored HDPE 1.14% Southeast Region $210.00 $2.39 PP 0.00% Southeast Region $170.00 - Plastics #3-7 0.00% Southeast Region $10.00 - Mixed Bulky Rigid 0.00% Southeast Region $90.00 - UBC (Aluminum) 1.44% Southeast Region $1,400.00 $20.16 Steel 1.54% Southeast Region $240.00 $3.70 Mixed Glass 23.86% Southeast Region ($32.50) ($7.75) Contamination 19.82% - 0.00 0.00 Total AMV 100% 14 $50.75 Exhibit C Standard Terms and Conditions S.1 DEFINITIONS. Uses of the following terms are interchangeable as referenced: "vendor, contractor, supplier, proposer, company, parties, persons", "purchase order, PO, contract, agreement", "city, Clearwater, agency, requestor, parties°, "bid, proposal, response, quote". S.2 INDEPENDENT CONTRACTOR. It is expressly understood that the relationship of Contractor to the City will be that of an independent contractor. Contractor and all persons employed by Contractor, either directly or indirectly, are Contractor's employees, not City employees. Accordingly, Contractor and Contractor's employees are not entitled to any benefits provided to City employees including, but not limited to, health benefits, enrollment in a retirement system, paid time off or other rights afforded City employees. Contractor employees will not be regarded as City employees or agents for any purpose, including the payment of unemployment or workers' compensation. If any Contractor employees or subcontractors assert a claim for wages or other employment benefits against the City, Contractor will defend, indemnify and hold harmless the City from all such claims. S.3 SUBCONTRACTING. Contractor may not subcontract work under this Agreement without the express written permission of the City. If Contractor has received authorization to subcontract work, it is agreed that all subcontractors performing work under the Agreement must comply with its provisions. Further, all agreements between Contractor and its subcontractors must provide that the terms and conditions of this Agreement be incorporated therein. S.4 ASSIGNMENT. Vendor may assign this Agreement to an affiliated company of Vendor. For all other assignments, this Agreement may not be assigned either in whole or in part without first receiving the City's written consent which shall not be unreasonably withheld. Any attempted assignment, either in whole or in part, without such consent will be null and void and in such event the City will have the right at its option to terminate the Agreement. No granting of consent to any assignment will relieve Contractor from any of its obligations and liabilities under the Agreement. S.5 SUCCESSORS AND ASSIGNS, BINDING EFFECT. This Agreement will be binding upon and inure to the benefit of the parties and their respective permitted successors andassigns. S.6 NO THIRD PARTY BENEFICIARIES. This Agreement is intended for the exclusive benefit of the parties. Nothing set forth in this Agreement is intended to create, or will create, any benefits, rights, or responsibilities in any third parties. S.7 Omitted. S.8 AMENDMENTS. There will be no oral changes to this Agreement. This Agreement can only be modified in a writing signed by both parties. No charge for extra work or material will be allowed unless approved in writing, in advance, by the City and Contractor. S.9 TIME OF THE ESSENCE. Time is of the essence to the performance of the parties' obligations under this Agreement. S.10 COMPLIANCE WITH APPLICABLE LAWS. a. General. Contractor must procure all permits, licenses, and pay all charges and fees necessary and incidental to the lawful conduct of business. Contractor must stay fully informed of existing and future federal, state, and local laws, ordinances, and regulations that in any manner affect the fulfillment of this Agreement and must comply with the same at its own expense. Contractor bears full responsibility for training, safety, and providing necessary equipment for all Contractor personnel to achieve throughout the term of the Agreement. Upon request, Contractor will demonstrate to the City's satisfaction any programs, procedures, and other activities used to ensurecompliance. b. Drug -Free Workplace. Contractor is hereby advised that the City has adopted a policy establishing a drug- free workplace for itself and those doing business with the City to ensure the safety and health of all persons working on City contracts and projects. Contractor will require a drug-free workplace for all Contractor personnel working under this Agreement. Specifically, all Contractor personnel who are working under this 1 Exhibit C Standard Terms and Conditions Agreement must be notified in writing by Contractor that they are prohibited from the manufacture, distribution, dispensation, possession, or unlawful use of a controlled substance in the workplace. Contractor agrees to prohibit the use of intoxicating substances by all Contractor personnel and will ensure that Contractor personnel do not use or possess illegal drugs while in the course of performing their duties. c. Federal and State Immigration Laws. Contractor agrees to comply with the Immigration Reform and Control Act of 1986 (IRCA) in performance under this Agreement and to permit the City and its agents to inspect applicable personnel records to verify such compliance as permitted by law. Contractor will ensure and keep appropriate records to demonstrate that all Contractor personnel have a legal right to live and work in the United States. (i) As applicable to Contractor, under this provision, Contractor hereby warrants to the City that Contractor and each of its subcontractors will comply with, and are contractually obligated to comply with, all federal immigration laws and regulations that relate to their employees (hereinafter 'Contractor Immigration Warranty"). (ii) A breach of the Contractor Immigration Warranty will constitute as a material breach of this Agreement and will subject Contractor to penalties up to and including termination of this Agreement at the sole discretion of the City. (iii) The City retains the legal right to inspect the papers of all Contractor personnel who provide services under this Agreement to ensure that Contractor or its subcontractors are complying with the Contractor Immigration Warranty. Contractor agrees to assist the City in regard to any such inspections. (iv) The City may, at its sole discretion, conduct random verification of the employment records of Contractor and any subcontractor to ensure compliance with the Contractor Immigration Warranty. Contractor agrees to assist the City in regard to any random verification performed. (v) Neither Contractor nor any subcontractor will be deemed to have materially breached the Contractor Immigration Warranty if Contractor or subcontractor establishes that it has complied with the employment verification provisions prescribed by Sections 274A and 274B of the Federal Immigration and Nationality Act. d. Nondiscrimination. Contractor represents and warrants that it does not discriminate against any employee or applicant for employment or person to whom it provides services because of race, color, religion, sex, national origin, or disability, and represents and warrants that it complies with all applicable federal, state, and local laws and executive orders regarding employment. Contractor and Contractor's personnel will comply with applicable provisions of Title VII of the U.S. Civil Rights Act of 1964, as amended, Section 504 of the Federal Rehabilitation Act, the Americans with Disabilities Act (42 U.S.C. § 12101 et seq.), and applicable rules in performance under this Agreement. S.11 SALES/USE TAX, OTHER TAXES. a. Contractor is responsible for the payment of all taxes including federal, state, and local taxes related to or arising out of Contractor's services under this Agreement, including by way of illustration but not limitation, federal and state income tax, Social Security tax, unemployment insurance taxes, and any other taxes or business license fees as required. If any taxing authority should deem Contractor or Contractor employees an employee of the City or should otherwise claim the City is liable for the payment of taxes that are Contractor's responsibility under this Agreement, Contractor will indemnify the City for any tax liability, interest, and penalties imposed upon the City. b. The City is exempt from paying state and local sales/use taxes and certain federal excise taxes and will furnish an exemption certificate upon request. 2 Exhibit C Standard Terms and Conditions S.12 AMOUNTS DUE THE CITY. Contractor must be current and remain current in all obligations due to the City during the performance of services under the Agreement. Payments to Contractor may be offset by any delinquent amounts due the City or fees and charges owed to the City. S.13 OPENNESS OF PROCUREMENT PROCESS. Written competitive proposals, replies, oral presentations, meetings where vendors answer questions, other submissions, correspondence, and all records made thereof, as well as negotiations or meetings where negotiation strategies are discussed, conducted pursuant to this RFP, shall be handled in compliance with Chapters 119 and 286, Florida Statutes. Proposals or replies received by the City pursuant to this RFP are exempt from public disclosure until such time that the City provides notice of an intended decision or until 30 days after opening the proposals, whichever is earlier. If the City rejects all proposals or replies pursuant to this RFP and provides notice of its intent to reissue the RFP, then the rejected proposals or replies remain exempt from public disclosure until such time that the City provides notice of an intended decision concerning the reissued RFP or until the City withdraws the reissued RFP. A proposal or reply shall not be exempt from public disclosure longer than 12 months after the initial City notice rejecting all proposals or replies. Oral presentations, meetings where vendors answer questions, or meetings convened by City staff to discuss negotiation strategies, if any, shall be closed to the public (and other proposers) in compliance with Chapter 286 Florida Statutes. A complete recording shall be made of such closed meeting. The recording of, and any records presented at, the exempt meeting shall be available to the public when the City provides notice of an intended decision or until 30 days after opening proposals or final replies, whichever occurs first. If the City rejects all proposals or replies pursuant to this RFP and provides notice of its intent to reissue the RFP, then the recording and any records presented at the exempt meeting remain exempt from public disclosure until such time that the City provides notice of an intended decision concerning the reissued RFP or until the City withdraws the reissued RFP. A recording and any records presented at an exempt meeting shall not be exempt from public disclosure longer than 12 months after the initial City notice rejecting all proposals or replies. jn addition to all other contract reauirements as provided by law. the contractor executing thin aareement agrees to cannily with public records law, IF THE CONTRACTOR HAS QUESTIONS REGARDING THE APPLICATION OF CHAPTER 119, FLORIDA STATUTES, TO THE CONTRACTOR'S DUTY TO PROVIDE PUBLIC RECORDS RELATING TO THIS CONTRACT, CONTACT THE CUSTODIAN OF PUBLIC RECORDS, Rosemarie Call, phone: 727-562-4092 orftosemarie.Cali®myclearwater.corn, 600 Cleveland Street, Suite 600, Clearwater, FL 33755. The Contractor agrees to comely with the following: a) Keep and maintain public records required by the City of Clearwater (hereinafter "public agency") to perform the service being provided by the contractor hereunder. b) Upon request from the public agency's custodian of public records, provide the public agency with a copy of the requested records or allow the records to be inspected or copied within a reasonable time at a cost that does not exceed the cost provided for in Chapter 119, Florida Statutes, as may be amended from time to time, or as otherwise provided bylaw. c) Ensure that the public records that are exempt or confidential and exempt from public records disclosure requirements are not disclosed except as authorized by law for the duration of the contract term and following completion of the contract if the contractor does not transfer the records to the public agency. d) Upon completion of the contract, transfer, at no cost, to the public agency all public records in possession of the contractor or keep and maintain public records required by the public agency to perform the service. If the contractor transfers all public records to the public agency upon completion of the contract, the 3 Exhibit C Standard Terms and Conditions contractor shall destroy any duplicate public records that are exempt or confidential and exempt from public records disclosure requirements. If the contractor keeps and maintains public records upon completion of the contract, the contractor shall meet all applicable requirements for retaining public records. All records stored electronically must be provided to the public agency, upon request from the public agency's custodian of public records, in a format that is compatible with the information technology systems of the public agency. e) A request to inspect or copy public records relating to a public agency's contract for services must be made directly to the public agency. If the public agency does not possess the requested records, the public agency shall immediately notify the contractor of the request and the contractor must provide the records to the public agency or allow the records to be inspected or copied within a reasonable time. f) The contractor hereby acknowledges and agrees that if the contractor does not comply with the public agency's request for records, the public agency shall enforce the contract provisions in accordance with the contract. g) A contractor who fails to provide the public records to the public agency within a reasonable time may be subject to penalties under Section 119.10, Florida Statutes. h) If a civil action is filed against a contractor to compel production of public records relating to a public agency's contract for services, the court shall assess and award against the contractor the reasonable costs of enforcement, including reasonable attorney fees, if: 1. The court determines that the contractor unlawfully refused to comply with the public records request within a reasonable time; and 2. At least eight (8) business days before filing the action, the plaintiff provided written notice of the public records request, including a statement that the contractor has not complied with the request, to the public agency and to the contractor. i) A notice complies with subparagraph (h)2. if it is sent to the public agency's custodian of public records and to the contractor at the contractor's address listed on its contract with the public agency or to the contractor's registered agent. Such notices must be sent by common carrier delivery service or by registered, Global Express Guaranteed, or certified mail, with postage or shipping paid by the sender and with evidence of delivery, which may be in an electronic format. A contractor who complies with a public records request within 8 business days after the notice is sent is not liable for the reasonable costs of enforcement. S.14 AUDITS AND RECORDS. Contractor must preserve the records related to this Agreement for five (5) years after completion of the Agreement. The City or its authorized agent reserves the right to inspect any records related to the performance of work specified herein. In addition, the City may inspect any and all billing or other relevant records kept by Contractor in relation to the Agreement. Contractor will permit such inspections and audits during normal business hours and upon reasonable notice by the City. The audit of records may occur at Contractor's place of business or at City offices, as determined by the City. S.15 BACKGROUND CHECK. The City may conduct criminal, driver history, and all other requested background checks of Contractor personnel who would perform services under the Agreement or who will have access to the City's information, data, or facilities in accordance with the City's current background check policies. Any officer, employee, or agent that fails the background check must be replaced immediately for any reasonable cause not prohibited by law. S.16 SECURITY CLEARANCE AND REMOVAL OF CONTRACTOR PERSONNEL. The City will have final authority, based on security reasons: (i) to determine when security clearance of Contractor personnel is required; (ii) to determine the nature of the security clearance, up to and including fingerprinting Contractor 4 Exhibit C Standard Terms and Conditions personnel; and (iii) to determine whether or not any individual or entity may provide services under this Agreement. If the City objects to any Contractor personnel for any reasonable cause not prohibited by law, then Contractor will, upon notice from the City, remove any such individual from performance of services under thisAgreement. S.17 DEFAULT. a. A party will be in default if that party: (i) Is or becomes insolvent or is a party to any voluntary bankruptcy or receivership proceeding, makes an assignment for a creditor, or there is any similar action that affects Contractor's capability to perform under theAgreement; (ii) Is the subject of a petition for involuntary bankruptcy not removed within sixty (60) calendar days; (iii) Conducts business in an unethical manner or in an illegal manner; or (iv) Fails to carry out any term, promise, or condition of theAgreement. b. Contractor will be in default of this Agreement if Contractor is debarred from participating in City procurements and solicitations in accordance with Section 27 of the City's Purchasing and Procedures Manual. c. Notice and Opportunity to Cure. In the event a party is in default then the other party will provide written notice to the defaulting party of the default. The defaulting party will have thirty (30) days from receipt of the notice to cure the default. The thirty (30) day cure period may be extended by mutual agreement of the parties, but no cure period may exceed ninety (90) days. A default notice will be deemed to be sufficient if it is reasonably calculated to provide notice of the nature and extent of such default. Failure of the non - defaulting party to provide notice of the default does not waive any rights under the Agreement. d. Anticipatory Repudiation. Whenever the City in good faith has reason to question Contractor's intent or ability to perform, the City may demand that Contractor give a written assurance of its intent and ability to perform. In the event that the demand is made and no written assurance is given within five (5) calendar days, the City may treat this failure as an anticipatory repudiation of theAgreement. S.18 REMEDIES. The remedies set forth in this Agreement are not exclusive. Election of one remedy will not preclude the use of other remedies. In the event of default: a. The non -defaulting party may terminate the Agreement, and the termination will be effective immediately or at such other date as specified by the terminating party. b. The City may purchase the services required under the Agreement from the open market, complete required work itself, or have it completed at the expense of Contractor. If the cost of obtaining substitute services exceeds the contract price, the City may recover the excess cost by: (i) requiring immediate reimbursement to the City; (ii) deduction from an unpaid balance due to Contractor, (iii) collection against the proposal and/or performance security, if any; (iv) collection against liquidated damages (if applicable); or (v) a combination of the aforementioned remedies or other remedies as provided by law. Costs includes any and all, fees, and expenses incurred in obtaining substitute services and expended in obtaining reimbursement, including, but not limited to, administrative expenses, attorneys' fees, and costs. c. The non -defaulting party will have all other rights granted under this Agreement and all rights at law or in equity that may be available to it. d. Neither party will be liable for incidental, special, or consequential damages. 5 Exhibit C Standard Terms and Conditions S.19 CONTINUATION DURING DISPUTES. Contractor agrees that during any dispute between the parties, Contractor will continue to perform its obligations until the dispute is settled, instructed to cease performance by the City, enjoined or prohibited by judicial action, or otherwise required or obligated to cease performance by other provisions in thisAgreement. S.20 Omitted. S.21 CONFLICT OF INTEREST F.S. Section 112. Pursuant to F.S. Section 112, the City may cancel this Agreement after its execution, without penalty or further obligation, if any person significantly involved in initiating, securing, drafting, or creating the Agreement for the City becomes an employee or agent of Contractor. S.22 TERMINATION FOR NON -APPROPRIATION AND MODIFICATION FOR BUDGETARY CONSTRAINT. The City is a governmental agency which relies upon the appropriation of funds by its governing body to satisfy its obligations. If the City reasonably determines that it does not have funds to meet its obligations under this Agreement, the City will have the right to terminate the Agreement without penalty on the last day of the fiscal period for which funds were legally available. In the event of such termination, the City agrees to provide written notice of its intent to terminate thirty (30) calendar days prior to the stated termination date. S.23 PAYMENT TO CONTRACTOR UPON TERMINATION. Upon termination of this Agreement, Contractor will be entitled only to payment for those services performed up to the date of termination, and any authorized expenses already incurred up to such date of termination. The City will make final payment within thirty (30) calendar days after the City has both completed its appraisal of the materials and services provided and received Contractor's properly prepared final invoice. S.24 NON -WAIVER OF RIGHTS. There will be no waiver of any provision of this agreement unless approved in writing and signed by the waiving party. Failure or delay to exercise any rights or remedies provided herein or by law or in equity, or the acceptance of, or payment for, any services hereunder, will not release the other party of any of the warranties or other obligations of the Agreement and will not be deemed a waiver of any such rights or remedies. S.25 Omitted. S.26 WARRANTY. Contractor warrants that the services and materials will conform to the requirements of the Agreement. Additionally, Contractor warrants that all services will be performed In a good, workman -like and professional manner. The City's acceptance of service or materials provided by Contractor will not relieve Contractor from its obligations under this warranty. If any materials or services are of a substandard or unsatisfactory manner as determined by the City, Contractor, at no additional charge to the City, will provide materials or redo such services until in accordance with this Agreement and to the City's reasonable satisfaction. Unless otherwise agreed, Contractor warrants that materials will be new, unused, of most current manufacture and not discontinued, will be free of defects in materials and workmanship, will be provided in accordance with manufacturer's standard warranty for at least one (1) year unless otherwise specified, and will perform in accordance with manufacturer's published specifications. S.27 THE CITY'S RIGHT TO RECOVER AGAINST THIRD PARTIES. Contractor will do nothing to prejudice the City's right to recover against third parties for any loss, destruction, or damage to City property, and will at the City's request and expense, furnish to the City reasonable assistance and cooperation, including assistance in the prosecution or defense of suit and the execution of instruments of assignment in favor of the City in obtaining recovery. S.28 Omitted. S.29 OWNERSHIP. All deliverables, services, and information provided by Contractor or the City pursuant to 6 Exhibit C Standard Terms and Conditions this Agreement (whether electronically or manually generated) including without limitation, reports, test plans, and survey results, graphics, and technical tables, originally prepared in the performance of this Agreement, are the property of the City and will not be used or released by Contractor or any other person except with prior written permission by the City. S.30 USE OF NAME. Contractor will not use the name of the City of Clearwater in any advertising or publicity without obtaining the prior written consent of the City. S.31 PROHIBITED ACTS. Pursuant to Florida Constitution Article II Section 8, a current or former public officer or employee within the last two (2) years shall not represent another organization before the City on any matter for which the officer or employee was directly concerned and personally participated in during their service or employment or over which they had a substantial or material administrative discretion. S.32 FOB DESTINATION FREIGHT PREPAID AND ALLOWED. All deliveries will be FOB destination freight prepaid and allowed unless otherwiseagreed. S.33 RISK OF LOSS. Contractor agrees to bear all risks of loss, injury, or destruction of goods or equipment incidental to providing these services and such loss, injury, or destruction will not release Contractor from any obligation hereunder. S.34 SAFEGUARDING CITY PROPERTY. Contractor will be responsible for any damage to City real property or damage or loss of City personal property when such property is the responsibility of or in the custody of Contractor or its employees. S.35 WARRANTY OF RIGHTS. Contractor warrants it has title to, or the right to allow the City to use, the materials and services being provided and that the City may use same without suit, trouble or hindrance from Contractor or third parties. S.36 PROPRIETARY RIGHTS INDEMNIFICATION. Without limiting the foregoing, Contractor will without limitation, at its expense defend the City against all claims asserted by any person that anything provided by Contractor infringes a patent, copyright, trade secret or other intellectual property right and must, without limitation, pay the costs, damages and attorneys' fees awarded against the City in any such action, or pay any settlement of such action or claim. Each party agrees to notify the other promptly of any matters to which this provision may apply and to cooperate with each other in connection with such defense or settlement. If a preliminary or final judgment is obtained against the City's use or operation of the items provided by Contractor hereunder or any part thereof by reason of any alleged infringement, Contractor will, at its expense and without limitation, either: (a) modify the item so that it becomes non -infringing; (b) procure for the City the right to continue to use the item; (c) substitute for the infringing item other item(s) having at least equivalent capability; or (d) refund to the City an amount equal to the price paid, less reasonable usage, from the time of installation acceptance through cessation of use, which amount will be calculated on a useful life not less than five (5) years, plus any additional costs the City may incur to acquire substitute supplies or services. S.37 CONTRACT ADMINISTRATION. The contract will be administered by the Procurement Division and/or an authorized representative from the using department. All questions regarding the contract will be referred to the Procurement Division for resolution. Supplements may be written to the contract for the addition or deletion of services. S.38 FORCE MAJEURE. Failure by either party to perform its duties and obligations will be excused by unforeseeable circumstances beyond its reasonable control, including acts of nature, acts of the public enemy, riots, fire, explosion, legislation, and governmental regulation. The party whose performance is so affected will within five (5) calendar days of the unforeseeable circumstance notify the other party of all pertinent facts and identify the force majeure event. The party whose performance is so affected must also take all reasonable steps, promptly and diligently, to prevent such causes if it is feasible to do so, or to minimize or eliminate the effect thereof. The delivery or performance date will be extended for a period equal to the time lost by reason of delay, plus such additional time as may be reasonably necessary to 7 Exhibit C Standard Terms and Conditions overcome the effect of the delay, provided however, under no circumstances will delays caused by a force majeure extend beyond one hundred -twenty (120) calendar days from the scheduled delivery or completion date of a task unless agreed upon by the parties. S.39 COOPERATIVE USE OF CONTRACT. The City has entered into various cooperative purchasing agreements with other Florida government agencies, including the Tampa Bay Area Purchasing Cooperative. Under a Cooperative Purchasing Agreement, any contract may be extended for use by other municipalities, school districts and government agencies with the approval of Contractor. Any such usage by other entities must be in accordance with the statutes, codes, ordinances, charter and/or procurement rules and regulations of the respective government agency. Orders placed by other agencies and payment thereof will be the sole responsibility of that agency. The City is not responsible for any disputes arising out of transactions made by others. S.40 FUEL CHARGES AND PRICE INCREASES. No fuel surcharges will be accepted. No price increases will be accepted without proper request by Contractor and response by the City's Procurement Division. S.41 NOTICES. All notices to be given pursuant to this Agreement must be delivered to the parties at their respective addresses. Notices may be (i) personally delivered; (ii) sent via certified or registered mail, postage prepaid; (iii) sent via overnight courier; or (iv) sent via facsimile. If provided by personal delivery, receipt will be deemed effective upon delivery. If sent via certified or registered mail, receipt will be deemed effective three (3) calendar days after being deposited in the United States mail. If sent via overnight courier or facsimile, receipt will be deemed effective two (2) calendar days after the sending thereof. S.42 GOVERNING LAW, VENUE. This Agreement is governed by the laws of the State of Florida. The exclusive venue selected for any proceeding or suit in law or equity arising from or incident to this Agreement will be Pinellas County, Florida. S.43 INTEGRATION CLAUSE. This Agreement, including all attachments and exhibits hereto, supersede all prior oral or written agreements, if any, between the parties and constitutes the entire agreement between the parties with respect to the work to be performed. S.44 PROVISIONS REQUIRED BY LAW. Any provision required by law to be in this Agreement is a part of this Agreement as if fully stated in it. S.45 SEVERABIUTY. If any provision of this Agreement is declared void or unenforceable, such provision will be severed from this Agreement, which will otherwise remain in full force and effect. The parties will negotiate diligently in good faith for such amendment(s) of this Agreement as may be necessary to achieve the original intent of this Agreement, notwithstanding such invalidity or unenforceability. S.46 SURVIVING PROVISIONS. Notwithstanding any completion, termination, or other expiration of this Agreement, all provisions which, by the terms of reasonable interpretation thereof, set forth rights and obligations that extend beyond completion, termination, or other expiration of this Agreement, will survive and remain in full force and effect. Except as specifically provided in this Agreement, completion, termination, or other expiration of this Agreement will not release any party from any liability or obligation arising prior to the date of termination. 8 EXHIBIT D INSURANCE REQUIREMENTS INSURANCE REQUIREMENTS. The Vendor shall, at its own cost and expense, acquire and maintain (and cause any subcontractors, representatives, or agents to acquire and maintain) during the term with the City, sufficient insurance to adequately protect the respective interest of the parties. Coverage shall be obtained with a carrier having an AM Best Rating of A -VII or better. In addition, the City has the right to review the Vendor's deductible or self-insured retention and after a review of the Vendor's resources and financial statements, to request that it be reduced or eliminated. Specifically, the Vendor must carry the following minimum types and amounts of insurance on an occurrence basis or in the case of coverage that cannot be obtained on an occurrence basis. then coverage can be obtained on a claims -made basis with a minimum three (3) year tail following the termination or expiration of this Agreement. Commercial General Liability Insurance coverage, including but not limited to, premises operations, products/completed operations, products liability, contractual liability, advertising injury, personal injury, death, and property damage in the minimum amount of $1,000,000 (one million dollars) per occurrence and $2,000,000 (two million dollars) general aggregate. Commercial Automobile Liability Insurance coverage for any owned, non -owned, hired or borrowed automobile is required In the minimum amount of $1,000,000 (one million dollars) combined single limit. Unless waived by the State of Florida and proof of waiver is provided to the City, statutory Workers' Compensation Insurance coverage in accordance with the laws of the State of Florida, and Employer's Liability Insurance in the minimum amount of $1,000,000 (one million dollars) each employee each accident, $1,000,000 (one million dollars) each employee by disease, and $1,000,000 (one million dollars) disease policy limit. Coverage should include Voluntary Compensation, Jones Act, and U.S. Longshoremen's and Harbor Worker's Act coverage where applicable. Coverage must be applicable to employees, contractors, subcontractors, and volunteers, if any. The above insurance limits may be achieved by a combination of primary and umbrella/excess liability policies. Other Insurance Provisions, Prior to the execution of this Agreement, and then annually upon the anniversary date(s) of the insurance policy's renewal date(s) for as long as this Agreement remains in effect, the Vendor will furnish the City with a Certificate of Insurance(s) (using appropriate ACORD certificate, SIGNED by the Issuer, and with applicable endorsements) evidencing all of the coverage set forth above and naming the City as an "Additional Insured" on the Commercial General Liability Insurance and the Commercial Automobile Liability Insurance. The address where such certificates shall be sent or delivered is as folows: City of Clearwater Attn: Procurement Division, ITN #29-23 P.O. Box 4748 Clearwater, FL 33758-4748 EXHIBIT D INSURANCE REQUIREMENTS a. Vendor shall provide thirty (30) days written notice of any cancellation, non- renewal, termination, material change or reduction in coverage. b. Vendor's insurance as outlined above shall be primary and non-contributory coverage for Vendor's negligence. c. Vendor reserves the right to appoint legal counsel to provide for the Vendor's defense, for any and all claims that may arise related to Agreement, work performed under this Agreement, or to Vendor's design, equipment, or service. Vendor agrees that the City shall not be liable to reimburse Vendor for any legal fees or costs as a result of Vendor providing its defense as contemplated herein. The stipulated limits of coverage above shall not be construed as a limitation of arq potential liability to the City. and City's failure to request evidence of this insurance shall not be construed as a waiver of Vendor's (or any contractors'. subcontractors', representatives'. or agents') obligation to provide the insurance coverage specified.