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HomeMy WebLinkAboutContract 31838 CITY SECRETARY CONTRACT No. STATE OF TEXAS § COUNTIES OF TARRANT, § DENTON AND WISE § CONTRACT FOR TRANSPORTATION SERVICES FROM CITY CONVENIENCE CENTERS AND SPECIAL EVENTS This Contract is entered into by the City of Fort Worth, Texas, a municipal corporation situated in Tarrant, Denton and Wise Counties, Texas, acting herein by and through Libby Watson, its duly authorized Assistant City Manager, hereinafter called "City", and Allied Waste Services, .Inc., d/b/a Trinity Waste Services, a Delaware cooration, acting herein by and through �5( edl ' I , its duly authorized 1)i S}i-Li 176 n U , hereinafter called "Contractor." THIS CONTRACT shall be for the transportation of roll-off drop boxes and other containers containing Waste and Recyclables from City Convenience Centers, Special Events and other places as designated by the Director. 1. DEFINITIONS In this Contract, the following words and phrases shall be defined as follows; Affiliate shall mean any parent, subsidiary, or any other entity controlling, controlled by, or under common control, of Allied Waste Services, Inc., d/b/a Trinity Waste Services. Applicable Law shall mean any statute, law, constitution, charter, ordinance, resolution, judgment, order, decree, rule, regulation, directive, interpretation, standard or similarly binding authority, which in any case, shall be enacted, adopted, promulgated, issued or enforced that relates to or affects the City, the Contractor, or the performance by a party of its obligations hereunder. Bulky Items shall mean indoor/outdoor furniture, untreated lumber, construction materials, mattresses and box springs, carpet, swing sets, plastic swimming pools, large toys, bicycles, fish aquariums, large household appliances, and other similar items. City shall mean the City of Fort Worth, Texas. Commission shall mean the Texas Commission of Environmental Quality(TCEQ), formerly known as the Texas Natural Resource Conservation Commission (TNRCC). DALLAS 1462727v5 V � u� :u:5 L-1 Conflict of Interest shall mean any direct or indirect interest, financial or otherwise, or engagement in a transaction, or obligation of any nature that is in substantial conflict with the proper discharge of Contractor's contractual duties and obligations under this Agreement. The parties recognize that Contractor is engaged in the businesses of collection, hauling, and disposal of wastes and the ownership and operation of landfills, and that none of such activities conducted for other cities or other local governments, commercial or private concerns, shall in and of themselves constitute a conflict of interest. Construction and Demolition Waste (C & D) shall mean waste resulting from construction or demolition projects; includes all materials that are directly or indirectly the by-products of construction work or that result from demolition of buildings and other structures, including, but not limited to, bricks, concrete, other masonry materials, paper, cartons, gypsum board, wood, excelsior, rubber, and plastics. Contract shall mean this contract document and all Attachments to this document. C0 Contract Year for the purposes of calculating the Cost Adjustment Method to the Contract shall mean October through September of each year, except that the first Contract Year shall be the partial year April 1, 2004 through September 30, 2004. Contractor shall mean Allied Waste Services, Inc., d/b/a Trinity Waste Services. Convenience Center shall mean a facility established by the City for the convenience and use of residents for the collection of household garbage and rubbish, yard trimmings, Brush and Bulky Waste, and Recyclables in the manner and of the type as determined by the Director. Day shall mean calendar day, unless otherwise specified. DEM shall mean the City's Department of Environmental Management. Director shall mean the Director of DEM or his/her designated representative. Disposal shall mean dumping or depositing of Solid Waste into or onto a Disposal Facility. Disposal Facility shall mean a sanitary landfill or other Solid Waste Disposal Facility permitted by TCEQ and/or other applicable regulatory agency with jurisdiction and utilized for the receipt or final disposition of Solid Waste generated within the City. Garbage shall mean Solid Waste consisting of putrescible animal and vegetable waste materials resulting from the handling, preparation, cooking, and consumption of food, including waste materials from markets, storage facilities, handling, and sale of produce and other food products. Governmental Body shall mean, as appropriate, any one or several of any court of competent jurisdiction, the United States of America, the State of Texas and/or any appropriate government jurisdiction over activities relating to the services provided for under the terms of this Contract; or any agency, authority, regulatory body or subdivision of any of the above as may have jurisdiction over or power and authority to regulate the City, the Contractor, or the transportation of Solid Waste and Recyclables. DALLAS 1462727v5 2 �Y Government Approvals shall mean all licenses, permits and approvals required from any Governmental Body for performance of the Contractor's obligations under this Contract. GVW shall mean gross vehicle weight. Hazardous Waste shall mean any Solid Waste identified or listed as a Hazardous Waste by the administrator of the United States Environmental Protection Agency (U.S.E.P.A) pursuant to the federal Solid Waste Disposal Act, as amended by the Resource Conservation and Recovery Act of 1976, 42 USC, §6901 et seq, as amended. Hour (or hour or hourly), when used in any of Sections 2.B., 5, 6, or 23.C. hereof, shall mean the time between the beginning time of an operation and the end including any wait time. As an example for transportation of one container, the time would begin when the truck passes the gate going into the Convenience Center and would end when the truck finally leaves the Center, having hauled the container to the disposal site and returned it to the Center. Hours charged for this operation would be the elapsed time between beginning and end. Medical Waste shall mean waste generated by health-care-related facilities and associated with healthcare activities, not including Garbage or Rubbish generated from offices, kitchens, or other non-health-care activities. The term includes special waste from health care-related facilities which is comprised of animal waste, bulk blood and blood products, microbiological waste, pathological waste, and sharps as those terms are defined in 25 TAC §1.132 (Definition, Treatment, and Disposition of Special Waste from Health-Care Related Facilities) or any successor. The term does not include Medical Waste produced on farmland and ranchland as defined in Agriculture Code, §252.001(6) (Definitions--Farmland or ranchland) or any successor, nor does the term include artificial, nonhuman materials removed from a patient and/or requested by a patient, including but not limited to orthopedic devices and implants. MWBE shall mean a minority or women's business enterprise. Performance Bond shall mean a corporate surety bond that guarantees compensation to the City in the event that the City must assume the obligations or duties of the Contractor in order to continue the services defined in the Contract. Person shall mean any individual, partnership, corporation, limited liability company, association, joint stock company, trust, estate, governmental entity, or any other legal entity; or their legal representatives, agents, or assigns. This definition includes all Governmental Bodies. Processing Facility shall mean a facility whose activities include, but are not limited to, the separation and preparation of Solid Waste for reuse or Disposal or separation and preparation of Recyclables or Yard Waste to produce a marketable commodity or product(s) for beneficial use. Proposal shall mean Contractor's Response to Proposals No. 02-0087 and shall be attached to this Contract in the City Secretary's Office. Recyclables shall mean material that has been recovered or diverted from the non-hazardous Solid Waste stream for purposes of reuse, recycling, or reclamation, a substantial portion of 3 DALLAS 14627270 which is consistently used in the manufacture of products, which may otherwise be produced using raw or virgin materials. Recyclables are not Solid Waste. However, Recyclables may become Solid Waste at such time, if any, as it is abandoned or disposed of rather than recycled, whereupon it will be Solid Waste with respect only to the party actually abandoning or disposing of the material. Refuse shall mean nonputrescible Solid Waste (excluding ashes), consisting of both combustible and noncombustible waste materials. Combustible Refuse includes paper, rags, cartons, wood, excelsior, furniture, rubber, plastics, yard trimmings, leaves, or similar materials; noncombustible Refuse includes glass, crockery, tin cans, aluminum cans, metal furniture, and similar materials that will not burn at ordinary incinerator temperatures (1,600 degrees Fahrenheit to 1,800 degrees Fahrenheit). Rubbish shall mean the same as Refuse. Solid Waste means mean any Garbage, Rubbish, and other discarded material. The term does not include: (i) solid or dissolved material in domestic sewage, or solid or dissolved material in irrigation return flows, or industrial discharges subject to regulation by permit issued under the Water Code, Chapter 26; (ii) soil, dirt, rock, sand, and other natural or man-made inert solid materials used to fill land if the object of the fill is to make the land suitable for the construction of surface improvements; (iii) waste materials that result from activities associated with the exploration, development, or production of oil or gas or geothermal resources and other substance or material regulated by the Railroad Commission of Texas under the Natural Resources Code, or(iv) any Unacceptable Waste. Southeast Landfill shall mean the City-owned landfill accepting municipal Solid Waste, located at 6900 Dick Price Road, Fort Worth, Texas. Special Event Material shall mean material collected from City-sponsored events such as "Great American Cleanup", "Library Book Recycling Program", and "Phone Book Redirect Program", which produce waste and/or Recyclables, and shall include City-sponsored events at the City's convention center (but not events sponsored by any person, entity or association other than the City at the convention center) and only for which the Director of Environmental Management has direct control and authority to provide transportation services. Storm Event shall mean a weather related event, including, but not limited to, flood, thunderstorm, wind storm, ice storm and lightning storm, affecting the City and causing generation of greater than normal brush or Bulky waste, taking into account the time of year and season, but not including weather which (i) is reasonably anticipated for the geographic area, and (ii) does not significantly increase volumes of brush and/or Bulky Items, taking into account the time of year. Ton shall mean a short ton of 2000 pounds. Treated Wood shall mean wood that has been treated or preserved with chromated copper arsenate(CCA), pentachlorophenol, or other chemicals which have been classified as known human carcinogens by the U. S. E. P. A. 4 DALLAS 14627270 Type IV Waste shall mean brush such as tree and shrub limbs and trimmings, C&D, and/or Refuse that are free of putrescible waste and free of household wastes. Unacceptable Waste shall mean any and all waste, including but not limited to Hazardous Waste, special waste, Medical Waste and asbestos, the acceptance and handling of which by Contractor would cause a violation of any permit condition, legal requirement, regulatory requirement or Applicable Laws, and/or cause substantial damage to Contractor's equipment or facilities, or present a substantial danger to the health or safety of the public or Contractor's representatives, agents or employees. Uncontrollable Circumstances includes "unanticipated events," and shall mean any act, event or condition (excluding those which result from the willful or negligent action or inaction of a party) occurring during the term that has, or may reasonably be expected to have, a material and adverse effect on a right or an obligation of either or both parties to this Contract, if such act, event or condition is beyond the reasonable control of the party relying thereon as justification for not performing under this Contract. Uncontrollable Circumstances shall include, but are not limited to, the following: an act of God, landslide, lightning, earthquake, fire, explosion, flood, ice storm, nuclear radiation, acts of a public enemy or terrorist, war, blockade, insurrection, riot or civil disturbance or any similar occurrence, or a condemnation or other taking by or on behalf of any public, quasi-public or private entity, but not including reasonably anticipated weather conditions for the geographic area of the City; Uncontrollable Circumstances shall not include: (1) insolvency or inability to pay any amount; (2) inability to obtain any letter of credit, surety bond, payment or performance bond or any other security required by this Contract; (3) a public or private labor dispute relating to the transportation or disposal of Waste. Vehicle shall mean every device in, upon, or by which Contractor uses to transport materials and/or waste or drawn upon a public or private highway or road to perform the services and related services described for by this Contract. Violation shall mean any final determination by a Governmental Body that the Contractor is in violation of or not in compliance with any portion of its Governmental Approvals or Applicable Law. Yard Waste shall mean leaves, yard trimmings, yard and garden debris, Christmas trees, and brush, including clean woody vegetative material not greater than four inches in diameter, which results from landscaping maintenance and land-clearing operations. The term does not include stumps, roots, or shrubs with intact root balls, and specifically excludes all Treated Wood. 2. SCOPE OF CONTRACTOR'S SERVICES 5 VSO DALLAS 14627270 tl ;• ;;6j� 211 b vA: In accordance with industry standards: A. Contractor shall transport all roll-off containers from Special Events and the City's Convenience Centers to the City's designated Disposal Facility and/or Processing Facilities. Contractor shall initiate all hauls within two (2) hours after a request by the City has been made UNLESS doing so would make the Contractor in violation of any Applicable Law, including but not limited to curfews on garbage operations or UNLESS the disposal facility designated by City will no longer accept the material at the expected arrival time of the load. Upon such instance, the load will be picked up no later than thirty (30) minutes after the start of the Designated Facility's operating hours on the next working day. B. Delivery. All containers transported under the terms of this Contract shall be delivered to locations the City shall designate. Receptacles containing any rejected load or partially rejected load shall be transported to another appropriate destination designated by the City. The City shall pay normal hourly charges for any additional deliveries, and any special disposal costs or fees for deliveries requiring re-routing or the use of detours incurred due to the City's direction. 3. SCOPE OF CITY SERVICES In addition to the City's obligations contained in Section 5 and elsewhere in this Contract, the City agrees to perform the following services: A. Designate a City representative to provide timely direction to the Contractor and render the City decisions; B. Notify the Contractor when transportation services are required; C. Timely review and respond, if necessary, to reports submitted by Contractor; D. Make timely payments upon review and approval of invoices submitted by the Contractor; E Pay disposal site directly for all disposal costs and expenses associated with all disposals on behalf of the City pursuant to the terms of this Contract; F Monitor the personnel, equipment, and Vehicle standards as described in the terms of this Contract; and G Manage the City's call center and inform Contractor of complaints and work with the Contractor to resolve complaints regarding transportation of containers at the Convenience Centers and all Special Events. 6 DALLAS 14627270 4. TERM The term of this Contract shall begin on the date the last party has fully executed the Contract and shall end March 31, 2013 unless otherwise terminated as provided herein. City shall have the right to extend this Contract for up to three (3) consecutive ten (10) year renewal terms, provided City and Contractor agree to extend this Contract in writing at least thirty (30) Days prior to the end of the initial term or the then current renewal term; such agreement shall be in writing and shall (i) renew this Contract on the same terms, conditions and fees as set forth herein; or (ii) amend this Contract to revise the terms, conditions and fees as set forth herein. 5. REPORTS AND PAYMENT For and in consideration of the services performed in accordance with this Contract, City agrees to pay Contractor as follows: A. Within fifteen (15) Days of the end of each month during which services are provided by the Contractor, Contractor shall submit to the Director (i) a monthly report which complies with the requirements of Article 12 and (ii) and invoice in a form acceptable to the City, detailing monthly total activities, to include the services provided by Contractor under this Contract. The following information shall be included on the monthly invoice: 1. quantities and number of loads of waste collected from the City's Convenience Centers, if any; 2. quantities of Special Event Material and/or disaster debris and waste collected, if any, and/or Recyclables, if any, requested by City; 3. the date of delivery; 4. the ticket number for each load received; 5. MWBE participation information and status; and 6. monthly payments due Contractor. The monthly report shall also include the work orders describing the time it took Contractor to complete its services at each Special Event and Convenience Center(s) and the disposal tickets identifying the Disposal Facility and/or Processing Facility and the weight of the waste and/or Recyclables B. The monthly payment shall be the sum of. 1. The number of hours for the transportation of waste from the City's Convenience Centers, times the applicable hourly rate; plus 2. The number of hours for the transportation of Special Event Material, times the applicable hourly rate; plus 3. Disaster debris and any other special services requested by City times the applicable rate. DALLAS 1462727v5 C. Payment shall be made to the Contractor within thirty(30) Days from receipt by the City of the Contractor's final monthly invoice. Prices for the first year of the term of this Contract shall be: 1. $70.31 per hour for pick-up and hauling any and all containers from City Convenience Centers. a. Contractor shall use an appropriate-design truck and driver for the pick-up and hauling of City containers from the Convenience Centers to the designated Disposal and/or Processing Facilities. b. Contractor will perform all hauls with its roll-off equipment, which must be capable of safely hauling the roll-off drop boxes owned by the City at the City's Convenience Centers. C. Periodically, the swap out of roll-off boxes may be required. If Contractor's trucks are on site when this is required, the charge to the City will be 15 minutes per box; if a swap needs to be made, and the Contractor does not have a truck on site, the charge to the City will be one hour for the first box; however, if the actual time will clearly exceed the estimate represented in these charges due to site-specific problems or circumstances, Contractor may call that fact to the attention of the City and obtain verbal agreement for a higher charge. d. Contractor and City agree to periodically review the performance parameters under this Contract with intention of determining whether individual pricing of single hauls would be more efficient and cost- effective than the hourly rate pricing above. Haul times from each Convenience Center to each processing Facility would be agreed upon by Contractor and City to establish the charges for such hauls for each type of material from each Convenience Center; agreed-upon haul times would be based on average haul time testing and reviewed and revised annually against actual haul times. 2. $70.31 per hour for any and all containers requiring pick-up and hauling to a Disposal Facility or Processing Facility of Special Event Waste or of waste from unanticipated events at the request of the City. 3. $16.88 per day rental, including delivery charge, for supply of thirty (30)yard containers. 4. Reimbursement for any fees or expenses only as described in Section 2A, paid by Contractor, on behalf of the City, to a facility that was not paid in advance by the City for such disposal. 8 DALLAS 1462727v5 6. COST ADJUSTMENT All hourly rates and all daily rates shall be adjusted annually, beginning on the October 1, 2005 and continuing on each October 1 thereafter during the term of this Contract, in the manner as reflected in the adjustment schedule included in this Contract as Attachment A. Contractor shall submit documentation of the payment adjustment criteria to the City along with its annual request for the rate adjustment. 7. VEHICLE STANDARDS A. General Contractor shall provide a fleet of roll-off Vehicles sufficient in number and capacity to perform the work required by the Contract in accordance with its terms. The normal flow of work as required by the Contract shall not include work generated by a Storm Event. Contractor shall have available sufficient back-up Vehicles to respond to complaints and emergencies which can be reasonably anticipated. B. Specifications All Vehicles used by Contractor in providing transport of materials under the Contract shall be in good repair and designed to prevent leakage, spillage or overflow. Contractor's vehicles will also be in compliance with the City's solid waste vehicle permitting ordinances. All such Vehicles shall comply with U.S. Environmental Protection Agency noise emission regulations and other applicable noise control regulations. Contractor shall use its best efforts to ensure that gross Vehicle weight of all Vehicles, even when loaded, does not exceed Vehicle license limitations. All containers furnished by the City shall be in good repair and designed to prevent leakage, spillage and overflow. Contractor is not responsible for determining whether the loaded container and the Vehicle's combined weight (the "Combined Weight") exceed the gross Vehicle weight allowed by license, since weight scales required to make such Combined Weight determinations are not available at the applicable facility sites. Provided however, should the City inform Contractor that the Combined Weight does exceed the gross Vehicle weight allowed by license, then Contactor will take actions directed by the City to remedy the excess weight situation at the City's expense, and the City shall be responsible for off-loading and storing sufficient material so that such license limitations are not exceeded. C. Vehicle Identification Contractor's name, local telephone number, and a unique Vehicle identification number designated by Contractor for each Vehicle shall be prominently displayed on all Vehicles, in letters and numbers no less than two and one-half(2 ''/z) inches high. Contractor shall not place the City's logo on its Vehicles. D. Equipment Inventory 9 DALLAS 1462727v5 In addition to the above requested information, Contractor shall furnish the City a written inventory of all Vehicles used in providing service, and shall update the inventory annually. The inventory shall list all Vehicles by manufacturer, ID number, date of acquisition, type, and capacity. E. Cleaning and Maintenance Contractor shall maintain all of its properties, facilities and equipment used in providing service under the Contract in a safe, neat, clean and operable condition at all times. F. Vehicles Vehicles used in the transportation of materials under the Contract shall be thoroughly washed on a regular basis so as to present a clean appearance. City may inspect Vehicles at any time to determine compliance with sanitation requirements. G. Applicable Laws Contractor shall also comply with all Applicable Laws relating to Vehicles including Sections 12.5-850 through 12.5-863 regarding Privileges Agreements and Grant requirements; provided, however, any revenue generated by the Contractor for the services provided to the City under this Contract shall be excluded from the Grant of Privileges fee required by Section 12.5-856 of the City Code. 8. PERSONNEL STANDARDS A. Contractor shall furnish such qualified drivers, mechanical, supervisory, clerical and other personnel as may be necessary to provide the services required in a safe manner. All drivers shall be trained and qualified in the operation of Contractor's vehicles and must have in effect a valid Commercial Drivers License, of the appropriate class, issued by the Texas Department of Public Safety. B. Contractor shall provide operational and safety training for all of its employees who utilize or operate Vehicles or equipment for transportation of materials under the Contract. C. Contractor shall not, nor shall it permit its employees to demand or solicit, directly or indirectly, any additional compensation of gratuity from members of the public for services provided under the Contract. D. Contractor shall use commercially reasonable efforts to assure that all employees present a neat appearance and conduct themselves in a courteous manner. Contractor shall regularly train its employees in customer courtesy, shall have policies that prohibit the use of loud or profane language, and shall instruct drivers to perform the work as quietly as possible. If any employee is found not to be courteous or not to be performing services in the manner required by the Contract, Contractor shall take all appropriate corrective measures. If City has notified Contractor of a complaint related to discourteous or improper behavior, Contractor will consider reassigning the employee to 10 DALLAS 1462727v5 duties not entailing contact with the public while Contractor is pursuing its investigation and corrective action process. E. Contractor shall designate qualified employees as supervisors of field operations. Supervisors will be in the field inspecting Contractor's work and will be available by radio or phone during the Contractor's hours of operation to handle calls and complaints from the City, or to follow up on problems and inspect Contractor's operations. F. All employees of the Contractor performing work under the Contract shall be uniformed showing their association with the Contractor while operating in the field. Contractor shall provide a list of current employees, Contractors and subcontractors to City upon request. 9. SERVICE STANDARDS A. Care of City and Private Property City shall refer complaints about damage to private property to Contractor. Contractor shall pay for or repair all damage to private property caused by its employees if and to the extent such damage is determined to be through the negligence of Contractor or its employees. B. Litter Abatement Contractor shall use due care to prevent materials from being spilled or scattered during the transportation process. If any Solid Waste, Yard Waste, or Recyclable, or other materials are spilled during transportation, the Contractor shall promptly clean-up all spilled materials. C. Hours of Service Transportation of materials under the Contract may occur only between the hours of 7:00 a.m. and 6:00 p.m. or the operating hours for the City's Convenience Centers, so long as the Designated Facilities are open to accept waste during such hours. An exception may be requested from these normal hours of operations by the Contractor to the Director when special or unforeseen incidents occur. The City may request services from the Contractor, from time to time, at other hours so long as such request does not cause violation of Department of Transportation Regulations or other Applicable Laws and, only in the case of services relating to a location other than a Convenience Center, does not require Contractor to incur overtime expense. If City requests services from Contractor at a location other than a Convenience Center outside the hours of 7:00 a.m. to 6:00 p.m., then the Contractor may charge City at the regular rates under this Contract plus an overtime amount equal to 1.5 times the normal rate under the Contract. D. Noise All transport equipment operations shall be conducted as quietly as possible using commercially reasonable practices and shall conform to applicable federal, State, County and City noise level regulations. DALLAS 1462727v5 v�C,ur S VK'� ,:'ti 10. MWBE REQUIREMENTS In keeping with the City's Minority/Women Business Enterprise (MWBE) ordinance, Contractor agrees to the following: A. A minimum of twenty-five percent (25%) of the total dollar value of this Contract will be paid as compensation to certified MWBE firms, pursuant to Article X of the City Code, "Minority And Women Business Enterprises Policies And Disadvantaged Business Enterprise Policies". B. Contractor will, during the term of this Contract, provide City with monthly reports detailing its compliance with the requirements for MWBE participation, including but not limited to the activities of the MWBE and the dollar value of those services, as required by the City. City shall have a right of access to any and all books, records and documents which relate to MWBE subcontracts for the performance of services which relate to this Contract in order to audit and verify the information contained in the monthly reports. Contractor shall include in all MWBE subcontracts a similar provision allowing City access to subcontractor's books, records and documents relating to services which related to this Contract for these purposes. 11. CONTINGENCY PLAN Within ninety(90) Days after this Contract has been executed by both parties, Contractor shall submit to the Director for approval a contingency plan showing Contractor's arrangements to provide Vehicles and personnel and to maintain uninterrupted service during mechanical breakdowns and in case of natural disaster, emergency downtime, outage, equipment failure or breakdown, or labor dispute. 12. REPORTING REQUIREMENTS Contractor shall maintain and submit to the City accurate reports, which detail activity related to the above mentioned services in a format approved by the City. These reports shall include data for all materials handled from its services to the City. A. Monthly reports shall include the submitted by Contractor to the Director along with the monthly invoices. B. Annual reports shall report all the above data, following the same format as the monthly report and shall include MWBE participation information and status. C. Records shall be kept on a daily, weekly, cumulative monthly, and cumulative annual basis, and shall be available to the City upon request. 12 DALLAS 14627270 13. EVENTS OF DEFAULT BY CONTRACTOR A. The following shall constitute Events of Default (herein so called) on the part of the Contractor except to the extent caused by the occurrence of an Uncontrollable Circumstance or City's fault unless otherwise specified herein: 1. Failure by the Contractor to perform any Material Obligation of Contractor under the terms of this Contract, and (i) written notice thereof has been provided by the Director specifying such failure and requesting that such condition be remedied, and (ii) Contractor fails to cure the default within fifteen (15) days after receiving notice from the Director (provided, if such failure is of a nature that it cannot be cured within such fifteen (15) day period, Contractor shall not be in default if Contractor commences the curing of such failure within such fifteen (15) day period, and diligently pursues to completion the curing thereof); or 2. The Contractor being insolvent or bankrupt or ceasing to pay its debts as they mature or making an arrangement with or for the benefit of its creditors or consenting to or acquiescing in the appointment of a receiver trustee, or liquidator for a substantial part of its property; or a bankruptcy, winding up, reorganization, insolvency, arrangement, or similar proceeding instituted by the Contractor, under the laws of any Governmental Body or against the Contractor, if the Contractor does not take the appropriate action to dismiss said proceedings; which proceedings have not been dismissed within ninety (90) Days of the institution of such proceedings; or any action or answer by the Contractor approving, consenting to, or acquiescing in, any such proceedings; or the event of any distress, execution, or attachment upon the property of the Contractor which shall substantially interfere with its performance hereunder; or 3. The following acts or omissions by the Contractor shall constitute failure to perform a Material Obligation of Contractor under this Contract: a. Failure of Contractor to commence work operations within the time specified in the Contract. b. Failure of Contractor to provide and maintain sufficient labor, Vehicles and equipment or licenses, permits and necessary approvals from City or a third party to properly and legally execute the working operations. c. Evidence that Contractor has abandoned the work. d. Failure on the part of Contractor to maintain the required insurance as determined herein, Performance Bonds and Vehicle requirement as specified in Section 7. 13 DALLAS 1462727v5 e. Assignment by Contractor of the Contract in violation of Article 27 of the Contract. f. Failure to supply complete and accurate information as required in this Contract. g. Failure to indemnify the City as required herein. h. Falsifying records or reports to the City, State or Federal governments. i. Failure to maintain required level of MWBE participation. j. Failure to comply with Applicable Law that materially affects Contractor's ability to perform this Contract as reasonably determined by the City Council. B. City shall, as soon as practical, notify Contractor of any failure on the Contractor's part to comply with the terms of this Contract. After receipt of notice from the City of an Event of Default set forth in Section 13.A above, Contractor shall acknowledge receipt of such notice by telephone, facsimile, or email within forty-eight (48) hours. Contractor shall provide the City with verbal notice of what corrective action has or shall be taken by the Contractor and shall follow up with written notice describing the same along with any additional relevant information, within five (5) calendar days. Failure to provide acknowledgement of receipt of notice, or plan of corrective action, within the above mentioned time period(s) shall constitute an Event of Default by the Contractor. C. Contractor shall be excused for the failure to perform its obligations under this Agreement if such failure results from the occurrence of an Uncontrollable Circumstance. Contractor shall seek diligently and in good faith to perform its obligations, notwithstanding the occurrence of an Uncontrollable Circumstance, to mitigate the adverse effects of an Uncontrollable Circumstance, and to overcome an Uncontrollable Circumstance as soon as practicable. Contractor shall provide written notice of an Uncontrollable Circumstance to City within a reasonable time, but not greater than twenty-four (24) hours, of Contractor's knowledge of such Uncontrollable Circumstance. Such notice shall, at a minimum, set forth the following (to the extent then known or available, or if not, as soon as practicable thereafter, a separate notice shall provide such information not provided in the first notice): (a) description of the Uncontrollable Circumstance that has occurred; and (b) the effect, if any, or such Uncontrollable Circumstance on Contractor's performance or other obligations under this Agreement. After the resolution of an Uncontrollable Circumstance and the restoration of services hereunder, Contractor shall provide written notice of a reinstatement of services. 14. EVENTS OF DEFAULT BY CITY A. The following shall constitute Events of Default (herein so called) on the part of the City, except to the extent excused by the occurrence of an Uncontrollable Circumstance or Contractor's fault unless otherwise specified herein: 14 DALLAS 14627270 I. Failure by City to perform any Material Obligation of City under the terms of this Contract, and (i) written notice thereof has been provided by Contractor specifying such failure and requesting that such condition be remedied, and (ii) City fails to cure the default within fifteen (15) days after receiving notice from Contractor (provided, if such failure is of a nature that it cannot be cured within such fifteen (15) day period, City shall not be in default if City commences the curing of such failure within such fifteen (15) day period, and diligently pursues to completion the curing thereof); or 2. City being insolvent or bankrupt or ceasing to pay its debts as they mature or making an arrangement with or for the benefit of its creditors or consenting to or acquiescing in the appointment of a receiver, trustee or liquidator for a substantial part of its property; or a bankruptcy, winding up, reorganization, insolvency, arrangement or similar proceeding instituted by City under the laws of any jurisdiction or against City, if City does not take appropriate action to dismiss said proceedings, which proceedings have not been dismissed within ninety(90) Days of the institution of such proceedings; or any action or answer by City, approving of, consenting to, or acquiescing in, any such proceedings; or the levy of any distress, execution or attachment upon the property of City, which shall substantially interfere with its performance hereunder. B. Contractor shall, as soon as practical, notify City of any failure on the City's part to comply with the terms of this Contract. After receipt of notice from the Contractor of an Event of Default set forth in Section 14.A above, City shall acknowledge receipt of such notice by telephone, facsimile, or email within forty-eight (48) hours. City shall provide the Contractor with verbal notice of what corrective action has or shall be taken by the City and shall follow up with written notice describing the same along with any additional relevant information, within five (5) calendar days. Failure to provide acknowledgement of receipt of notice, or plan of corrective action, within the above mentioned time period(s) shall constitute an Event of Default by the City. C. City shall be excused for the failure to perform its obligations under this Contract if such failure results from the occurrence of an Uncontrollable Circumstance. City shall seek diligently and in good faith to perform its obligations, notwithstanding the occurrence of an Uncontrollable Circumstance, to mitigate the adverse effects of an Uncontrollable Circumstance, and to overcome an Uncontrollable Circumstance as soon as practicable. City shall provide written notice of an Uncontrollable Circumstance to Contractor within a reasonable time, but not greater than twenty-four (24) hours, of City's knowledge of such Uncontrollable Circumstance. Such notice shall, at a minimum, set forth the following (to the extent then known or available, or if not, as soon as practicable thereafter, a separate notice shall provide such information not provided in the first notice): (a) description of the Uncontrollable Circumstance that has occurred; and (b) the effect, if any, or such Uncontrollable Circumstance on City's performance or other obligations under this Contract. After the resolution of an Uncontrollable Circumstance and the restoration of services hereunder, City shall provide written notice of a 15 DALLAS 14627270 reinstatement of services. The City shall not be excused for payment of monies due to the Contractor for services rendered. 15. PAYMENT DISPUTE If a party disputes any amount that is payable under this Contract, the party disputing shall provide written notice to the other party of such disputed amount, together with sufficient information to enable the other party to understand the nature of the dispute. Such notice shall be delivered by the party disputing such amount no later than the date that such amount is due and payable (or, if later, within ten (10) days after the date on which the disputing party has information necessary to determine that it has a dispute) and (as applicable) the party disputing such amount shall make payment of the undisputed amount on the due date thereof. If the amount that is in dispute is ultimately determined to be due and payable, such disputed amount, together with interest thereon (at the lesser of (i)the maximum rate of interest permitted by applicable laws or(ii) 1% over the prime rate of interest published in The Wall Street Journal, or such other daily financial publication as shall be mutually agreeable to the parties if The Wall Street Journal ceases to be published or ceases to publish such information) shall be paid by the party disputing such amount within ten (10)business days. 16. ALTERNATIVE DISPUTE RESOLUTION If a dispute arises out of or relates to this Contract, or the breach thereof, and if the dispute cannot be settled through negotiation, the parties agree first to try in good faith to settle the dispute by mediation before resorting to arbitration. The party registering the dispute shall provide the other party with a list of three certified mediators and the non-claiming party shall choose a mediator within 7 days of receiving notice of the dispute. In the event the dispute is not resolved in mediation, any controversy or claim arising out of or relating to this contract, or the breach thereof, shall be settled by binding arbitration conducted in the Forth Worth Metropolitan Area in Texas, administered by the American Arbitration Association in accordance with its Commercial Arbitration Rules, and judgment on the award rendered by the arbitrators may be entered in any court having jurisdiction thereof Notwithstanding this provision, either party may obtain a temporary injunction to enforce the remedies granted to it under this Contract or preserve its rights until such rights can be pursued through arbitration. 17. TERMINATION A. All work and services of this Contract may be suspended on written order of the Director of Environmental Management or the City Manager, or the Contract may be declared terminated by the City Council, for any Event of Default by Contractor with thirty (30) days written notice to the Contractor. All work and service of this Contract may be suspended with thirty (30) Days written notice by Contractor to the City, or the Contract may be declared terminated with thirty (30) days written notice to the City by Contractor, for any Event of Default by the City. 16 DALLAS 14627270 •�� qn B. A copy of any suspension order or action of the City Council shall be served on Contractor's surety. When work is suspended or the Contract is terminated by the City pursuant to Section 17.A., Contractor shall discontinue the work or such part thereof as the City shall designate, whereupon the surety may, at its option, assume the Contract or that portion thereof which the City has ordered Contractor to discontinue pursuant to Section 17.A., and may perform the same or may, with the written consent of the City (which shall not be unreasonably withheld or delayed), sublet the work or that portion of the work as taken over; provided, however, that the surety shall exercise its option and begin performance of the work, if at all, within five (5) Days after the written notice to discontinue the work has been served upon Contractor and upon the surety or its authorized agent. The surety, in such event, shall assume Contractor's place in all respects and shall be bound by all the terms and conditions of this Contract. Surety shall be paid by the City for all work performed by it in accordance with the terms of the Contract. C. If this Contract is terminated due to an Event of Default by the Contractor as defined in Section 13 and the surety does not assume the Contract or that portion of it that is discontinued, the City may procure services called for by the Contract from other sources and shall hold the Contractor and surety responsible for any costs to the City to procure a contract for the services of a new contractor and for the costs to the City for providing the services in the interim period between the Event of Default and the procurement of a new contract. The City shall draw on the Performance Bond as necessary for such costs related to entering into an agreement with a new contractor and costs of providing interim services. 18. INDEMNIFICATION A. CONTRACTOR SHALL RELEASE, INDEMNIFY, REIMBURSE, DEFEND, AND HOLD HARMLESS, CITY, ITS OFFICERS, AGENTS, SERVANTS AND EMPLOYEES, FROM AND AGAINST ANY AND ALL CLAIMS OR SUITS FOR PROPERTY DAMAGE OR LOSS AND/OR PERSONAL INJURY, INCLUDING DEATH, TO ANY AND ALL PERSONS, ARISING OUT OF THE WORK AND SERVICES TO BE PERFORMED HEREUNDER BY CONTRACTOR, ITS OFFICERS, AGENTS, EMPLOYEES, CONTRACTORS, SUBCONTRACTORS, LICENSEES, OR INVITEES, INCLUDING DAMAGES, LOSS, INJURY OR DEATH, TO THE EXTENT (AND ONLY TO THE EXTENT) CAUSED BY ANY SOLE ERROR, OMISSION, DEFECT, OR DEFICIENCY, INCLUDING SOLE NEGLIGENCE, OF CONTRACTOR. B. CITY SHALL RELEASE CONTRACTOR, ITS OFFICERS, AGENTS, SERVANTS AND EMPLOYEES, FROM AND AGAINST ANY AND ALL CLAIMS OR SUITS FOR PROPERTY DAMAGE OR LOSS AND/OR PERSONAL INJURY, INCLUDING DEATH, TO ANY AND ALL PERSONS, ARISING OUT OF THE SOLE ACTIONS OR FAILURES TO ACT OF CITY, ITS OFFICERS, AGENTS, EMPLOYEES, CONTRACTORS, 17 DALLAS 1462727v5 SUBCONTRACTORS, LICENSEES, OR INVITEES, INCLUDING DAMAGES, LOSS, INJURY OR DEATH, TO THE EXTENT (AND ONLY TO THE EXTENT) CAUSED BY ANY SOLE ERROR, OMISSION, DEFECT, OR DEFICIENCY, INCLUDING SOLE NEGLIGENCE, OF CITY. C. UPON LEARNING OF A CLAIM, LAWSUIT, OR OTHER LIABILITY WHICH CONTRACTOR IS REQUIRED HEREUNDER TO INDEMNIFY, THE CITY SHALL PROVIDE CONTRACTOR WITH REASONABLY TIMELY NOTICE OF SAME. D. THE OBLIGATIONS OF THE CONTRACTOR UNDER THIS SECTION SHALL SURVIVE THE EXPIRATION OF THIS CONTRACT AND THE DISCHARGE OF ALL OTHER OBLIGATIONS OWED BY THE PARTIES TO EACH OTHER HEREUNDER. E. IN ALL OF ITS CONTRACTS WITH SUBCONTRACTORS FOR THE PERFORMANCE OF ANY WORK UNDER THIS CONTRACT, CONTRACTOR SHALL REQUIRE THE SUBCONTRACTORS TO INDEMNIFY THE CITY IN A MANNER CONSISTENT WITH THIS SECTION. 19. INSURANCE Contractor shall not commence work under this Contract until it has obtained all the insurance required under the Contract, and such insurance has been approved by the City. Contractor shall keep the required insurance in force throughout the term of this Contract. A. WORKERS' COMPENSATION INSURANCE: Contractor shall maintain, during the term of this Contract, Workers' Compensation Insurance at statutory limits on all of its employees to be engaged in work under this Contract, and for all subcontractors. Employer's Liability (EL) Insurance shall also be maintained, at minimum limits as follows: $500,000 each accident/$500,000 disease each employee/$500,000 disease policy limit. B. GENERAL LIABILITY INSURANCE (CGL): Contractor shall procure and shall maintain during the term of this Contract a Commercial General Liability Insurance Policy at a minimum limits as Two Million Dollars ($2,000,000) per occurrence with an aggregate of Five Million ($5,000,000) Dollars combined single limit, including property damage and personal injury coverage, during effective dates of the Contract, or any renewal thereof, in order to protect and save the City harmless against any and all claims for damage to person, persons, or property arising from the services as described in this Contract. Contractor shall also provide excess Commercial General Liability in the amount of Ten Million Dollars ($10,000,000). C. AUTOMOBILE INSURANCE: Contractor shall procure and maintain during the term of this Contract Comprehensive Automobile Liability Insurance covering all iii' 18 DALLAS 14627270 � L YUP ':'Ju1iUl11 �' " Vehicles involved with Contractor's operations under this Contract. The minimum limits of liability coverage shall be in the amount of Two Million Dollars ($2,000,000) per occurrence combined single limit, during the effective dates of Contract and any renewal period. The named insured and employees of Contractor shall be covered under this policy. The City of Fort Worth shall be named an Additional insured on Endorsement TE 9901 or equivalent, as its interests may appear. D. ENVIRONMENTAL IMPAIRMENT LIABILITY (EIL) AND/OR POLLUTION LIABILITY - $10,000,000 per occurrence. EIL coverage(s) must be included in policies listed in items above; or, such insurance shall be provided under separate policies. Liability for damage occurring while loading, unloading and transporting materials collected under the Contract shall be included under the Automobile Liability insurance or other policy(s). NOTE: BETWEEN A AND D ABOVE, ANY POLLUTION EXPOSURE, INCLUDING ENVIRONMENTAL IMPAIRMENT LIABILITY, ASSOCIATED WITH THE SERVICES AND OPERATIONS PERFORMED UNDER THIS CONTRACT SHALL BE COVERED; IN ADDITION TO SUDDEN AND ACCIDENTAL CONTAMINATION AND/OR POLLUTION LIABILITY COVERAGE, THERE MUST BE NON-SUDDEN AND NON-ACCIDENTAL CONTAMINATION AND/OR LIABILITY FOR GRADUAL EMISSIONS AND CLEAN-UP COSTS. The following shall pertain to all applicable policies of insurance (A. through D.) listed above: 1. Additional Insured Clause: "The City of Fort Worth, its officers, agents, employees, and representatives are added as additional insureds as respects operations and activities of, or on behalf of the named insured, performed under Contract with the City of Fort Worth." An equivalent clause may be acceptable in the discretion of the City. This additional insured clause will not be required on Worker's Compensation Insurance (Section 19.A.). 2. Subcontractors shall be covered under the Contractor's insurance policies or they shall provide their own insurance coverage; and, in the latter case, documentation of coverage shall be submitted to the Contractor prior to the commencement of work and the Contractor shall deliver such to the City. 3. Prior to commencing work under this Contract, the Contractor shall deliver to the City of Fort Worth insurance certificate(s) documenting the insurance required and terms and clauses required. 4. Each insurance policy required by this Contract shall contain the following clauses: "This insurance shall not be canceled, limited in scope or coverage or non-renewed until after thirty (30) Days prior written notice has been given to the Director of Environmental Management, City of Fort Worth, 1000 Throckmorton, Fort Worth, Texas 76102." Note: Written notice can be by Contractor or insurance company. 19 DALLAS 1462727v5 5. The insurers for all policies must be approved to do business in the State of Texas and be currently rated in terms of financial strength and solvency to the satisfaction of the Risk Management for the City of Fort Worth. 6. The deductible or self-insured retention (SIR) affecting the coverage required shall be acceptable to the Risk Manager of the City of Fort Worth, and in lieu of traditional insurance, alternative coverage maintained through insurance pools or risk relations groups must also be approved. (STANDARD LANGUAGE REQUIRED) 20. INDEPENDENT CONTRACTOR Contractor shall perform all work and services hereunder as an independent contractor and not as an officer, agent or employee of the City. Contractor shall have exclusive control of, and the exclusive right to control, the details of the work performed hereunder and all persons performing same, and shall be solely responsible for the acts and omissions of its officers, agents, employees and subcontractors. Nothing herein shall be construed as creating a partnership or joint venture between the City and the Contractor, its officers, agents, employees and subcontractors; and the doctrine of respondeat superior shall have no application as between the City and the Contractor. 21. GUARANTY BY PARENT COMPANY OF CONTRACTOR A. It is hereby agreed and understood by Contractor and City that Allied Waste Industries, is the "parent company" of Contractor, or is otherwise serving as Guarantor for Contractor. B. Contractor agrees that, simultaneously with the entering into of this Contract by Contractor and City, its "parent company" or Guarantor shall execute the "Guaranty" set forth in Attachment B of this Contract. The Contractor agrees that the person or entity executing the Guaranty on behalf of its "parent company" or Guarantor shall be a person or entity authorized to bind legally the parent company or Guarantor to such a Guaranty. C. It is expressly agreed and understood by Contractor and City that the Guaranty to be provided and executed by Contractor's "parent company," or Guarantor as required by this Section, constitutes a part of the consideration to the City for this Contract. D. The Contractor further agrees that the failure of its "parent company" or Guarantor to execute properly the Guaranty shall constitute a breach of this Contract and shall be cause for termination hereof by City. 20 DALLAS 1462727x5 22. LICENSES, PERMITS AND FEES Contractor agrees to obtain and pay for all licenses, permits, certificates, inspections and all Governmental Approvals and other fees required by Applicable Laws or otherwise necessary to perform the services prescribed hereunder except for those costs as described in Section 213.4. 23. NACCEPTABLE�IJA USTE AND TITLE TO WASTE A. Contractor shall NOT knowingly transport, nor be required to transport for disposal, Unacceptable Waste. Contractor shall leave Unacceptable Waste at its original location and notify the Director immediately of the location and provide the Director with a description of such waste. B. Title to, and risk of loss and responsibility for, all waste or other materials under this Contract, whether Unacceptable Waste or not, shall at all times remain with the City, and shall in no event be deemed to pass to Contractor unless otherwise required by State or Federal laws, rules or regulations. City agrees that it shall not knowingly provide any Unacceptable Waste for pickup by Contractor. If any Unacceptable Waste is contained in any container for pickup by Contractor, Contractor may, at Contractor's sole option, (i) refuse to pickup and transport such Unacceptable Waste, or (ii) if Contractor does not discover such Unacceptable Waste in time to refuse pickup and transportation, Contractor may (but is not obligated to), as the City's agent, transport such Unacceptable Waste to a location fully authorized to accept such Unacceptable Waste in accordance with all Applicable Laws and charge the City all direct and indirect costs incurred due to delivery and disposal of such Unacceptable Waste. C. The City shall compensate Contractor for any commercially reasonable expenses incurred as a result of Contractor's services associated with handling Unacceptable Waste. Any additional or return trips as a result of the presence of Unacceptable Waste shall be paid to Contractor by the City at the normal hourly rate. 24. CUMULATIVE REMEDIES The rights and remedies granted in this Contract are cumulative, and the exercise of such rights shall be without prejudice to the enforcement of any other right or remedy authorized by law or this Contract. No waiver of any violation shall be deemed or construed by a court of law or an arbitrator to constitute a waive of any other violation or other breach of any of the terms. 25. REMEDIES FOR BREACH The parties agree that, except as otherwise provided in this Contract with respect to termination, in the event that either party breaches this Contract, the other party may exercise any legal rights it has under this Contract under the security instruments and under AP licab 21 DALLAS 1462727x5 Law to recover damages or to secure specific performance, and that such rights to recover damages and to secure specific performance shall ordinarily constitute adequate remedies for any such breach. Neither party shall have the right to terminate this Contract for cause except upon the occurrence of an Event of Default unless otherwise expressly stated herein. 26. DISCLOSURE OF CONFLICTS Contractor warrants to the City of Fort Worth that it has made full disclosure in writing of any existing conflicts of interest related to the services to be performed hereunder. Contractor further warrants that it will make prompt disclosure in writing of any conflicts of interest that develop subsequent to the signing of this Contract. 27. RIGHT TO AUDIT. Contractor agrees that the City shall, until the expiration of three (3) years after final payment under this Contract, have access to and the right to examine any directly pertinent books, documents, papers and records of the Contractor involving transactions relating to this Contract. Contractor agrees that the City shall have access during normal working hours to all necessary Contractor facilities and shall be provided adequate and appropriate workspace in order to conduct audits in compliance with the provisions of this section. The City shall give Contractor reasonable advance notice of intended audits and request for access. Notwithstanding any other provision of this Contract, however, in no event shall Contractor be obligated to provide to the City financial information (i)relating to the operations of the Contractor other than its services rendered under this Contract or(ii)relating to the operations of any affiliate or subsidiary of the Contractor. 28. PROHIBITION OF ASSIGNMENT Neither party hereto shall assign or transfer its interest herein without the prior written consent of the other party, and any attempted assignment or transfer of all or any part hereof without such prior written consent shall be void. City shall not unreasonably withhold consent to assignment by Contractor of this Contract to an affiliate of Contractor. 29. WAIVERS No failure by the City or by Contractor to insist upon the strict performance of any term, covenant, agreement,provision, condition or limitation of this Contract or to exercise any right or remedy hereunder shall constitute a waiver of any such breach or of such term, covenant, agreement, provision, condition or limitation. No term, covenant, agreement, provision, condition or limitation of this Contract to be kept, observed or performed by the City or by Contractor, and no breach thereof, may be waived, altered or modified except by a written 22 DALLAS 14627270 instrument executed and acknowledged by and delivered to the City and Contractor. No waiver of any breach shall affect or alter this Contract, but each and every term, covenant, agreement, provision, condition and limitation of this Contract shall continue in full force and effect with respect to any other then existing or subsequent breach thereof. 30. GOVERNMENTAL POWERS AND IMMUNITIES It is understood and agreed that,by execution of this Contract, City does not waive or surrender any of its governmental powers or immunities. Contractor acknowledges that the City is a Governmental Body and as such has certain rights, powers and duties that may affect the Contractor's rights or obligations under the Contract. The Contractor agrees that no action by the City acting in its governmental capacity shall be construed as a breach or default by the City under this Contract, nor shall any such action excuse the Contractor from performance of its obligations under this Contract; provided, however, if such action constitutes an Uncontrollable Circumstance, the Contractor may assert any rights it may have under this Contract as is permitted for any other Uncontrollable Circumstance. 31. COMPLIANCE WITH LAWS The parties and their officers, agents, employees, contractors and subcontractors, shall abide by and comply with all Applicable Laws in the performance of this Contract. 32. DISCRIMINATION PROHIBITED Contractor, in the execution, performance or attempted performance of this Contract, shall not discriminate against any person or persons on any unlawful basis. 33. SUCCESSORS AND ASSIGNS All of the terms, covenants, and agreements contained herein shall be binding upon and shall inure to the benefit of successors and assigns of the respective parties hereto. 34. NOTICES Any notices (unless otherwise specified herein), bills, invoices or reports required by this Contract shall be sufficient if sent by the parties in the United States mail, postage paid, to the address noted below: If to the City: Kim Mote, Assistant Director Solid Waste Services Division Department of Environmental Management 23 DALLAS 1462727x5 City of Fort Worth 4100 Columbus Trail Fort Worth, Texas 76133 If to the Contractor: General Manager Trinity Waste Services 6100 Elliott Reeder Rd. Ft. Worth, TX 76117 35. NO THIRD PARTY BENEFICIARY This Contract does not create, and shall not be construed as creating, any right enforceable by any person not a party to this Contract. 36. CHOICE OF LAW; VENUE This Contract shall be construed in accordance with the internal law of the State of Texas. Should any action, whether real or asserted, at law or in equity, arise out of the terms of this Contract venue for said action shall be in Tarrant County, Texas. 37. SAVINGS CLAUSE In case any one or more of the provisions contained in this Contract shall, for any reason, be held to be invalid, illegal or unenforceable in any respect, such invalidity, illegality or unenforceability shall not affect any other provision of this Contract; this Contract shall be construed as if such invalid, illegal or unenforceable provision had never been contained herein. 38. ENTIRE AGREEMENT This Contract supersedes any and all other agreements, either oral or written, between the parties hereto with respect to the subject matter hereof and contains all of the covenants and agreements between the parties with respect thereto. If there is a conflict between the terms of the Request for Proposals No. 02-0087 and the terms of this Contract, the terms of the Contract shall prevail. 39. NON-APPROPRIATION In the event that no funds or insufficient funds are collected, appropriated and budgeted for payment of amounts due hereunder by City to Contractor, City shall notify Contractor and this Contract shall terminate on the last Day of the fiscal period for which appropriations were made without penalty or expense to City of any kind whatsoever, except as to the payment of amounts due and payable for which appropriations have been made for said fiscal period. City covenants that it will provide Contractor as much notice as possible of this contingency. 24 DALLAS 14627270 Provided, however, that this Section 38 is not intended to grant to the City an independent ground for termination of this Contract separate and apart from any grounds for termination for non-appropriation or non-availability of funds which would be provided to City by reason of Tex. Const. Ann. Art. 11, Sec. 5 and 7. EXECUTED to be effective from and after the day of i 2005. CITY OF FORT WORTH, TEXAS ALLIED WASTE SERVICES, INC. d/b/a Trinity Waste Services BY: Libby Watson � IA\ Q Assistant City Mana r ITS: �A Date SignedDate Signed: h t2.- D ATTEST: WITNESS: 0 U.L.. City Secreta APPROVED AS TO FORM CORPORATE SEAL: AND LEGALITY: C"t,'16 �t' Assistant City Attorney contract authorization c Date 25 DALLAS 1462727v5 � ;� � Attachment A Cost Adjustment Method The Fees for the Hauling and Rental under this Contract with the City will be adjusted by the Contractor for the second and subsequent Contract Years of the Term of Contract. The Hauling and Rental Fees will be adjusted upward or downward annually each contract year to reflect changes in the cost of operations by the Cost Adjustment Method using indices applicable to Hauling and Rental and the methodology as set forth below. The first cost adjustment date shall be 10/01/2005, and the first Cost Adjustment shall represent changes in the indices applied herein for the previous ten months (calculated by using indices for the end of November in 2004 and the end of September in 2005). For the remaining years of the contract calculations, the cost adjustment percentage shall be calculated using the index numbers for the end of September of the current year minus the index number for the end of September from the previous year. All indices used represent either the Employment Cost Index (ECI) or components of the Producer Price Index (PPI), as published by the U.S. Department of Labor, Bureau of Labor Statistics (BLS). Since some BLS data are not finalized for several months, cost adjustments will be applied when data is released and updated if necessary when numbers used are issued as final. If BLS changes the methodology for calculating ECI or components of the PPI, which causes historical data used to calculate this cost adjustment to be restated, such changes shall only apply to future adjustments and not to adjustments already implemented. Cost adjustments shall not exceed seven percent (7%) per year and twenty-eight percent (28%) over any five (5) consecutive year period. As soon as possible after a Cost Adjustment Date, Contractor shall send to the City a comparative statement setting out the change determined through the Cost Adjustment Method and the increase or decrease in the Hauling and Rental Fees that will be charged by the Contractor. On the next billing date after the receipt and approval by the City of the comparative statement showing the calculated change to the Hauling and Rental Fees, the City shall pay to the Contractor, or the Contractor shall credit to the City, as the case may be, a lump sum equal to any increase or decrease applicable to that portion of the current period which has elapsed, and thereafter, the Hauling and Rental Fees charged by the Contractor shall be modified to reflect any change until the next Cost Adjustment Date, and a comparative statement is received and approved by the City. Any fixed pass-through or add-on surcharges or costs, such as State Fees on tonnage, host municipality benefit fees, or any other government mandated surcharge, shall not apply to the cost adjustment and will be deducted from the Hauling and Rental Fees prior to calculating any annual cost adjustment. If any index defined herein shall not be determined and published or if any index as it is constituted on the Contract Date is thereafter substantially changed, there shall be substituted for such index another index which is determined and published on a basis substantially similar to the index being replaced as shall be mutually agreed upon by the City and the Contractor. Listed below are the indices and Contractor's percentages of the indices that shall constitute the basis for adjustment of the Fees Collection under this Contract. The percent of change applied to cost adjustment shall be carried out to three (3) decimal places without rounding. Indices and Contractor's Percentage of Each Index to be Applied in the Cost Adjustment - Hauling and Rental Industrial Handling Equipment (20%) Contractor has designated 20% of Hauling and Rental Fees to be adjusted by the "Industrial Handling Equipment" component of the PPI, which is found under "Capital Equipment," series ID#WPU1144. Employment Cost Index (70%) Contractor has designated 70% of Hauling and Rental Fees to be adjusted by the ECI, a BLS index separate from PPI. ECI data for"South" in Table 7 shall be used for the adjustment calculation. Diesel Fuel (10%) Contractor has designated 10% of Hauling and Rental Fees to be adjusted by the No. 2 Diesel Fuel component in the CPI, which is found under the CPI under series ID WPU05730302. Example Following is an example of the application of these indices for the first adjustment with Contractor's percentages for cost adjustment. In the example below, a factor of 2.844% would be applied to Contractor's base Hauling and Rental Fees to determine the Hauling and Rental Fees for the next Contract Year. %Applied to November September Cost INDEX WEIGHT 30,2004 30,2005 #Change: Chan a °/ Adjustment Industrial Handling Equipment(WPU1144) 20% 146.0 152.2 6.2 4.25% 0.849% Employment Cost Index Table 7 South Region 1 70% 161.61 165.2 3.6 2.23% 1.559% Diesel Fuel(WPU05730302) 1 10%1 199.91 208.61 8.71 4.35% 0.435% Composite Index Change: 100% 2.844% V�C�� J��•r:C L;`.1:'.. Attachment B GUARANTY AGREEMENT THI7 GUARANTY AGREEMENT is made and dated as of �L (�� , between Allied Waste Systems, Inc., a corporation organized and existing under the laws of the State of Delaware (together with any permitted successors and assigns hereunder, the "Guarantor"), and the City of Fort Worth, a municipal corporation organized and existing under the laws of the State of Texas ("City"). RECITALS The City and Allied Waste Systems, Inc., a corporation organized and existing under the laws of the State of Delaware and duly authorized to do business in the State of Texas (the "Company"), have entered into a Contract for Collection Services from City Convenient Centers and Special Events to the City, dated �f i�I� , as amended from time to time (the "Contract") whereby the Company has agreed to provide Collection Services, all as more particularly described therein. Company in this Agreement shall mean Contractor as defined in the Contract. The Company is subsidiary of the Guarantor. The City will enter into the Contract only if the Guarantor guarantees the performance by the Company of all of the Company's responsibilities and obligations under the Contract as set forth in this Guaranty Agreement (the "Guaranty"). In order to induce the execution and delivery of the Contract by the City and in consideration thereof, the Guarantor agrees as follows: ARTICLE I DEFINITIONS AND INTERPRETATION SECTION 1.1. DEFINITIONS. For the purposes of this Guaranty, the term "Obligations" means the amounts payable by, and the covenants and agreements of, the Company pursuant to the terms of the Contract. Any other capitalized word or term used but not defined herein is used as defined in the Contract. SECTION 1.2. INTERPRETATION. In this Guaranty, unless the context otherwise requires: (A) References Hereto. The terms "hereby", "hereof', "herein", "hereunder" and any similar terms refer to this Guaranty, and the term "hereafter" means after, and the term "heretofore" means before, the date of execution and delivery of this Guaranty. (B) Gender and Plurality. Words of the masculine gender mean and include correlative words of the feminine and neuter genders and words importing the singular number mean and include the plural number and vice versa. E-1 (C) Persons. Words importing persons include firms, companies, associations, general partnerships, limited partnerships, trusts, business trusts, corporations and other legal entities, including public bodies, as well as individuals. (D) Headings. The table of contents and any headings preceding the text of the Articles, Sections and subsections of this Guaranty shall be solely for convenience of reference and shall not constitute a part of this Guaranty, nor shall they affect its meaning, construction or effect. (E) Entire Agreement; Authority. This Guaranty constitutes the entire agreement between the parties hereto with respect to the transactions contemplated by this Guaranty. Nothing in this Guaranty is intended to confer on any person other than the Guarantor, the City and their permitted successors and assigns hereunder any rights or remedies under or by reason of this Guaranty. (F) Counterparts. This Guaranty may be executed in any number of original counterparts. All such counterparts shall constitute but one and the same Guaranty. (G) Applicable Law. This Guaranty shall be governed by and construed in accordance with the applicable laws of the State of Texas. (H) Severability. If any clause, provision, subsection, Section or Article of this Guaranty shall be ruled invalid by any court of competent jurisdiction, the invalidity of any such clause, provision, subsection, Section or Article shall not affect any of the remaining provisions hereof, and this Guaranty shall be construed and enforced as if such invalid portion did not exist provided that such construction and enforcement shall not increase the Guarantor's liability beyond that expressly set forth herein. (1) Approvals. All approvals, consents and acceptances required to be given or made by any party hereto shall be at the sole discretion of the party whose approval, consent or acceptance is required. (J) Payments. All payments required to be made by the Guarantor hereunder shall be made in lawful money of the United States of America. ARTICLE II REPRESENTATIONS AND WARRANTIES OF THE GUARANTOR SECTION 11.1. REPRESENTATIONS AND WARRANTIES OF THE GUARANTOR. The Guarantor hereby represents and warrants that: (A) Existence and Powers. The Guarantor is a corporation duly organized and validly existing under the laws of the State of Delaware, with full legal right, power and authority to enter into and perform its obligations under this Guaranty. (B) Due Authorization and Binding Obligation. The Guarantor has duly authorized the execution and delivery of this Guaranty, and this Guaranty has been duly executed and delivered by the Guarantor and constitutes the legal, valid and binding obligation of the Guarantor, enforceable against the Guarantor in accordance with its terms except insofar as such enforcement may be affected by bankruptcy, insolvency, moratorium or by general E-2 equity principles of reorganization and other similar laws affecting creditors' rights generally and general principles of equity. (C) No Conflict. Neither the execution or delivery by the Guarantor of this Guaranty nor the performance by the Guarantor of its obligations hereunder (1) to the Guarantor's knowledge conflicts with, violates or results in a breach of any law or governmental regulation applicable to the Guarantor, (2) conflicts with, violates or results in a material breach of any term or condition of the Guarantor's corporate charter or by-laws or any judgment, decree, agreement or instrument to which the Guarantor is a party or by which the Guarantor or any of its properties or assets are bound, or constitutes a default under any such judgment, decree, agreement or instrument, or (3) to the Guarantor's knowledge will result in the creation or imposition of any material encumbrance of any nature whatsoever upon any of the properties or assets of the Guarantor except as permitted hereby. (D) No Governmental Approval Required. No approval, authorization, order or consent of, or declaration, registration or filing with, any Governmental Body is required of the Guarantor for the valid execution and delivery by the Guarantor of this Guaranty, except such as shall have been duly obtained or made. (E) No Litigation. Except as disclosed in the Guarantor's filings with the Securities and Exchange Commission pursuant to the requirements of the Securities Exchange Act of 1934, as amended, there is no action, suit or other proceeding, at law or in equity, before or by any court or Governmental Body, pending or, to the Guarantor's knowledge, threatened against the Guarantor which has a likelihood of an unfavorable decision, ruling or finding that would materially and adversely affect the validity or enforceability of this Guaranty. (F) No Legal Prohibition. The Guarantor has no knowledge of any Applicable Law in effect on the date as of which this representation is being made which would prohibit the performance by the Guarantor of this Guaranty and the transactions contemplated by this Guaranty. (G) Consent to Agreements. The Guarantor is fully aware of the terms and conditions of the Contract. (H) Consideration. This Guaranty is made in furtherance of the purposes for which the Guarantor has been organized, and the assumption by the Guarantor of its obligations hereunder will result in a material benefit to the Guarantor. ARTICLE III GUARANTY COVENANTS SECTION 111.1. GUARANTY TO CITY. The Guarantor hereby absolutely, presently, irrevocably and unconditionally guarantees to the City for the benefit of the City (1) the full and prompt payment when due of each and all of the payments required to be credited or made by the Company under the Contract (including all amendments and supplements thereto) to, or for the account of, City, when the same shall become due and payable pursuant to this Guaranty, and (2) the full and prompt performance and observance of each and all of the Obligations. Notwithstanding the unconditional nature of the Guarantor's obligations as set forth herein, the Guarantor shall have the right to assert the defenses provided in Section 3.4 hereof against claims made under this Guaranty. E-3 SECTION 111.2. RIGHT OF CITY TO PROCEED AGAINST GUARANTOR. This Guaranty shall constitute a guaranty of payment and of performance and not of collection, and the Guarantor specifically agrees that in the event of a failure by the Company to pay or perform any Obligation guaranteed hereunder subject to the applicable notice and cure provisions as they apply to the Contractor, the City shall have the right to proceed first and directly against the Guarantor under this Guaranty and without proceeding against the Company or exhausting any other remedies against the Company which the City may have. Without limiting the foregoing, the Guarantor agrees that it shall not be necessary, and that the Guarantor shall not be entitled to require, as a condition of enforcing the liability of the Guarantor hereunder, that the City (1) file suit or proceed to obtain a personal judgment against the Company or any other person that may be liable for the Obligations or any part of the Obligations, (2) make any other effort to obtain payment or performance of the Obligations from the Company other than providing the Company with any notice of such payment or performance as may be required by the terms of the Contract or required to be given to the Company under Applicable Law, (3) foreclose against or seek to realize upon any security for the Obligations, or (4) exercise any other right or remedy to which the City is or may be entitled in connection with the Obligations or any security therefore or any other guarantee thereof, except to the extent that any such exercise of such other right or remedy may be a condition to the Obligations of the Company or to the enforcement of remedies under the Contract. Upon any unexcused failure by the Company in the payment or performance of any Obligation and the giving of such notice or demand, if any, to the Company and Guarantor as may be required in connection with such Obligation and this Guaranty, the liability of the Guarantor shall be effective and shall immediately be paid or performed. Notwithstanding the City's right to proceed directly against the Guarantor, the City (or any successor) shall not be entitled to more than a single full performance of the obligations in regard to any breach or non-performance thereof. SECTION 111.3. GUARANTY ABSOLUTE AND UNCONDITIONAL. The obligations of the Guarantor hereunder are absolute, present, irrevocable and unconditional and shall remain in full force and effect until the Company shall have fully discharged the Obligations in accordance with their respective terms, and except as provided in Section 3.4 hereof, shall not be subject to any counterclaim, set-off, deduction or defense (other than full and strict compliance with, or release, discharge or satisfaction of, such Obligations) based on any claim that the Guarantor may have against the Company, the City or any other person. Without limiting the foregoing, the obligations of the Guarantor hereunder shall not be released, discharged or in any way modified by reason of any of the following (whether with or without notice to, knowledge by or further consent of the Guarantor): (1) the extension or renewal of this Guaranty or the Contract up to the specified Terms of each agreement; (2) any exercise or failure, omission or delay by the City in the exercise of any right, power or remedy conferred on the City with respect to this Guaranty or the Contract except to the extent such failure, omission or delay gives rise to an applicable statute of limitations defense with respect to a specific claim; (3) any permitted transfer or assignment of rights or obligations under the Contract by any party thereto (other than a permitted assignment to a replacement contractor in the event of a termination of the Company pursuant to Section 17 of the Contract), or any permitted assignment, conveyance or other transfer of any of their respective interests; E-4 (4) any permitted assignment for the purpose of creating a security interest or mortgage of all or any part of the respective interests of the City; (5) any renewal, amendment, change or modification in respect of any of the terms and conditions of the Contract; (6) the voluntary or involuntary liquidation, dissolution, sale or other disposition of all or substantially all the assets, marshalling of assets and liabilities, receivership, insolvency, bankruptcy, assignment for the benefit of creditors, reorganization, moratorium, arrangement, composition with creditors or readjustment of, or other similar proceedings against the Company or the Guarantor, or any of the property of either of them, or any allegation or contest of the validity of this Guaranty or Contract in any such proceeding (it is specifically understood, consented and agreed to that, to the extent permitted by law, this Guaranty shall remain and continue in full force and effect and shall be enforceable against the Guarantor to the same extent and with the same force and effect as if any such proceeding had not been instituted and as if no rejection, stay, termination, assumption or modification has occurred as a result thereof, it being the intent and purpose of this Guaranty that the Guarantor shall and does hereby waive all rights and benefits which might accrue to it by reason of any such proceeding); (7) except as permitted by Sections 4.1 or 4.2 hereof, any sale or other transfer by the Guarantor or any Affiliate of any of the capital stock or other interest of the Guarantor or any Affiliate in the Company now or hereafter owned, directly or indirectly, by the Guarantor or any Affiliate, or any change in composition of the interests in the Company; (8) any failure on the part of the Company for any reason to perform or comply with any agreement with the Guarantor; (9) the failure on the part of the City to provide any notice to the Guarantor which is not required to be given to the Guarantor pursuant to this Guaranty and to the Company as a condition to the enforcement of obligations pursuant to the Contract; (10) any failure of any party to mitigate damages resulting from any default by the Company or the Guarantor; (11) the merger or consolidation of any party to the Contract into or with any other person, or any sale, lease, transfer, abandonment or other disposition of any or all of the property of any of the foregoing to any person; (12) any legal disability or incapacity of any party to the Contract; or (6) the fact that entering into the Contract by the Company or the Guarantor was invalid or in excess of the powers of such party. Should any money due or owing under this Guaranty not be recoverable from the Guarantor due to any of the matters specified in subparagraphs (1) through (13) above, then, in any such case, such money, together with all additional sums due hereunder, shall nevertheless be recoverable from the Guarantor as though the Guarantor were principal obligor in place of the Company pursuant to the terms of the Contract and not merely a guarantor and shall be paid by E-5 the Guarantor forthwith subject to the terms of this Guaranty. Notwithstanding anything to the contrary expressed in this Guaranty, nothing in this Guaranty shall be deemed to amend, modify, clarify, expand or reduce the Company's rights, benefits, duties or obligations under the Contract. To the extent that any of the matters specified in subparagraphs (1) through (5) and (8) through (13) would provide a defense to, release, discharge or otherwise affect the Company's Obligations, the Guarantor's obligations under this Guaranty shall be treated the same. SECTION 111.4. DEFENSES, SET-OFFS AND COUNTERCLAIMS. Notwithstanding any provision contained herein to the contrary, the Guarantor shall be entitled to exercise or assert any and all legal or equitable rights or defenses which the Company may have under the Contract or under Applicable Law (other than bankruptcy or insolvency of the Company and other than any defense which the Company has expressly waived in the Contract or the Guarantor has expressly waived in Section 3.5 hereof or elsewhere hereunder), and the obligations of the Guarantor hereunder are subject to such counterclaims, set-offs or defenses which the Company is permitted to assert pursuant to the Contract or under Applicable Law (other than bankruptcy or insolvency of the Company and other than any defense which the Company has expressly waived in the Contract or the Guarantor has expressly waived in Section 3.5 hereof or elsewhere hereunder), if any. SECTION 111.5. WAIVERS BY THE GUARANTOR. The Guarantor hereby unconditionally and irrevocably waives: (1) notice from the City of its acceptance of this Guaranty; (2) notice of any of the events referred to in Section 3.3 hereof, except to the extent that notice is required to be given as a condition to the enforcement of obligations under the terms and conditions of the Contract; (3) to the fullest extent lawfully possible, all notices which may be required by statute, rule of law or otherwise to preserve intact any rights against the Guarantor, except any notice to the Company required pursuant to the Contract or Applicable Law as a condition to the performance of any obligation under the terms and conditions of this Contract; (4) to the fullest extent lawfully possible, any statute of limitations defense based on a statute of limitations period which may be applicable to guarantors (or parties in similar relationships) which would be shorter than the applicable statute of limitations period for the underlying claim; (5) any right to require a proceeding first against the Company; (6) any right to require a proceeding first against any person or security provided by or under the Contract except to the extent the Contract specifically requires a proceeding first against any person (except the Company) or security; (7) any requirement that the Company be joined as a party to any proceeding for the enforcement of any term or condition of the Contract; (8) the requirement of, or the notice of, the filing of claims by the City in the event of the receivership or bankruptcy of the Company; and E-6 (9) all demands upon the Company or any other person and all other formalities the omission of any of which, or delay in performance of which, might, but for the provisions of this Section 3.5, by rule of law or otherwise, constitute grounds for relieving or discharging the Guarantor in whole or in part from its absolute, present, irrevocable, unconditional and continuing obligations hereunder. SECTION 111.6. PAYMENT OF COSTS AND EXPENSES. The Guarantor agrees to pay the City on demand all reasonable costs and expenses, legal or otherwise (including counsel fees), incurred by or on behalf of the City in successfully enforcing by legal proceeding observance of the covenants, agreements and obligations contained in this Guaranty against the Guarantor, other than the costs and expenses that the City incurs in performing any of its obligations under the Contract, where such obligations are a condition to performance by the Company of its obligations. SECTION 111.7. SUBORDINATION OF RIGHTS. The Guarantor agrees that any right of subrogation or contribution which it may have against the Company as a result of any payment or performance hereunder is hereby fully subordinated to the rights of the City hereunder and under the Contract and that the Guarantor shall not recover or seek to recover any payment made by it hereunder from the Company until the Company and the Guarantor shall have fully and satisfactorily paid or performed and discharged the obligations giving rise to a claim under this Guaranty. SECTION 111.8. SEPARATE OBLIGATIONS: REINSTATEMENT. The obligations of the Guarantor to make any payment or to perform and discharge any other duties, agreements, covenants, undertakings or obligations hereunder shall (1)to the extent permitted by Applicable Law, constitute separate and independent obligations of the Guarantor from its other obligations under this Guaranty, (2)give rise to separate and independent causes of action against the Guarantor, and (3) apply irrespective of any indulgence granted from time to time by the City. The Guarantor agrees that this Guaranty shall be automatically reinstated if and to the extent that for any reason any payment or performance by or on behalf of the Company is rescinded or must be otherwise restored by the City, whether as a result of any proceedings in bankruptcy, reorganization or similar proceeding, unless such rescission or restoration is pursuant to the terms of the Contract or the Company's enforcement of such terms under Applicable Law. SECTION 111.9. TERM. This Guaranty shall remain in full force and effect from the date of execution and delivery hereof until all of the Obligations of the Company have been fully paid and performed. This Guaranty shall be effective irrespective as to when the commencement date occurs. E-7 ARTICLE IV GENERAL COVENANTS SECTION IVA. MAINTENANCE OF CORPORATE EXISTENCE. (A) Consolidation, Merger, Sale or Transfer. The Guarantor covenants that during the term of this Guaranty it will maintain its corporate existence, will not dissolve or otherwise dispose of all or substantially all of its assets and will not consolidate with or merge into another entity or permit one or more other entities to consolidate with or merge into it, unless the successor or the surviving entity is the Guarantor and the conditions contained in clause (2) below are satisfied; provided, however, that the Guarantor may consolidate with or merge into another entity, or permit one or more other entities to consolidate with or merge into it, or sell or otherwise transfer to another entity all or substantially all of its assets as an entirety and thereafter dissolve (1) if the successor or surviving entity (if other than the Guarantor) (a) if not transferred by operation of law, assumes in writing all the obligations of the Guarantor hereunder and, if required by law, is duly qualified to do business in the State of Texas, and (b) at the request of the City delivers to the City an opinion of counsel to the effect that its obligations under this Guaranty are legal, valid, binding and enforceable subject to applicable bankruptcy and similar insolvency or moratorium laws and within six months following such transaction (2) any such transaction does not result in the credit rating of the long term unsecured debt of the successor Guarantor (or the surviving entity, if the Guarantor) by a nationally recognized rating service within six months following such transaction being lower than that of the Guarantor immediately preceding such transaction. (B) Continuance of Obligations. If a consolidation, merger or sale or other transfer is made as permitted by this Section 4.1, the provisions of this Section 4.1 shall continue in full force and effect and no further consolidation, merger or sale or other transfer shall be made except in compliance with the provisions of this Section 4.1. No such consolidation, merger or sale or other transfer shall have the effect of releasing the initial Guarantor from its liability hereunder unless a successor entity has assumed responsibility for this Guaranty as provided in this Section 4.1 and if such transaction results in a Material Decline in Guarantor's Credit Standing, the successor Guarantor shall provide credit enhancement. SECTION IV.2. ASSIGNM€NT. Without the prior written consent of the City, this Guaranty may not be assigned by the Guarantor, except pursuant to Section 4.1 hereof. SECTION IV.3. QUALIFICATION IN TEXAS. The Guarantor agrees that, so long as this Guaranty is in effect, if required by law, the Guarantor will be duly qualified to do business in the State of Texas. SECTION IV.4. CONSENT TO JURISDICTION. The Guarantor irrevocably: (1) agrees that any Legal Proceeding arising out of this Guaranty shall be brought in the State or federal courts in Fort Worth, Texas having appropriate jurisdiction; (2) consents to the jurisdiction of such court in any such Legal Proceeding; (3) waives any objection which it may have to the laying of the jurisdiction of any such Legal Proceeding in any of such courts; and (4) waives its right to a trial by jury in any Legal Proceeding in any of such courts. SECTION IV.5. BINDING EFFECT. This Guaranty shall inure to the benefit of the City and its permitted successors and assigns and shall be binding upon the Guarantor and its successors and assigns. SECTION IV.6. AMENDMENTS CHANGES AND MODIFICATIONS. This Guaranty may not be amended, changed or modified or terminated and none of its provisions may be waived, except with the prior written consent of the City and of the Guarantor. B_g 4/11/05 SECTION IV.7. LIABILITY. It is understood and agreed to by the City that nothing contained herein shall create any obligation of or right to look to any director, officer, employee or stockholder of the Guarantor (or any Affiliate thereof) for the satisfaction of any obligations hereunder, and no judgment, order or execution with respect to or in connection with this Guaranty shall be taken against any such director, officer, employee or stockholder. SECTION IV.8. NOTICES. All notices, demands, requests and other communications hereunder shall be deemed sufficient and properly given if in writing and delivered in person to the following addresses or sent by first class mail and facsimile, to such addresses: (a) If to the Guarantor: District Manager Allied Waste Systems, Inc. dba Trinity Waste Services 6200 Elliott Reeder Road Fort Worth, Texas 76117 Attn: Allied Waste Industries, Inc., Corporate Secretary 15880 N. Greenway-Hayden Loop Scottsdale, Arizona 85260 (b) If to the City: City of Fort Worth, Department of Environmental Management 1000 Throckmorton Fort Worth, Texas 76102 Attn: Kim Mote, Assistant Director of Environmental Management With a copy to: Brian Boerner, Director of Environmental Management; and City Attorney's Office Either party may, by like notice, designate further or different addresses to which subsequent notices shall be sent. Any notice hereunder signed on behalf of the notifying party by a duly authorized attorney at law shall be valid and effective to the same extent as if signed on behalf of such party by a duly authorized officer or employee. Notices and communications given by mail hereunder shall be deemed to have been given five (5) days after the date of dispatch; all other notices shall be deemed to have been given upon receipt. l B-9 aioOUR I N IN WITNESS WHEREOF, the Guarantor has caused this Guaranty to be executed in its name and on its behalf by its duly authorized officer as of the date first above written. as Guarantor ATTEST: By: _���- •-V,A Printed Name: c6ti Title: -io VA c;,f Accepted and Agreed to by: [City Seal] CITY OF ORT WORTH ATTEST: _ By: uwck Printed Name : Libby Watson Title: Assistant City Manager B-10 4/11/05 _.._. . .1- , 1 16002/003 APR-25-2005 20-SO JOE SANDERS DF7W DISTRICT 9722250969 P.01 CERTIFICATE The undersigned certifies that (i) she is the duly elected, qualified and acting Secretary of ALLIED WASTE SYSTEMS, INC., a Delaware corporation, d/b/a Trinity Waste Services(the"Corporation');(ii)attached hereto as Schedule A is a true and aurmn copy of resolutions duly adopted by written consent of the Board of Directors and (iii) such resolutions have not been amended,rescinded,modified or revoked,and arc in full force and effect on the date hereof. Dated: February 25,2005. Jo Lynn hite Secretary I M r l 04/26/2005 08 11 FAX 8178312020 TRINITY WASTE IZO03/003 APR-252005 20--50 JOE SANDERS DFW DISTRICT 9722250969 P.02 SCHEDULE A RESOLVED, that the Corporation is hereby authorized to miter into a Contract for Transportation Services from City Convenience Centers and Special Events with the City of Fort Worth, Texas (the "Contract") substantially in the form presented to the Corporation,with such changes as may be approved by the officers or such other persons authorized to execute same and such actions are hereby approved,adopted, ratified and confirmed; FURTHER RESOLVED, that the Corporation is hereby authorized and directed to execute and deliver the Contract,and such other applications, exhibits, agreements or attachments necessary in connection with the Contract and in connection with the performance of the Corporation's obligations and agreements as set forth therein; FURTHER RESOLVED, that SCOTT BRADLEY, as an Authorized Agent for the Corporation, or any officer of the Corporation, is hereby authorized and directed to execute and deliver the Contract to the City of Fort Worth, Texas and to execute any and all other docuatcnts on behalf of the Corporation required by the City of Fort Worth, Texas in connection with the Contract and in connection with the performance of the Corporation's obligations and agreements set forth therein;and FURTHER RESOLVED,that the Secretary, or any other officer of the Corporation, is hereby authorized to certify to the adoption of the foregoing resolutions as may be required. 1637379 "✓ .4 1 U�✓�ln DATE ACORD,, CERTIFICATE OF LIABILITY INSURANCE page 1 of 3 04/29/2005 PRODUCER 877-945-7378 THIS CERTIFICATE IS ISSUED AS A MATTER OF INFORMATION ONLY AND CONFERS NO RIGHTS UPON THE CERTIFICATE Willis North America, Inc. - Regional cart center HOLDER. THIS CERTIFICATE DOES NOT AMEND, EXTEND OR 26 Century Blvd. ALTER THE COVERAGE AFFORDED BY THE POLICIES BELOW. P. O. Box 305191 Nashville, TN 372305191 INSURERS AFFORDING COVERAGE NAIC# INSURED Allied Waste Industries,Inc. INSURERA American Home Assurance Company 19380-004 (Named Insd.Cont.Below) 15880 N.Greenway-Hayden INSURERS:American Home Assurance Company 19380-005 LOOP,Suite 100 INSURERC: Illinois National Ins. Co. 23817-002 Scottsdale,AZ 85260 INSURER D: Ins. Co. of the State of PA 19429-004 INSURERE: COVERAGES THE POLICIES OF INSURANCE LISTED BELOW HAVE BEEN ISSUED TO THE INSURED NAMED ABOVE FOR THE POLICY PERIOD INDICATED.NOTWITHSTANDING ANY REQUIREMENT,TERM OR CONDITION OF ANY CONTRACT OR OTHER DOCUMENT WITH RESPECT TO WHICH THIS CERTIFICATE MAY BE ISSUED OR MAY PERTAIN THE INSURANCE AFFORDED BY THE POLICIES DESCRIBED HEREIN 1S SUBJECTTO ALL THE TERMS,EXCLUSIONS AND CONDITIONS OF SUCH POLICIES.AGGREGATE LIMITS SHOWN MAY HAVE BEEN REDUCED BY PAID CLAIMS. EE pp RR INSR R TYPE OF INSURANCE POLICY NUMBER PDATE MAYDDnVE PDATEY NAY�Df" LIMITS AT X. GENERAL LIABILITY GL6007644 1/1/2005 1/1/2006 EEpAApCCMHqq�OEECCCURRRRENCE $ 21500.000 X COMMERCIAL GENERAL LIABILITY PREAtt�ESOEaoocEurance $ 100,000 CLAIMS MADE LJ OCCUR MED EXP(Any one person) $ PERSONAL&ADV INJURY $ 2,500,000 GENERAL AGGREGATE $ 10,000,000 GEN'L AGGREGATE LIMIT APPLIES PER: PRODUCTS-COMP/OP AGG $ 51000,000 POLICY PR`s F7 LOC A a AUTOMOBILE LIABILITY CA2045015 1/1/2005 1/1/2006 COMBINED SINGLE LIMIT $ 5,000,000 A IX X ANYAUTO CA2045016 1/1/2005 1/1/2006 (Eesocldent) B x ALL OWNED AUTOS CA2045017 1/1/2005 1/1/2006 BODILY INJURY C x SCHEDULEDAUTOS CA2045018 1/1/2005 1/1/2006 (Perperson) $ HIREDAUTOS BODILY INJURY $ NON-OWNED AUTOS (Peracciden0 PROPERTY DAMAGE $ (Peraoddenq GARAGE LIABILITY AUTO ONLY-EA ACCIDENT $ ANY AUTOOTHERTHAN EA ACC $ AUTO ONLY: ACaY; $ EXCESS LIABILITY EACH OCCURRENCE $ OCCUR u CLAIMS MADE AGGREGATE $ $ DEDUCTIBLE $ RETENTION $ $ D WORKERS COMPENSATION AND WC5899177 1/1/2005 1/1/2006 XTORYLIriiS OER EMPLOYERS'LLIWILITY C ANY PROPRIETOR/PARTNER/EXECUTNE WC5899176 1/1/2005 1/1/2006 E.L.EACH ACCIDENT $ 1,000,000 A OFFICER/MEMBEREXCLUDED? WC5899174 1/1/2005 1/1/2006 E.L.DISEASE-EA EMPLOYEE,$ 1,000,000 If yes,describe under A SPECIAL PROVISIONS below WCSB 173 1 005 1 1 2006 E.L.DISEASE-POLICY LIMIT 4 1,000,000 D OTHER WC 8 1 1 1 1 1 200 A Workers Compensation WC5899178 1/1/2005 1/1/2006 $1,000,000 Each Accident $1,000,000 Disease Policy Limit S1,000,000 t Each a DESCRIPTION OFOPERATIONSILOCATIONSIVEHICLESIEXCLUSIONS ADDED BY ENDORSEMENT/SPECIAL PROVISIONS Named Insured Includes Trinity Waste Services CERTIFICATE HOLDER CANCELLATION statutory Notice for N=-Pat SHOULD ANY OF THE ABOVE DESCRIBED POLICIES BE CANCELLED BEFORE THE EXPIRATION DATE THEREOF,THE ISSUING INSURER WILL ENDEAVOR TO MAIL 30 DAYS WRITTEN NOTICE TO THE CERTIFICATE HOLDER NAMED TO THE LEFT,BUT FAILURE TO DO$o SHALL IMPOSE NO OBLIGATION OR LIABILITY OF ANY KIND UPON THE INSURER,ITS AGENTS OR C�t�(�O�,Fort Worth REPRESENTATIVES. 1 UW I T1roclanortOn Street RIZE REPRESE VE Fort Worth,TX 76102-6311 _ 4,,I �h j 1 � _, 44 11 . J ACORD 25(2001/08) Coll:1284518 Tpl:327026 Ce :5723923 ©ACO C!' R TkON 8 ,, DATE W1111S CERTIFICATE OF LIABILITY INSURANCE page 2 of 3 04/29/2005 PRODUCER 877-945-7378 THIS CERTIFICATE IS ISSUED AS A MATTER OF INFORMATION ONLY AND CONFERS NO RIGHTS UPON THE CERTIFICATE Willis North America, Inc. - Regional cert Center HOLDER. THIS CERTIFICATE DOES NOT AMEND, EXTEND OR 26 century Blvd. ALTER THE COVERAGE AFFORDED BY THE POLICIES BELOW. P. O. Box 305191 Nashville, TN 372305191 INSURERS AFFORDING COVERAGE NAIC# INSURED Allied Waste Industries,Inc. INSURERA: American Home Assurance Company 19380-004 (Named Insd.Cont.Below) 15880 N.Greenway-Hayden INSURER B: American Home Assurance Company 19380-005 Loopp,Suite 100 INSURERC: Illinois National Ins. Co. 23817-002 Scottsdale,AZ 85260 INSURERD: ins. Co. of the State of PA 19429-004 INSURER E: DESCRIPTION OF OPERATIONS/LOCATIONSNEHICLES/EXCLUSIONS ADDED BY ENDORSEMENT/SPECIAL PROVISIONS EMloyers Liability (Stop Gap) coverage for Monopolistic States is included: Certificate holder is an additional insured, except for Workers' Compensation, if required by written contract. Co11:1284518 Tp1:327026 Cert:5723923 Page 3 of 3 IMPORTANT If the certificate holder is an ADDITIONAL INSURED, the policy(ies) must be endorsed. A statement on this certificate does not confer rights to the certificate holder in lieu of such endorsement(s). If SUBROGATION IS WAIVED, subject to the terms and conditions of the policy, certain policies may require an endorsement. A statement on this certificate does not confer rights to the certificate holder in lieu of such endorsement(s). DISCLAIMER The Certificate of Insurance on the reverse side of this form does not constitute a contract between the issuing insurer(s), authorized representative or producer, and the certificate holder, nor does it affirmatively or negatively amend, extend or alter the coverage afforded by the policies listed thereon. ACORD25(2001/08) Coll:1284518 Tpl:327026 Cert:5723923 City of Fort Worth, Texas 414y � o) Clckatian DATE REFERENCE NUMBER LOG NAME PAGE 11/5/02 C-19338 52TRANSPORT 1 of 2 SUBJECT AUTHORIZATION TO EXECUTE A CONTRACT WITH ALLIED WASTE SYSTEMS, INC. D/B/A TRINITY WASTE SERVICES FOR TRANSPORT SERVICES FOR WASTE AND RECYCLABLES FROM CITY CONVENIENCE CENTERS AND SPECIAL EVENTS RECOMMENDATION: It is recommended that the City Council: 1. Authorize the City Manager to negotiate and execute a contract with Allied Waste Systems, Inc. d/b/a Trinity Waste Services for transportation of bulk containers of waste and bulk containers of recyclables from the City's proposed convenience centers to disposal and processing facilities, respectively, and for transportation of waste and/or recyclables generated and placed in open top containers at special events in the City; and 2. Authorize this contract to begin April 1, 2003, and expire March 31, 2013, with three ten-year renewal options. The estimated cost for FY2002-2003 is $130,000. The estimated value of this contract over the ten-year term is $1,486,877. DISCUSSION: On July 2, 2002, the City received responses to a Request for Proposal (RFP) for a variety of solid waste services to include transport services for waste and recyclables from City convenience centers and special events. Following initial proposal evaluations, the evaluation committee comprised of 14 representatives from the City Manager's Office, M/WBE Office, Internal Audit, the Finance Department, and the Law Department, with significant input from the consulting firm of Gershman, Brickner and Bratton, solicited best and final offers from the RFP respondents. After evaluation of best and final offers, firms were selected for interviews, presentations and negotiations. Allied Waste Systems, Inc. d/b/a Trinity Waste Services is recommended as awardee for these transport services based on evaluation factors enumerated on the attached RFP proposal evaluation matrix. These solid waste collection services shall include the transportation of bulk containers of waste and bulk containers of recyclables from the City's proposed convenience centers to disposal and processing facilities, respectively, and for transportation of waste and/or recyclables generated and placed in open top containers at special events in the City. Public forums inviting citizen and provider comments were held on March 4 and 5, 2002. A draft RFP was mailed to all known providers on April 2, 2002, to solicit comments from the industry. This RFP was advertised on June 19 and 26, 2002. The Purchasing Division solicited proposals from all known solid waste services providers, including those in the purchasing system database and advertised on DemandStar.com. Proposal notices were also sent to other firms in related industries. City of Fort Worth, Texas 414)ayor And Caunc�l cons tunkatian DATE REFERENCE NUMBER LOG NAME PAGE 11/5/02 C-19338 52TRANSPORT 2 of 2 SUBJECT AUTHORIZATION TO EXECUTE A CONTRACT WITH ALLIED WASTE SYSTEMS, INC. D/B/A TRINITY WASTE SERVICES FOR TRANSPORT SERVICES FOR WASTE AND RECYCLABLES FROM CITY CONVENIENCE CENTERS AND SPECIAL EVENTS A pre-proposal conference was conducted on May 30, 2002, with approximately 40 providers in attendance. A total of nine responses were received for all solid waste services, with four responses for these types of transport services. PROPOSAL EVALUATION - See attached evaluation matrix. M/WBE - Allied Waste Systems, Inc. d/b/a Trinity Waste Services is in compliance with the City's M/WBE Ordinance by committing to a minimum of 40% M/WBE participation. The City's goal on this project is 25%. RENEWAL OPTIONS - This contract may be renewed for up to three successive ten-year terms at the City's option. This action does not require specific City Council approval provided that the City Council has appropriated sufficient funds to satisfy the City's obligations during the renewal term. FISCAL INFORMATION/CERTIFICATION: The Finance Director certifies that funds are available in the current operating budget, as appropriated, of the Solid Waste Fund, and that subsequent year operating costs will be budgeted. CB:k Submitted for City Manager's FUND I ACCOUNT CENTER AMOUNT CITY SECRETARY Office by: (to) Charles Boswell 6183 Originating Department Head: Brian Boerner 8079 (from) APPROVED 11!05/02 PE64 539120 0525002 $130,000.00 Additional Information Contact: Brian Boerner 8079