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HomeMy WebLinkAboutContract 28496-A1 CITY SECRETARY CONTRACT NO, C11(1 STATE OF TEXAS § COUNTIES OF TARRANT, § DENTON, PARKER AND WISE § FIRST EXTENSION AND AMENDMENT OF CONTRACT FOR THE PROCESSING OF RECYCLABLE MATERIALS THIS CONTRACT is made and entered into by and between the City of Fort Worth, a home-rule municipal corporation in Tarrant, Denton, Parker and Wise Counties, Texas, acting herein by and through Charles Daniels, its duly authorized Assistant City Manager, hereinafter called "City", and WM Recycle America, LLC, a Texas corporation, acting herein by and through y�„„h„p J; ,�} , its duly authorized hereinafter called "Contractor." KNOW BY ALL THESE PRESENT: 1. DEFINITIONS Acceptable Material shall mean source-separated recyclable material, including but not limited to: newspaper, corrugated boxes, pizza boxes, kraft paper, boxboard, chipboard (e.g. tissue and cereal boxes with plastic liners removed, paper towel and toilet paper cores and similar items), home-office paper (computer paper, calendars, school papers), magazines and shopping catalogs, envelopes, paperboard, paper grocery bags, soda and beer cartons, old phone directories, paperback books, shopping and lunch bags, discarded mail, carbonless forms paper, aluminum food and beverage containers, aluminum baking tins, ferrous metal containers, empty aerosol cans, glass bottles and jars, and rigid plastic (resins No.1 thru No.7) containers collected from residences and businesses in a single stream or from any of the City's Convenience Centers. All clean metallic lids are acceptable. It is not necessary to remove paper labels from containers. Acceptable Material should be reasonably free of food residue. Acceptable Material does not include Unacceptable Material excepting an allowance for no more than ten percent (10%) residue by weight. Residue shall refer to incidental non-recyclables and recyclable material that is not able to be recovered due to the inefficiencies of the mechanical processing machinery and/or the manual sorting process such as small pieces of paper and plastic that are not large enough to be picked by a gloved-hand from the sorting belt. Residue does not include items that present safety or health hazards such as Hazardous Waste or Medical Waste. 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. City shall mean the City of Fort WortI, Texas. OFFICIAL RECORD CITY SECRETARY FT/WORTH,TX RECEIVED APR 23 20i3 City Collector shall mean the Person, firm, corporation or association or the agents or employees thereof to whom the City shall have granted a franchise or a permit, or designated as duly authorized to perform the Collection Services, receive, carry, haul or transport Recyclables within the City, and may include the City. Collection Services shall mean removal of Recyclables for transport elsewhere, or cause such to be done. Collection Contract(s) shall mean the contract(s) the City has with other Persons for the collection of Solid Waste and Recyclables for designated service units, residences and businesses within the City and/or from the City Convenience Centers. Commission shall mean the Texas Commission of Environmental Quality (TCEQ). Contract shall mean this Contract, all attachments and exhibits and all other ancillary documents required under the RFP. Contractor shall mean WM Recycle America, LLC. Contract Year shall mean October through September of each year. Convenience Center shall mean a facility which includes a vehicle receiving area and various bulk containers for deposit of selected waste and recyclable materials so as to provide City residents with one-stop, drop-off service for deposit of municipal Solid Waste and recyclable materials. Cost Adjustment Method shall mean the adjustment of unit prices for Processing of Recyclables under this Contract with the City by the Contractor for each year of the Contract as shown on Attachment C. The price may be adjusted upward or downward to reflect changes in the cost of operations by a cost adjustment calculation using indices applicable to certain services. Day shall mean calendar day, unless otherwise specified. Director shall mean that person whom the City has designated to be responsible for administrating the City's Solid Waste services.. 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 Entity, 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 jurisdiction Contract for Recycling Materials CRR04.09.13 2 of 33 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 collection of Solid Waste. Government Approvals shall mean all licenses, permits and approvals required from any Governmental Entity for performance of the Contractor's obligations under this Contract. Guarantor shall mean Waste Management, Inc. Guaranty shall mean the Guaranty Agreement, dated as of [ ], 2013 from the Guarantor to the City. Hazardous Waste shall mean any Solid Waste identified or listed as a Hazardous Waste by the administrator of the United States Environmental Protection Agency (EPA) 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. Letter of Credit shall mean an irrevocable direct pay letter of credit issued by a United States bank whose long-term debt is rated "A" or better by either rating service and which maintains a banking office in the State of Texas. The Letter of Credit shall be in the stated amount equal to one (1) year's estimated payments to the City, shall be for a term of one (1) year, shall be continuously renewed, extended or replaced so that it remains in effect until 180 Days after the termination of this Contract, and shall be issued substantially in the form set forth in the RFP subject to reasonable modifications required by the issuing bank at the time of issuance. Such modifications shall be subject to the City's approval, which approval shall not be unreasonably withheld, and the City shall have the right to request the Contractor to find a replacement issuing bank if the City does not approve of such modifications. Material Obligation shall mean those services or duties for which this Contract calls upon by a party to perform unless specifically noted otherwise within the terms of this Contract, and for which, by the terms of this Contract may constitute grounds for penalties or termination if the party fails to perform such services or duties. Medical Waste shall mean waste generated by health-care-related facilities and/or associated with healthcare activities, not including Garbage or Rubbish generated from offices, kitchens, or other non-healthcare activities. The term includes special waste from healthcare related facilities or associated healthcare activities 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. Contract for Recycling Materials CRR04.09.13 3 of 33 MOP shall mean mixed office paper from commercial sources only. MP shall mean mixed paper as reflected in the OBM and shall have the same meaning as RMP defined herein. MWBE shall mean a certified minority or women's business enterprise pursuant to City ordinance. OBM shall mean the Official Board Markets, "Transacted paper stock prices", on which fiber revenue is based. OCC shall mean old corrugated boxes as reflected in the OBM and shall include empty pizza boxes without food residue. ONP shall mean old newspapers, magazines and shopping catalogs. 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, co-partnership, firm, company, corporation, 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 shall mean the separation and preparation of Single-stream Recyclables, delivered to the Contractor by the City or the City Collector(s), into marketable commodities. Processing Facility shall mean the Contractor's facility located at 1923 Meridian Street, Arlington, Texas, whose activities include, but are not limited to, the separation and preparation of Recyclables and their residuals to produce a marketable commodity or product(s) for beneficial use. Processing Fee shall mean the amount paid by the City to the Contractor for the Acceptable Material accepted and processed at the Processing Facility. 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 which is consistently used in the manufacture of products, which may otherwise be produced using raw or virgin materials. Recyclables are not Solid Waste. Recycling shall mean a process by which materials that have served their intended use or are scrapped, discarded, used, surplus, or obsolete, are collected, separated or processed and returned Contract for Recycling Materials CRR04.09.13 4 of 33 to use in the form of raw materials in the production of new products. Except for mixed Municipal Solid Waste composting, that is, composting of the typical mixed Solid Waste stream generated by residential, commercial, and/or institutional sources, Recycling includes the composting process if the compost material is put to beneficial use. Recycling Services shall mean those services for which the City and the Contractor have negotiated and agreed upon according to the terms of this Contract. 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). RFP shall mean the Request for Proposals No. 02-0087 and all ancillary documents of the RFP or Contractor's proposal. RMP (Residential Mixed Paper) shall mean all Acceptable Material as herein defined other than OCC, OMG and ONP. Rubbish shall mean the same as Refuse. Single-stream Recyclables shall mean all Acceptable Material as defined herein. Solid Waste shall mean any Garbage, Rubbish, Refuse, sludge from a wastewater treatment plant, water supply treatment plant, or air pollution control facility, and other discarded material, including solid, liquid, semi-solid, or contained gaseous material resulting from industrial, municipal, commercial, mining, and agricultural operations and from community and institutional activities. The term does not include: (A) 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; (B) 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. SOP shall mean sorted office paper. Ton shall mean a short ton of 2000 pounds. Contract for Recycling Materials CRR04.09.13 5 of 33 Unacceptable Material shall mean any material that is (i) Hazardous Waste, (ii) Medical Waste, and (ill) excluded from the definition of municipal Solid Waste by Chapters 363 and 361 of the Texas Health and Safety Code and other materials which require special handling or treatment including, but not limited to, lead acid batteries, tires, liquid waste, and large or bulky items such as appliances. Unacceptable Material also means recyclable material that does not meet the requirements of the Texas Administrative Code, 30 TAC §§328.1-328.8; that is the recyclable material contains more than ten percent (10%) by weight of contaminants and/or non-recyclable material. Contaminants include but are not limited to food waste, recyclable materials containing food waste, plastic items that are not rigid containers, dirt, disposable paper items such as tissues and diapers, paint, pesticides, herbicides and other liquids. Also unacceptable are metallic wrapping paper, metallic greeting cards, Styrofoam or paper meat trays, plastic grocery bags, auto glass, cookware, plastic egg cartons, carbon paper, non-paper envelopes (e.g. tyvek) and hardcover books (unless covers and spines have been removed). Unanticipated Events shall mean severe weather events such as hurricanes, tornadoes, floods, ice storms or hail, and other disasters such as fires but not including reasonably anticipated weather conditions for the geographic area of the City. 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 is not limited to the following an act of God, landslide, lightning, earthquake, fire, explosion, flood, 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 collection, transportation, Processing or disposal of Solid Waste and or Recyclables, including a dispute related to Contractor's labor force. Violation shall mean any determination by a Governmental Entity that the Contractor is in violation of or not in compliance with any portion of its Permit(s) or Applicable Laws. Contract for Recycling,Materials CRR04.09.13 6 of 33 2. SCOPE OF CONTRACTOR'S SERVICES Contractor hereby covenants and agrees to diligently and faithfully perform the public service of: A. Processing, marketing, and sale of Recyclables and the disposal of their residuals collected from residences and businesses collected by the City Collector, and the City's Convenience Centers by the City Collector under the terms of the Collection Contract(s) with the City, and from such other establishments as designated by the Director; B. Provide all labor, tools, equipment, materials, insurance, Performance Bonds, supervision and all other items necessary for the performance of such work and services. All such work shall be made in accordance with the terms herein; C. Make educational payments to the City in accordance with Section 4; D. Attend all meetings which shall include but not be limited to monthly meetings during the first six (6) months after the commencement of this Contract and then once quarterly. Contractor may request additional meetings as is reasonably necessary by providing notice to the Director in a timely manner; E. Work with City and City Collector(s) to resolve customer service issues; F. Make timely reports and payments to the City; G. Provide other necessary services associated with this Contract; and H. Respond to and resolve complaints in a timely fashion. 3. SCOPE OF CITY SERVICES The City agrees to perform the following services: A. Designate a City representative to provide timely direction to the Contractor and render City decisions; B. Timely review and respond, if necessary, to reports submitted by Contractor; C. Monitor the personnel, equipment, and vehicle standards as described in the terms of this Contract; D. Inform Contractor of complaints made by City Collector(s) in a timely manner; Contract for Recycling Materials CRR04.09.l 3 7 of 33 E. Provide educational programs and material as determined by the Director to the City's citizens to educate citizens on the proper way to set out Recyclables for collection under the terms of this Contract and the City's ordinances and to otherwise promote recycling; F. Provide a monthly report of the City's educational programs in which Contractor's educational contribution is being applied; G. Work with Contractor and City Collector(s) to resolve customer service issues; and H. Assess liquidated damages as determined by the Director. 4. PAYMENT For and in consideration of the Recycling Services performed in accordance with this Contract, payment shall be made as follows: Within fifteen Days of the end of each month during which Recycling Services are provided by the Contractor, Contractor shall submit to the Director a monthly report which shall include the items described in Section 13, together with a check representing the payment owed by the Contractor. The breakdown of Acceptable Material by commodity shall be established by the Waste Audit Procedure detailed in Attachment A, and shall be the basis of the commodity percentages for which the City shall be paid for deliveries of Acceptable Material in the previous month in accordance with the terms set forth below. The payment shall represent the difference between A and B (A— B). A. A is equal to: 75% of the revenue for all Acceptable Material which shall be calculated as described in sub-paragraphs 1 through 3 below. 1. The revenue shall be equal to the sum of the amount received by the Contractor for the sale of all Acceptable Material that is non-fiber material, plus the amount for ONP and RMP, which shall be the total weight of ONP multiplied by the index price per Ton which shall be (i) ten dollars ($10) over the high side for #8 News Southwest on the OBM as listed in the second edition of each month; or (ii) forty-two dollars and fifty cents ($42.50) (the "Floor Price"), whichever is greater. 2. The Parties agree to allow a total of thirteen percent (13%), by weight, of RMP to be considered ONP for revenue purposes and Contractor will pay the ONP price for RMP with the following limits by type of RMP: (i) five per cent (5%) by weight of home-office paper, (ii) five per cent (5%) by weight of discarded mail; Contract for Recycling Materials CRR04.09.13 8 of 33 and (iii) three percent (3%) by weight of chipboard to be calculated using the ONP formula. 3. For any RMP that exceeds the limits stated above, Contractor will pay the City 75% of the revenue received from the sales of baled RMP. For all OCC, Contractor will pay the City 75% of the revenue received from the sales of baled OCC. For all MOP, Contractor will pay the City 75% of the revenue received from the sales of baled SOP. No transportation costs of any kind shall be deducted from these amounts. All RMP accepted at Contractor's facility that any division of Contractor uses above the limits stated in Section A.2 of this Contract in any one month shall be considered ONP for revenue-sharing purposes for that month. B. B is equal to: the total weight of Acceptable Material received by the Contractor from the City Collector(s) in a month for Processing multiplied by thirty three dollars and fifty five cents ($33.55) per Ton (the "Initial Processing Fee") whereas the Initial Processing Fee shall be adjusted each year following the first Contract Year by the Cost Adjustment Method according to Section 5 of this Contract and sub-paragraphs 1 through 4 below. 1. Contractor shall charge the City a Processing Fee per Ton of Acceptable Material received and processed at the Processing Facility from the City Collector(s). The base fee shall be thirty three dollars and fifty five cents ($33.55) per Ton if the City's recycling program includes glass. 2. If glass is removed as an Acceptable Material by the City, the Processing Fee set forth above will be reduced by an additional dollar ($1.00) per Ton during the first Contract Year, adjusted each year following the first Contract Year by the Cost Adjustment Method according to Section 5 of this Contract. C. Contractor shall also pay to the City an educational payment as indicated in Section 2 of this Contract which shall be equal to one dollar and twenty six cents ($1.26) per Ton of Acceptable Material delivered by City Collector(s) to the Processing Facility, adjusted each Contract Year by the Cost Adjustment Method as described in Section 5. The educational payment shall be paid to the City monthly and shall be the amount for all tonnage of Acceptable Material delivered to the Processing Facility in the respective month through the last Day of the month preceding the due date. Contractor shall receive quarterly reports from the City describing how the educational payment is being used in the City's educational programs for Recycling. The City agrees to spend the educational payment only on educational programs promoting Recycling. D. The procedure for identifying and handling contaminated Recyclables shall be as detailed in Attachment B. Contract for Recycling Materials CRR04.09.13 9 of 33 5. UNIT PRICE ADJUSTMENT Contractor hereby agrees to accept payments adjusted in the manner as reflected in the Adjustment Schedule included in this Contract as Attachment C, as full compensation for services rendered. Contractor will submit documentation of the payment adjustment criteria to the City along with its annual request for rate adjustment. 6. TERM The term of the Contract shall be for a period of five (5) years, commencing March 31, 2013 (the "Commencement Date") and ending March 31, 2018. City shall have the right to extend this Contract for up to two (2) consecutive ten(10) year renewal terms, provided City and Contractor agree in writing at least ninety (90) Days prior to the end of the initial or renewal term. All renewals terms shall have the same terms, conditions and fees as set forth herein, unless agreed to otherwise in writing by both parties in an amendment to this Contract. 7. WEIGHTS AND MEASURES METHOD Contractor shall weigh all Recyclables received at the Processing Facility from the City or City Collector(s) and shall maintain certified scales of sufficient size and quality to accurately weigh Recyclables. The scales shall be in operation at all times during the time Contractor receives Recyclables from the City or City Collector(s), except to the extent due to an Uncontrollable Circumstance, but in no event shall any scale be inoperative for a period exceeding two (2) consecutive Days. Contractor will keep current and provide the City a backup plan for weighing vehicles when their scales are inoperative. Contractor will provide software for operation of the scales. Contractor shall have the scales checked, calibrated and certified not less than every six (6) months during the term of this Contract by a reputable company approved by the City and the Contractor. The Contractor shall provide the City with advance notice of the date and time that the scales will be tested, and allow the City to have a representative present. The Contractor will arrange for the testing company to mail a copy of the test results directly to the City. When the scales are not operating due to any circumstance, the weight of Acceptable Material brought into the Processing Facility by Contractor shall be estimated using the actual average truckload from receipt of Recyclables from the past three (3) months for the purposes of this Contract. Contract for Recycling Materials CRR04.09.13 10 of 33 8. LABOR FORCE A. The Contractor agrees that all persons employed in the performance of services under the Contract shall be paid standard wages, notwithstanding the foregoing, the Contractor agrees to: 1. Comply with all requirements of Chapter 2258, Texas Government Code, including the payment of not less than the rates determined by the City Council of the City of Fort Worth to be the prevailing wage rates in accordance with Chapter 2258, Texas Government Code; 2. Maintain records that show (i) the name and occupation of each worker employed by the Contractor for the Recycling Services; and (ii) the actual per diem wages paid to each worker, throughout the term of this Contract and any renewal term(s). These records shall be open at all reasonable hours for inspection by the City; 3. Post the prevailing wage rates in a conspicuous place at WM Recycle America, LLC ., Recycling Division, located at 1923 Meridian Street, Arlington, Texas, at all times. B. Contractor must provide thirty (30) Days notice of a change in key personnel (e.g., Division President, Operations Manager and Facility Manager) to the Director and introduce such new personnel to the Director. Contractor shall employ only such superintendents, foremen, and workers who are careful, competent and fully qualified to perform the duties or tasks assigned to them and shall take appropriate action against any employees or subcontractors of Contractor who shall behave themselves in such manner as to be actionable or who neglect or refuse to comply with or carry out the directions of Contractor or to follow the Contractor's rules, regulations, safety procedures and policies. 9. HOLIDAYS The following Days shall be observed as holidays: New Year's Day, Thanksgiving Day, and Christmas Day. These holidays may be changed upon the determination of the Director. The Processing Facility shall be made available to receive Acceptable Material from the City Collector(s) and for Processing every scheduled Day, including bad weather Days, unless the Director informs Contractor(s) of a suspension of service. 10. MWBE REQUIREMENTS In keeping with the MWBE ordinance, Contractor agrees to the following: Contract for Recycling,'Materials CRR04.09.i 3 11 of 33 A. A minimum of twenty-five percent (25%) of the total dollar value of this Contract shall be paid as compensation to certified MWBE firms according to the City's ordinance(s). B. Contractor will, during the term of this Contract, provide City with monthly reports detailing its compliance with the requirements for MWBE participation. City shall have a right of access to any and all books, records and documents, which relate to MWBE subcontracts 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 for these purposes. 11. PERSONNEL STANDARDS A. Contractor shall furnish such qualified mechanical, supervisory, clerical and other personnel as may be necessary to provide the services required in a safe, economical and efficient manner. All workers shall have sufficient skill, training, ability and experience to properly perform the work assigned to them and operate any equipment necessary to properly carry out the performance of the assigned duties. B. Contractor shall train its employees to identify Hazardous Waste and Medical Waste. C. Contractor shall not, nor shall it permit its employees to, demand or solicit, directly or indirectly, any additional compensation or gratuity from members of the public or from City Collector(s) for services provided under the Contract. D. Contractor shall use its best 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 prohibit the use of loud or profane language. 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 duties not entailing contact with the public or City Collector(s) 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. Contract Jor Recycling Materials CRR04.09.i 3 12 of 33 12. EQUIPMENT A. Contractor shall furnish and maintain all equipment in accordance with the standards set out in the RFP, this Contract and all Applicable Law, and as is considered to be necessary for prosecution of the work in an acceptable manner and at a satisfactory rate of progress. B. All equipment, tools, and machinery used for handling materials and executing any part of the work shall be maintained in satisfactory, safe and efficient working condition in accordance with the manufacturer's specifications and/or recommendations. Equipment used by Contractor or Contractor's subcontractor shall be such that no injury to the workers or property should result from its proper use. Contractor shall be responsible for initiating, maintaining and supervising all safety precautions and programs, in connection with the work and services performed hereunder. Contractor shall provide reasonable protection to prevent property loss or damage and/or personal injury to persons, including but not limited to employees performing such work and all other persons who may be affected thereby. C. In addition to the above requested information, Contractor shall furnish the City a written inventory of all equipment used in providing service, and shall update the inventory annually within thirty (30) Days of the Day any equipment is added to or removed from the inventory or with the next monthly report, whichever is later. D. Contractor shall maintain all of its properties, facilities and equipment used in providing services under the Contract in a safe, neat, clean and operable condition at all times. City may inspect the properties, facilities and equipment at any time to determine compliance with sanitation requirements. E. Contractor shall inspect each piece of equipment daily to ensure that all equipment is operating properly. Contractor shall perform all scheduled maintenance functions in accordance with the manufacturer's specifications and schedule. Contractor shall keep accurate records of all maintenance, recorded according to date and hours and shall make such records available to the City upon request to the extent necessary to ensure compliance of manufacturer's recommended scheduled service. F. Contractor shall repair, or arrange for the repair of, all of its equipment for which repairs are needed because of accident, breakdown or any other cause so as to maintain all equipment in a proper, safe and operable condition. Contractor shall maintain accurate records of repair, which shall include the date and hours, nature of repair and the signature of a maintenance supervisor that the repair has been properly performed. Contract for Recycling Materials CRR04.09J 3 13 of 33 13. 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. 1. Monthly reports shall be submitted electronically and shall include: (a) Date, truck number, ticket number and net weight for all incoming loads; (b) Tons of material received for Processing; (c) Revenues received for materials sold; (d) Net revenue due the City as described in sub-paragraph described above; (e) Processing payments due to Contractor; (f) Educational and promotional activities; (g) Receipt and resolution of complaints and inquiries; (i) Outstanding claims; 0) MWBE information and status; (k) Equipment added to or removed from Contractor's Processing Facility (1) Monthly payments due to Contractor or City; (m) Total amount spent as compensation to MWBE firms as requested in Section 10 herein; and (n) Such other information as required in sub-paragraphs 4 and 5 below. 2. Annual reports shall report all the above data, following the same format as the monthly report. 3. Records shall be kept on a daily, weekly, cumulative monthly, and cumulative annual basis, and shall be available to the City upon request. 4. Contractor shall file reports with the City in a timely manner, but on no less than a monthly basis, specifying all complaints, accidents or incidents while performing any duties pursuant to the terms of this Contract, outages or downtime with respect to the Processing Facility, and inspections by any regulatory agencies during the month of the report. 5. Reports shall detail the nature and reasons for these occurrences as well as all results, findings and actions taken to resolve such incidents. Contractor shall also notify the Director immediately of any fines or penalties levied and any actions that could have an adverse impact on the Contractor or the service to the City, or both. Failure to report such data shall subject the Contractor to damages described in Section 17 of this Contract. ContractJor Recycling Materials CRR04.09.13 14 of 33 14. LOCAL OFFICE, PROCESSING FACILITY AND CONTRACT ADMINISTRATION Contractor is required to maintain during the term of this Contract a fully operational business office within the Fort Worth metropolitan area. Contractor shall charge, assign or delegate to this office full authority to transact all business required in the performance of this Contract. Contractor shall designate a qualified managing agent within the City of Fort Worth or its immediately surrounding areas and shall identify same in writing to the City. All notices may be served from the City or Director upon the designated managing agent. Service upon Contractor's managing agent shall always constitute service upon the Contractor. A. Contractor's local office and Processing Facility shall be open during collection hours for City Collector(s) to deliver the City's Recyclables. At a minimum, the Contractor's Processing Facility shall be open during the hours of 7:00 a.m. through 7:00 p.m. Monday through Friday and 7:00 am through 3:00 p.m. on Saturdays, or until completion of tasks, whichever is latest. B. Contractor's local office shall have a responsible person in charge, and shall be equipped with sufficient communications technology and sufficient competent personnel to receive all communications. Contractor's communication personnel shall deal with all communications in a courteous and polite manner, and record all complaints. All complaints received on a Day preceding a holiday must be resolved prior to 9:00 a.m. on the next working Day. Contractor will have pre--recorded announcements for all after-hours communications to provide information on holiday office, Processing Facility hours and other information as reasonably requested by the Director. C. Contractor shall provide a contact person to the City, available twenty-four (24) hours, seven Days a week on an emergency basis, who is able to adequately address any and all issues which may arise under the terms of this Contract. D. Contractor will provide adequate communications technology at its Processing Facility and have it staffed with competent personnel during normal operating hours. Contact information will be clearly displayed on all recycling containers and other informational material. 15. COMPLAINTS AND NON-PERFORMANCE A. All Collector complaints shall initially be directed to the City. The Director shall notify Contractor of each complaint reported to the City. It shall be the duty of Contractor to take whatever steps may be necessary to remedy the cause of the complaint and notify the Director of its disposition within twenty-four (24) hours after receipt of the complaint by Contract for Recycling Materials CRR04.09.13 15 of 33 Contractor. Failure to remedy the cause of the complaint may be considered a breach of the Contract and subject to liquidated damages. B. The City shall supply on a daily basis to the Contractor with an electronic work order outlining all complaints. The work order will indicate the identification number, the date and hour of inquiry or complaint receipt, customer's name, address and phone number, the nature of the complaint or inquiry, and the City's contact by whom complaint or inquiry was received. When a complaint is received on the Day preceding a holiday or a weekend, it shall be promptly serviced as described above on the next working Day. C. Upon resolution of the complaint, the Contractor will close the work order and re-submit to the City. The closed work order will include: 1. Date, time and action taken to resolve complaint; and 2. Name of the person responsible to answer the complaint. 16. CONTINGENCY PLAN Within ninety (90) Days prior to the commencement of the services under the terms of this Contract, Contractor shall submit to the Director for approval a contingency plan showing the program and procedures Contractor will implement in the event of an emergency, downtime, outage, equipment failure or breakdown, labor dispute, or other situation or condition that would impair Contractor's ability to perform or provide the required services under this Contract. 17. LIQUIDATED DAMAGES For the purpose of computing damages for Contractor's failure to remedy an action or inaction listed below, it is agreed that the City may deduct from payments due to Contractor or to become due to Contractor or bill Contractor, the following amounts as liquidated damages: 1. Causing any Acceptable Material delivered to the Contractor by the City or the City Collector(s) to be delivered to any facility as Solid Waste without the express written consent of the City: $2,000 for the first occurrence and $5,000 per occurrence thereafter; 2. Failure to submit accurate reports including monthly, quarterly, annual, employment reports and others as specified in the Contract and invoices in the specified format: Non-payment of invoices until submission of an accurate and appropriately formatted invoice and complete reporting information and $250.00 per occurrence; Contract for Recycling.'Materials CRR04.09.13 16 of 33 3. Failure to maintain a staffed office during specified hours: $100.00 per occurrence; 4. Failure to notify the Director of changes in key personnel (e.g. Division President, Operations Manager, and Facility Manager) and/or to introduce such new personnel to the Director: $100.00 per occurrence; 5. Wrongfully rejecting Acceptable Material as defined herein: $1,000 for the first occurrence and $1,500 per occurrence thereafter; 6. Failure to maintain availability of Processing Facility to receive and Process City's Acceptable Material: $3,500 for the first occurrence and $6,500 per occurrence thereafter. Contractor's failure to remedy complaints as described above may be considered a failure to perform a Material Obligation. 18. EVENTS OF DEFAULT BY CONTRACTOR A. The following shall constitute events of default on the part of the Contractor: 1. Failure by the Contractor to perform any Material Obligation under the terms of this Contract, and continuance of such failure after (i) written notice thereof has been provided by the Director specifying such failure and requesting that such condition be remedied, and (ii) Contractor's failure to cure the default or immediately initiate and diligently pursue reasonable action and cure such non-performance within fifteen (15) Days after receiving notice from the Director. On the fifteenth (15) Day, City may begin termination of this Contract pursuant to Section 21 of this Contract; 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 jurisdiction or against the Contractor, if the Contractor does not take the appropriate action to dismiss said proceedings; which proceedings has not been dismissed within ninety (90) Days of the institution of such proceeding; or any action or answer by the Contractor approving, consenting to, or acquiescing in, any such proceeding; or the event of any distress, execution, or attachment upon the property of the Contractor which shall substantially interfere with its performance hereunder; or Contract for Recycling Materials CRR04.09.i 3 17 of 33 3. The following acts or omissions by the Contractor shall constitute failure to perform Material Obligations 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 and equipment to properly execute the working operations; c. Evidence that Contractor has abandoned the work; d. Failure on the part of Contractor to comply with the Contract or any requirements therein, or to comply with any of the Director requirements which are provided for in this Contract and the RFP; e. Indication that the Contractor has made an unauthorized assignment of the Contract or any funds due therefrom for the benefit of any creditor or for any other purpose; f. Failure to supply complete and accurate information as required in this Contract; and g. Failure to comply with all Applicable Law. 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, Contractor shall acknowledge receipt of such notice and shall promptly provide the City with notice of what corrective action has or shall be taken by the Contractor, within fifteen (15) Days from receipt of the notice from City. Failure to provide acknowledgement of receipt of notice, or notice of planned corrective action shall constitute an event of default notwithstanding anything to the contrary herein. 19. EVENTS OF DEFAULT BY CITY A. The following shall constitute events of default on the part of the City except to the extent excused by the occurrence of an Uncontrollable Circumstance or Contractor's Fault: 1. Failure by City to perform any Material Obligation under the terms of this Contract, and the continuance of such failure for a period of sixty(60) Days after written notice thereof has been provided by the Contractor specifying such failure and requesting that such condition be remedied if City does not either cure the default or initiate and diligently pursue reasonable actions to cure such non-performance; or Contract jor Recycling Materials CRR04.09.1 3 18 of 33 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 proceeding has not been dismissed within ninety (90) Days of the institution of such proceeding; or any action or answer by City, approving of, consenting to, or acquiescing in, any such proceeding; 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, City shall acknowledge receipt of such notice and shall promptly provide the Contractor with notice of what corrective actions has been or shall be taken by the City, within a reasonable time, in light of the circumstances. Failure to provide within fifteen (15) Days acknowledgement of receipt of notice, or notice of planned corrective action shall constitute an event of default. 20. UNCONTROLLABLE CIRCUMSTANCES A. Uncontrollable Circumstance affecting Contractor's Obligations. Contractor shall be excused for the failure to perform its obligations under the terms of this Contract 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. B. Notice of an Uncontrollable Circumstance. Contractor shall provide verbal notice of an Uncontrollable Circumstance to the Director within twenty-four (24) hours of the Contractor's knowledge of such Uncontrollable Circumstance and Contractor shall follow up with written notification within three (3) Days of the 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): Contract fir Recycling Materials CRR04.09.13 19 of 33 l. a description of the Uncontrollable Circumstance that has occurred; 2. the effect, if any, or such Uncontrollable Circumstance on Contractor's performance or other obligations under this Contract; and 3. the time when the Uncontrollable Circumstance will be abated. C. Reinstatement of Ability to Perform. After the resolution of an Uncontrollable Circumstance and the restoration of the Recycling Services, the Contractor shall provide written notice of a reinstatement of services. The City shall reinstate (or shall cause reinstatement oo unless this Contract shall have been previously terminated as provided herein. D. Uncontrollable Circumstance. Neither Contractor nor the City shall be liable for the failure to perform their duties nor for any resultant damage, loss, etc., if such failure is caused by Uncontrollable Circumstances. If such Uncontrollable Circumstances persists for more than thirty (30) Days, or if after its [their] cessation, the Contractor is unable to render full or substantial performance for a period of thirty (30) Days, the City may terminate this Contract by giving Contractor ten (10) Days advance written notice. 21. TERMINATION Upon the occurrence of an event of default, and after the expiration of the period of time provided to cure such default, with no cure being accomplished, all work and services of this Contract may be suspended on written order of the Director or the City Manager, or the Contract may be declared terminated by the City Council for any event of default by Contractor provided: (i) the City has provided Contractor written notice of such action or inaction constituting grounds for such suspension or termination as provided in Section 18 of this Contract; and (ii) Contractor fails to cure such alleged action or inaction within thirty (30) Days of Contractor's receipt of such notice. If such default is of a nature that it cannot be cured within such thirty (30) Day period, the City will not take action to suspend or terminate this Contract provided Contractor commences the curing of such action or inaction within the thirty (30) Day period and diligently pursues the curing thereafter, as determined by the Director. A copy of the suspension order or action of the City Council shall be served on Contractor's surety. When work is suspended for any cause or causes, or when the Contract is terminated, 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, and may perform the same or may, with the written consent of the City, 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 two (2) weeks 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 Contract for Recycling Materials CRR04.09.13 20 of 33 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. In case the surety does not, within the above-specified time, assume the Contract responsibilities, or that portion thereof which the City has ordered Contractor to discontinue, then the City shall have the power to perform and complete, by contract or otherwise, as it may determine, the work herein described or such part thereof as it may deem necessary, and Contractor agrees that the City shall have the right to procure equipment, labor and materials necessary for the completion of the work. The City shall not be required to obtain the lowest bid for the work of completing the Contract, but the expense to the City for same shall be the actual cost to the City of such work. In case such expenses shall exceed that amount which would have been payable under the Contract if the same had been fully completed by the Contractor, then the Contractor and its surety shall pay the amount of such excess to the City on notice from the City of the excess due. When any particular part of the work is being carried on by the City by contract or otherwise under the provisions of this Section, the Contractor shall continue the remainder of the work in conformity with the terms of the Contract. In all instances, Contractor and surety shall be liable for all costs incurred by City during the period after notice to discontinue the work has been served upon Contractor and the surety until such time as City either has elected to prosecute the work of this Contract itself or has replacement contractors in place to prosecute the work with or without additional City forces. 22. PAYMENT DISPUTES If a party disputes any amount that is payable under this Contract, the party disputing such amount 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 and the party disputing such amount shall make payment of any 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, shall be paid by the party disputing such amount within ten (10) business Days. 23. CUMULATIVE REMEDIES The rights and remedies granted in this Contract to the City and the Contractor upon an event of default 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 waiver of ContractJor Recycling Materials CRR04.09.13 21 of 33 any other violation or other breach of any of the terms, provisions, and covenants contained herein. 24. REMEDIES FOR BREACH The parties agree that, except as otherwise provided in Section 21 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 Applicable 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 or as otherwise stated herein. 25. NO WAIVER OF RIGHTS No failure by the City or by the 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, and no acceptance by the City of full or partial payment during the continuance of any such breach, 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 the Contractor, and no breach thereof, may be waived, altered or modified except by a written instrument executed and acknowledged by and delivered to the City and the Contactor. 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. This Contract may be terminated (except by expiration of the Term of this Contract) only by a written instrument of termination executed by the appropriate party and delivered to the non-terminating party. 26. SURVIVAL OF CERTAIN PROVISIONS UPON TERMINATION All representations and warranties of the parties contained in this Contract, the Contractor's indemnity obligations in this Contract with respect to events that occurred prior to the termination, the rights and obligations of the parties hereto pursuant to Sections 19, 20, 23, 24, 28, and 29 and all other provisions of this Contract that so provide shall survive the termination of this Contract. No termination of this Contract shall (1) limit or otherwise affect the respective rights and obligations of the parties hereto accrued prior to the date of such termination, or (2) preclude either party from impleading the other party in any legal proceeding originated by a third-party as to any matter occurring during the term of this Contract. Contract for Recycling Materials CRR04.09.13 22 of 33 27. INDEPENDENT CONTRACTOR It is expressly understood and agreed that Contractor shall perform all work and services described herein as an independent contractor and not as an officer, agent, servant or employee of the City; that Contractor shall have exclusive control of and the exclusive right to control the details of the services and work performed hereunder, and all persons performing the same; and shall be solely responsible for the acts and omissions of its officers, agents and employees, contractors and subcontractors; that the doctrine of respondeat superior shall not apply as between City and Contractor, its officers, agents and employees, contractors and subcontractors; and that nothing herein shall be construed as creating a partnership or joint enterprise between City and Contractor. No person performing any of the work and services described hereunder shall be considered an officer, agent, servant or employee of the City. 28. 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 CAUSED BY ANY ERROR, OMISSION, DEFECT, OR DEFICIENCY OF CONTRACTOR IN ACCORDANCE WITH THIS CONTRACT. B. CONTRACTOR DOES HEREBY RELEASE, INDEMNIFY, REIMBURSE, DEFEND, AND HOLD HARMLESS THE CITY, ITS OFFICERS, AGENTS, SERVANTS, AND EMPLOYEES FROM AND AGAINST ANY AND ALL LIABILITY, CLAIMS, SUITS, DEMANDS, OR CAUSES OF ACTION WHICH MAY ARISE DUE TO ANY LOSS OR DAMAGE TO PERSONAL PROPERTY, OR PERSONAL INJURY, AND/OR DEATH OCCURRING AS A CONSEQUENCE OF THE PERFORMANCE OF THIS CONTRACT, WHEN SUCH INJURIES, DEATH, OR DAMAGES ARE CAUSED BY THE NEGLIGENCE OF CONTRACTOR, ITS OFFICERS, AGENTS, OR EMPLOYEES, OR SUBCONTRACTORS, OR THE JOINT NEGLIGENCE OF CONTRACTOR, ITS AGENTS, OR EMPLOYEES, OR SUBCONTRACTORS, AND ANY OTHER PERSON OR ENTITY, EXCLUDING ALL PARTIES INDEMNIFIED HEREUNDER, TO THE EXTENT CAUSED BY THE NEGLIGENT ACT OR OMISSION OF CONTRACTOR. C. The obligations of the Contractor under this Section shall include, but not be limited to, the burden and expense of defending all claims, suits, and administrative proceedings (with counsel reasonably approved by the indemnified parties), even if such claims, suits or proceedings are groundless, false, or fraudulent, and in Contract for Recycling Materials CRR04.09.13 23 of 33 conducting all negotiations of any description, and paying and discharging, when and as the same become due, any and all judgments, penalties or other sums due against such indemnified persons. D. 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. E. 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. F. 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. G. In the event that a written claim for damages against Contractor or any of its subcontractors remains unsettled at the time all work on the assigned task has been completed to the satisfaction of the City Manager, as evidenced by a final inspection, final payment to Contractor shall not be recommended by the City Manager for a period of ninety (90) Days after the date of such final inspection, unless the Contractor submits written evidence satisfactory to the City Manager that the claim has been settled and a release has been obtained from the claimant involved, or offers reasonable security for payment of such claim. 1. If the claim concerned remains unsettled at the expiration of the said thirty (30) Day period, the Contractor may be deemed by the City Manager to be entitled to a semi-final payment for work completed, such semi-final payment to be in an amount equal to the total dollar amount then due less the dollar value of any written claims pending against the Contractor arising out of the performance of such work. 2. The City Manager shall not recommend final payment to Contractor if a claim for damages is outstanding for a period of six (6) months following the date of the acceptance of the work performed unless the Contractor submits evidence in writing, satisfactory to the City Manager, that: a. The claim has been settled and a release has been obtained from the claimant involved; or b. Good faith efforts have been made to settle such outstanding claims, and such good faith efforts have failed. Contract for Recycling Materials CRR04.09.13 24 of 33 3. If condition (a) above is met at any time within the six (6) month period, the City Manager shall recommend that the final payment to Contractor be made. If condition (b) above is met at any time within the six (6) month period, the City Manager may recommend that final payment to Contractor be made. At the expiration of the six (6) month period, the City Manager may recommend that final payment be made if all other work has been performed and all other obligations of the Contractor have been met to the satisfaction of the City Manager. 29. 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 require its subcontractor(s) to maintain the same Employer's Liability (EL) Insurance at minimum limits as follows: $500,000 each accident/$500,000 disease each employee/$5 00,000 disease policy limit. B. GENERAL LIABILITY INSURANCE (CGL): Contractor shall procure and shall maintain during the term of this Contract a General Liability Insurance coverage at a minimum limits of Twelve Million Dollars ($12,000,000) per occurrence combined single limit, including property damage and personal injury coverage, during effective dates of the Contract, or any renewal thereof. C. AUTOMOBILE INSURANCE: Contractor shall procure and maintain during the term of this Contract Comprehensive Automobile Liability Insurance covering all 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 following shall pertain to all applicable policies of insurance (A. through C.) 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 Contract for Recycling Materials CRR04.09.13 25 of 33 under contract with the City of Fort Worth." An equivalent clause may be acceptable in the discretion of the City of Fort Worth. Such language shall not be included in the Workers' Compensation Insurance. 2. Subcontractors shall provide their own insurance coverage and, 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 the Contract, the Contractor shall deliver to the City insurance certificate(s) documenting the insurance required and terms and clauses required. 4. The insurance certificates 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." 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 Manager for the City. 6. The deductible or self-insured retention (SIR) affecting the coverage required shall be acceptable to the Risk Manager of the City; and, in lieu of traditional insurance, alternative coverage maintained through insurance pools or risk relations groups must be also approved. 30. PERFORMANCE BOND Contractor agrees that upon the execution of this Contract and before beginning work, it shall make, execute and deliver to the City a good and sufficient Performance Bond in a form furnished by the City, to secure the faithful performance of the terms and conditions herein (the "surety"). Such bond shall be in the amount of one hundred percent (100 %) of the proposed cost of services (expense for processing) as proposed by Contractor in the first six (6) months this Contract is in effect, and shall be renewed each year thereafter throughout the term of the Contract and any renewal periods in such amount as the estimated cost of services for the six (6) months immediately following the date of renewal. Same shall be signed by the President or General Officer of the Contractor, together with the signature of the corporate secretary and the corporate seal. The surety shall be a surety company duly authorized to do business in the State of Texas, and acceptable to the City Council of the City. Contract Jor Recycling:Materials CRR04.09.13 26 of 33 In lieu of the Performance Bond, Contractor may submit an irrevocable, direct pay Letter of Credit, issued by a local banking institution, in the amount listed above, made out in favor of the City in relation with the services provided hereunder. All performance security, whether Performance Bond or Letter of Credit, must be in form and content acceptable to the City Attorney and annual documentation is required in the form of written certification from the surety company or banking institution that the said Performance Bond or Letter of Credit remains in effect each year of the Contract. In the event that the Performance Bond or Letter of Credit will cease to be in effect, the surety company or banking institution and Contractor shall notify the City at least thirty (30) Days in advance of lapse, and Contractor shall make, execute and deliver to the City a good and sufficient Performance Bond as described above and in the amount named above no less than ten (10) Days in advance of lapse of coverage. 31. RIGHT TO AUDIT Until the expiration of three (3) years after the final payment under this Contract, the City shall have access to and the right to examine any directly pertinent books, documents, papers and records of the Contractor and Guarantor involving transactions relating to this Contract. Notwithstanding anything to the contrary in this Contract, the City acknowledges it shall not have access or the right to examine financial records of the Contractor that pertain to the Guarantor without limiting the generality of the foregoing to the Guarantor's division, account or facility. Contractor further agrees to include in all its subcontracts hereunder a provision to the effect that the subcontractor agrees that the City shall, until the expiration of three (3) years after final payment under the subcontract, have access to papers and records of such subcontractor involving transactions relating to the subcontract. The term "subcontract" as used herein includes purchase orders. 32. RIGHT TO ENTER AND INSPECT Contractor shall permit the City and its authorized representatives to enter the Processing Facility at all reasonable times upon reasonable request for inspection and other reasonable purposes. Nothing herein shall create or imply any duty upon the City to make any repairs or do any work with respect to the Processing Facility and any performance thereof by the City shall not constitute a waiver of Contractor's default in failing to perform the same. Contract for Recycling Materials CRR04.09.13 27 of 33 33. HEALTH AND SANITATION Contractor shall establish and enforce in its operations and among its employees such regulations in regard to cleanliness and sanitation in the receiving, handling, storage, and transport of Recyclables and their residue as will tend to prevent the inception and spread of disease and to effectively prevent the creation of a nuisance on any property either public or private. 34. 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 Entity 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 un Uncontrollable Circumstance, the Contractor may assert any rights it may have under this Contract as is permitted for any other Uncontrollable Circumstance. 35. COMPLIANCE WITH LAWS Contractor, its officers, agents, employees, contractors and subcontractors, shall abide by and comply with all laws, federal, state and local, including the City's charter and all ordinances, rules and regulations of the City. It is agreed and understood that, if City calls the attention of Contractor to any such violations on the part of Contractor, its officers, agents, employees, contractors or subcontractors, then Contractor shall immediately desist from and correct such violation. Violation of Applicable Law may be grounds for termination pursuant to the terms of this Contract. 36. LICENSES, PERMITS AND FEES Contractor agrees to obtain, pay for, and maintain all licenses, permits, certificates, inspections and all other Governmental Approvals and other fees required by Applicable Law or otherwise necessary to perform the services prescribed hereunder. Contractor shall also pay, at its own expense, all fees necessary to the Processing and marketing of Recyclables and the Processing and transport and disposal of residuals. Contract Jor Recycling Materials CRR04.09.13 28 of 33 37. 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. This Contract is made and entered into with reference specifically to Article III of Chapter 17 of the Code of the City of Fort Worth (1986), as amended, an ordinance prohibiting discrimination, and Contractor hereby covenants and agrees that it has fully complied with all provisions of same and that no employee or employee-applicant has been discriminated against or will be discriminated against by Contractor in violation of said ordinance. Contractor warrants that it is an equal opportunity employer. In addition, Contractor, in the execution, performance or attempted performance of this Contract shall not discriminate on any prohibited basis and shall fully comply with all other applicable federal, state and local laws concerning discrimination. 38. NON ASSIGNMENT Contractor shall not assign, transfer, sublet, convey, or otherwise dispose of the Contract or the rights, title, or interest in or to the same or any part thereof without the previous consent of the City Council with concurrence of the surety. In the event Contractor does, without such previous consent, assign, transfer, sublet, convey or otherwise dispose of the Contract or of the right, title or interest therein or any part thereof, City may, at its discretion, terminate the Contract in accordance with Section 21 hereof. Consent will not be withheld unreasonably, provided that Contractor, Guarantor and surety shall not be released from their respective obligations hereunder. The City may not assign its rights and privileges under this Contract without the prior written consent of the Contractor which shall not be unreasonably withheld. 39. REPRESENTATIONS AND WARRANTIES OF EACH PARTY Each party represents and warrants to and with the other as to the Commencement Date (and such representations and warranties as of the Commencement Date shall survive the termination or expiration of this Contract), as follows: Contractfor Recycling Materials CRR04.09.13 29 of 33 e A. Each party is duly organized and existing in good standing and each is duly qualified and authorized to enter into and perform the obligations set forth in this Contract. The execution and performance of this Contract (1) have been duly authorized by all required corporate or other action of such party, (2) do not require any consent or approval not otherwise previously obtained, and (3) will not violate any judgment, order, law or regulation applicable to such party or any provisions of such party's charter, ordinances or resolutions. B. The execution of this Contract and the performance of all obligations set forth herein do not conflict with, and will not, nor with the passage of time or the giving of notice, constitute a breach of or event of default under any charter, ordinances or resolutions of the party, or any contract, indenture, mortgage, bond, instrument or Applicable Laws to which the party is subject or by which such party is bound. This Contract has been duly executed and constitutes a legal, valid and binding obligation of each party and is enforceable in accordance with its terms, except to the extent that the enforcement thereof is limited by any applicable bankruptcy, insolvency, reorganization, moratorium or other laws relating to or limiting creditors' rights generally and the application of principles of equity. C. There is no action, suit or proceeding, at law or in equity, before or by any court or Governmental Entity, pending or threatened against the party, wherein an unfavorable decision, ruling or finding would materially adversely affect the performance by the party of its obligations hereunder or the other transactions contemplated hereby, or which, in any way, would adversely affect the validity or enforceability of this Contract, or any other contract or instrument entered into by the party in connection with the transactions contemplated hereby. 40. 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. 41. NOTICES Any notices, 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 Code Compliance City of Fort Worth Contract for Recycling Materials CRR04.09.i 3 30 of 33 4100 Columbus Trail Fort Worth, Texas 76133 With a copy to: City Attorney's Office 1000 Throckmorton Fort Worth, Texas 76102 If to the Contractor: WM Recycle America, LLC Attn: Manager Recycling Division 1923 Meridian Street Arlington, Texas 76011 With a copy to: Senior Legal Counsel Waste Management 9708 Giles Austin, TX 78754 Public Sector Services Director Waste Management 520 E. Corporate, Suite 100 Lewisville, TX 75057 42. VENUE Should any action, whether real or asserted, at law or in equity, arise out of the terms and conditions of this Contract, venue for said action shall be in Tarrant County, Texas. 43. GUARANTY BY PARENT COMPANY OF CONTRACTOR A. It is hereby agreed and understood by Contractor and City that Waste Management, Inc. is the "parent company" of Contractor, or is otherwise serving as Guarantor for Contractor. ContractJor Recycling Materials CRR04.09.13 31 of 33 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 D 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 the sub-section above, 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. 44. 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. 45. NON-APPROPRIATION In the event that no funds or insufficient funds are collected, appropriated and budgeted or funds are otherwise unavailable 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. Provided, however, that this Section 45 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. Contract fir Recycling Materials CRR04.09.13 32 of 33 IN WITNESS W iuEn %JF, The parties hereto have executed this Contract and Contract this jy' day o1E � , A.D., 2013, in Fort Worth, Tarrant County, Texas. CITY OF FORT WORTH WM RECYCLE AMERICA,LLC BY: Ch aniels - �.o,-s Assistant City Manager President/Vice President ATTEST: WITNESS: 1 N tiL V,y� OPP r ary Kay er, aQlip, City Secretal7f pro° $ a���00, 0�°°O a APPROVED AS TO FORMJ[� �j'd�Cr AND LEGALITY: hrista .Lopez-Rey of Senior Assistant City Attorney Contract for Recycling Materials CRR04.09.13 33 of 33 OFFICIAL RECORD CITY SECRETARY FT.WORTH,TX ATTACHMENT A PROCEDURE FOR AUDITING THE COMMODITY MIX IN RECYCLABLES RECEIVED FROM THE CITY Background The Contract between the City and Contractor calls for the City to be paid a share of the revenue realized from the sale of recyclable commodities. In order to determine the percentage of each commodity in the single-stream recyclable material (Acceptable Material), periodic audits must be done of the inbound material. The result of the audit will be a list of commodities contained in the Acceptable Material and the percentage of each commodity in the mix. The audits will determine the percentages of the following commodities: ONP, OMG, OCC, RMP, discarded mail, home-office paper, chipboard, aluminum cans, aluminum tins, steel cans, aerosol cans, natural HDPE (rigid)plastic, colored HDPE (rigid) plastic, PET (rigid) plastic, mixed (rigid) plastic (#3 - #7), clear(flint) glass, green glass, brown(amber) glass, other miscellaneous materials recovered by processor and residue. Two auditing procedures will be used. One manual and the other mechanized. The manual audit will be done using people sorting from the pile on the floor. The mechanized audit will be done using people sorting from the conveyor system along with mechanized sorting (magnets, eddy current separators, etc.). The audits to be done in April and July of 2003 will be manual. The October 2003 audit will be mechanized. The commodity mix will be determined by the manual audits during the months of April through September of 2003. From October through December 2003, the results of the mechanized audit will be used to determine the commodity mix. In the remaining years of the Contract, four mechanized audits (quarterly) and two manual audits (semi-annually) will be completed. The results of the mechanized audit will be used to determine the commodity mix in the remaining years of the Contract. The results of the manual audit will be for information purposes and to determine any disparities between the mechanized audits and manual audits. The City reserves the right to revert to the manual audit as the sole basis to determine the commodity mix and the revenue sharing for the City, if the City deems a disparity to become frequent or great as between the mechanized and manual audits Mechanized Auditing Procedure 1. On a schedule of once per quarter(one time each three month period), Contractor will audit one inbound truckload of single-stream material collected from each of the City's five collection districts. The audits are to take place on five consecutive working days (or less if it's possible to collect from different districts on the same day). 2. The City and Contractor shall agree on the dates of the audit, and the City will have a representative present. Page 1 4/9/2013 3. Each audit shall be conducted on consecutive working days on which the City or the City Collector collects Acceptable Material. One (1) City or the City Collector's collection truck from each of the City's collection districts will be randomly selected for sorting of its load of Acceptable Material into commodities as follows: a. The City collection district to be audited will be selected on the first audit day by throwing a die. If six (6) comes up, a second throw will be done. Whatever number 1 through 5 is thrown will be the number of the first district audited. The districts will then be audited in ascending order. When District 5 has been audited, it will be followed by District 1. At least ten (10) days prior to any audit, Contractor shall meet with the City and the City Collector to coordinate collection schedules in each of the current collection districts (1-5) to ensure that each of these collection districts is represented in one of the days of the five-day audit. b. The truck to be audited from the selected district, as per 3a above, will be selected randomly as follows. The total number of trucks collecting for the City on that day from the selected district will be provided to Contractor by the City. A throw of a die shall be used to determine the truck selected for audit from the chronological order of arrival, i.e., "1" indicates the first truck to arrive at Contractor's Processing Facility, "2" indicates the second truck, etc. c. If the truck selected is Unacceptable or is a "problem load" (see Attachment B), the next collection truck to arrive will be selected for audit. 4. The collection trucks selected for audit will be weighed full and empty to capture the tare weight of the truck and the weight of the single-stream material. (Note: On-file tare weights are not acceptable for this procedure.) 5. The five truckloads of material will be deposited in an area of the Processing Facility that has been segregated from the tipping floor, which has been cleaned, so that there is no contamination of the load by other materials on the tipping floor. 6. All bunkers and receiving receptacles used in the processing system will be empty at the start of the audit. 7. The sorting machinery and the workers will process the five loads of material exactly as happens during normal plant operations. 8. After the machinery and the workers have processed all material, each commodity will be loaded into the hoppers for accurate weighing. 9. The full and empty weight of the hoppers will be captured and recorded so that the weight of each commodity can be determined. Certified scales will be used. 10. The weight of each commodity, including residue, will be divided by the weight of the full load to provide the percentage of each commodity in the load. The percentage will be calculated to two decimal places (Example: 8.22%). 11. A report will be generated detailing the results of the audit. This report will be sent to the City for review. The City will comment on the report in writing to Contractor within ten (10) days. If the City accepts the report, or if ten (10) days have passed and the City has not contested the audit results in writing to Contractor, the audit results will establish the basis of revenue to the City from the processing of Acceptable Material until completion and acceptance by the City of the next audit. 12. If the City disapproves the audit report and/or if the results of the audit appear to be in error, then either the City or Contractor may request another audit (of a different load of material) to confirm the results and establish the basis of revenue to the City until the Page 2 4/9/2013 next audit is completed and accepted by the City. The City and Contractor will agree on the dates for any additional audit, and the results of such additional audit will establish the basis of revenue to the City until the next periodic audit is completed and accepted by the City. If either the City or Contractor disputes the results of such additional audit, the dispute shall be handled in accordance with the dispute resolution provisions of the Contract. The Director and Contractor shall meet within forty-eight (48) hours of the additional audit to resolve such dispute. If the dispute cannot be resolved between the Director and Contractor, the party requesting the additional audit shall submit a written statement of evidence to the City Manager stating the cause of the dispute and evidence supporting that party's position within five (5) days of the meeting between the Director and Contractor. The City Manager shall set a hearing within ten (10) days after receiving the disputing party's notice of such dispute. At such hearing, each party shall present evidence supporting that party's position. Upon hearing evidence from both parties, the City Manager shall then make a determination to settle the dispute. Manual Auditing Procedure 13. On a schedule as specified above, Contractor shall audit one inbound truckload of single- stream material collected from each collection district in the City. 14. The City and Contractor shall agree on the dates of the audit, and the City will have a representative present. 15. Each audit shall be conducted on five (5) or less consecutive working days on which the City or City's Collector collects Acceptable Material. One (1) City or the City Collector's collection truck will be randomly selected for sorting of its load of Acceptable Material into commodities as follows: a. The City collection district to be audited will be selected on the first audit day by throwing a die. If six (6) comes up, a second throw will be done. Whatever number 1 through 5 is thrown will be the number of the first district audited. The districts will then be audited in ascending order. When District 5 has been audited, District 1 will follow it. At least ten (10) days prior to any audit, Contractor shall meet with the City and the City Collector to coordinate collection schedules in each of the current collection districts (1-5) to ensure that each of these collection districts is represented in one of the days of the five-day audit. b. The truck to be audited from the selected district, as per 3a above, will be selected randomly as follows. The City will provide the total number of trucks collecting for the City on that day from the selected district to Contractor. A throw of a die shall be used to determine the truck selected for audit from the chronological order of arrival, i.e., "1" indicates the first truck to arrive at Contractor's Processing Facility, "2" indicates the second truck, etc. c. If the truck selected is Unacceptable or is a "problem load" (see Attachment B), the next collection truck to arrive will be selected for audit. 16. The collection trucks selected for audit will be weighed full and empty to capture the tare weight of the truck and the weight of the single-stream material. (Note: On-file tare weights are not acceptable for this procedure.) Page 3 4/9/2013 17. The truckload of material will be deposited in an area of the Processing Facility that has been segregated from the tipping floor, which has been cleaned, so that there is no contamination of the load by other materials on the tipping floor. 18. A series of hoppers will be placed in the vicinity of the load. Each hopper will be marked with a sign describing which commodity is to be placed into it. 19. A group of workers will manually sort the Acceptable Material into 64-gallon carts by grade, as listed above. Once a cart is full, it will be dumped into the appropriate hopper. When a hopper fills up, it will be weighed, recorded, and emptied into a commodity staging bunker 20. The full and empty weight of the hoppers will be captured and recorded so that the weight of each commodity can be determined. Certified scales will be used. 21. The weight of each commodity, including residue, will be divided by the weight of the full load to provide the percentage of each commodity in the load. The percentage will be calculated to two decimal places (Example: 8.22%). 22. A report will be generated detailing the results of the audit. This report will be sent to the City for review. The City will comment on the report in writing to Contractor within ten (10) days. If the City accepts the report, or if ten (10) days have passed and the City has not contested the audit results in writing to Contractor, the audit results will establish the basis of revenue to the City from the processing of Acceptable Material until completion and acceptance by the City of the next audit. 23. If the City disapproves the audit report and/or if the results of the audit appear to be in error, then either the City or Contractor may request another audit (of a different load of material) to confirm the results and establish the basis of revenue to the City until the next audit is completed and accepted by the City. The City and Contractor will agree on the dates for any additional audit, and the results of such additional audit will establish the basis of revenue to the City until the next periodic audit is completed and accepted by the City. If either the City or Contractor disputes the results of such additional audit, the Director and Contractor shall meet within forty-eight (48) hours of the additional audit to resolve such dispute. If the dispute cannot be resolved between the Director and Contractor, the party requesting the additional audit shall submit a written statement of evidence to the City Manager stating the cause of the dispute and evidence supporting that party's position within five (5) days of the meeting between the Director and Contractor. The City Manager shall set a hearing within ten (10) days after receiving the disputing party's notice of such dispute. At such hearing, each party shall present evidence supporting that party's position. Upon hearing evidence from both parties, the City Manager shall then make a determination to settle the dispute. Page 4 4/9/2013 ATTACHMENT B PROCEDURE FOR IDENTIFYING AND HANDLING CONTAMINATED RECYCLABLES RECEIVED FROM THE CITY Background The Texas Administrative Code Sections 328.1 through 328.5 (30 TAC §§ 328.1-328.5) more clearly define legitimate recycling operations. One purpose of the rules is to limit the amount of non-recyclable material that can be received at a recycling facility. Contractor shall comply with such rules as part of the procedure for identifying and handling contaminated Recyclables received from the City. The Acceptable Material (See Contract Section 1) from the City, which will be received by Contractor, may be Unacceptable Material or have non-recyclable material mixed with it. This procedure defines how those loads will be identified and handled. Identification and Handling Procedure 1. Every truck containing Recyclables from the City will be (1) weighed and recorded with its full weight and (2) directed into the building and the discharge door(bubble, tailgate, etc.) opened to allow for inspection of material. 2. The "traffic supervisor" will make a visual check of the recycled material while it is still in the truck. The traffic supervisor will look for any hazardous or non-recyclable material. 3. If all material visible is deemed to be Acceptable Material, the traffic supervisor will direct the driver to dump the load in the normal area for Processing. 4. If the traffic supervisor can see material which in his/her judgment contains over 10% non-recyclable material and/or which violates TCEQ rules stated above, then the traffic supervisor will take a photograph of the questionable material. The driver will be asked to close the truck door and move the truck to another area of the building designated for dumping of"problem loads." 5. Once the "problem load" is dumped onto the floor, the traffic supervisor will call for the Operations Manager to review the situation and determine the disposition of the load. 6. The truck will go back to the scale to be weighed empty. (Note: On-file tare weights are not acceptable for this procedure.) The weight of the material that the truck was carrying will be calculated. 7. The non-recyclable portion of the load will be separated and weighed. If the non- recyclable portion is less than 10%by weight, then the load shall be processed by Contractor and the incident shall be dismissed. 8. If the non-recyclable portion is more than 10%by weight of the load, the load may be designated "contaminated." If Contractor designates the load contaminated because of the non-recyclable portion being greater than 10%by weight, the Operations Manager will notify the City, and the City will be responsible to remove the contaminated load within two hours of notification. The City may allow Contractor to assume the responsibility for discarding the contaminated load. Page 1 4/9/2013 9. If the City removes the load, then the weight of that load will not be considered an incoming load for revenue-sharing purposes. 10. If the City opts to allow Contractor to handle the contaminated load, Contractor can either discard the entire load, which will not be considered incoming material for revenue-sharing purposes or remove the non-recyclable portion of the load, in which case the City will be responsible for the cost of removing and the cost of tipping the non- recyclable portion that exceeds the 10% residue limit. 11. If Contractor decides to retain the load and remove the contaminated portion, then the portion of the load that can be recycled will be placed into a container (self-dumping hopper, 30-c. y. roll-off container, etc.), weighed and dumped onto the tipping floor in the receiving area. 12. The non-recyclable portion of the load will be loaded into the Facility's residue compactor. That material will be taken to the landfill by the franchised solid waste hauler for the City of Arlington, Texas, serving Contractor's Processing Facility. 13. The City will be charged a disposal fee of$35 per Ton (or the fee in effect at the time) for the non-recyclable portion of the load that is taken to the landfill. For the portion that is recyclable, the City will be charged the Tip Fee and be paid revenue from the sale of the commodities. 14. The non-recyclable portion of the load will be subtracted from the total amount of Acceptable Material used to calculate recycled material revenues. This procedure is not intended to cause rejection of loads of materials delivered from the City that contain incidental amounts of non-recyclable material that would normally become residue from the processing of such materials, and the City shall not be charged a disposal fee for such normal amounts of residue from processing Acceptable Material, as such cost is included in Contractor's processing fee to the City as per the Contract. Page 2 4/9/2013 ATTACHMENT C Cost Adjustment Method The Processing Fee for processing of Acceptable Material under the Contract with the City will be adjusted by the Contractor for the second and subsequent Contract Years of the Term of Contract. The Processing Fee will be adjusted upward or downward to reflect changes in the cost of operations by the Cost Adjustment Method using September indices applicable to Processing, and the methodology as set forth below, the "Cost Adjustment Date" (October 1 of each year). All indices used represent either the Employment Cost Index (ECI) or components of the Producer Price Index (PPI), and are all 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 not be applied until all data used are issued as final. If BLS changes the methodology for calculating the 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 five (5) percent per year and fifteen (15) percent in any four consecutive years. 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 Processing Fee 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 Processing Fee, 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 Processing Fee 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 Processing Fee 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 Processing Fee 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 Fixed Price (31%) Contractor has designated 31% of cost adjustment as constant with no change applied to that percentage of the Processing Fee. Industrial Handling Equipment (31%) Contractor has designated 31% of Processing Fee to be adjusted by the "Industrial Handling Equipment" component of the PPI, which is found under "Capital Equipment," commodity code 11-44" on "Table 2 — Producer Price Index and Percent Change for Selected Commodity Groupings by Stage". (http://www.bls.gov/news.release/ppi.t02.htm) Employment Cost Index (33%) Contractor has designated 33% of Processing Fee to be adjusted by the ECI, a BLS index separate from the PPI. ECI data for "South" under the "Region (3)" category on "Table 7 —Wages and Salaries (not seasonally adjusted) shall be used for the adjustment calculation. (http://www.bis.gov/news.release/eci.tO7.htm) Fuels and Related Products and Power (4%) Contractor has designated 4% of Processing Fee to be adjusted by the "Fuel and Related Products and Power" component of the PPI, which is found under the "05" Commodity Code" on "Table 3 — Producer Price Index for Selected Commodity Groupings". (http://www.bls.gov/news.release/ppi.t03.htm) No. 2 Diesel Fuel (1%) Contractor has designated 1% of Processing Fee to be adjusted by the No. 2 Diesel Fuel component of"Fuel and Related Products and Power" in the PPI, which is found on the Producer Price Index Commodity Data Table under the "05" Commodity Code, "Fuels and Related Products and Power", "05730302 No. 2 diesel fuel". http://data.bls.gov/labjava/outside.jsp?survey=wp Example Following is an example of the application of these indices with Contractor's percentages for cost adjustment. In the example below, an annual factor of -0.707% would be applied to Contractor's base Processing Fee to determine the Processing Fee for the next Contract Year. Contractor's Processing Fee Applicable Previous Current Index Index % Applied Adjustment Indices Index Index Index Value Percent to Cost Percentage Value Value Change Change Adjustment Fixed Price no escalation applied) 31% 0.0 0.0 0.0 n/a n/a Industrial Handling Equipment 31% 137.4 137.2 -0.2 -0.15% -0.045% Employment Cost Index 33% 150.2 146.3 -3.9 -2.60% -0.857% Fuel & Power Costs 4% 82.9 89.1 6.2 7.48% 0.299% Diesel Fuel 1% 116.7 104.6 12.1 10.37% 0.104% Totals: 100% -0.707% Attachment D GUARANTY AGREEMENT THIS GUARANTY AGREEMENT is made and dated as of 2013, between Waste Management, Inc., a Delaware corporation organized an existing under the laws 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 WM Recycle America, L.L.C., a limited liability company organized and existing under the laws of Delaware and duly authorized to do business in the State of Texas (the "Company"), assumed with all terms and conditions City Secretary Contract No. 28496 for Collection Services to the City, dated March 31, 2003 (the "Contract"). Company has agreed to renew the Contract and provide services for the processing of recyclable material, 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. 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 duly registered company organized and validly existing under the laws 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 2 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 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 3 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. 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; 4 t (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 20 of the Contract), or any permitted assignment, conveyance or other transfer of any of their respective interests; (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) any failure of title with respect to all or any part of the respective interests of any person in the Disposal Site and/or Processing Facility (if applicable); (7) 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 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); (8) 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; (9) any failure on the part of the Company for any reason to perform or comply with any agreement with the Guarantor; (10) 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; (11) any failure of any party to mitigate damages resulting from any default by the Company or the Guarantor; (12) the merger or consolidation of any party 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; 5 (13) any legal disability or incapacity of any party; or (14) the fact that entering into any transaction 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 (14) 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 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 (6) and (8) through (14) 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, 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 (6) any right to require a proceeding first against any person; (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 (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. 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 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. 7 ARTICLE IV GENERAL COVENANTS SECTION IV.1. 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 is the Guarantor and the conditions contained in clause (B) 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 if the successor entity (if other than the Guarantor) (a) 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) 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. (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. SECTION IV.2. ASSIGNMENT. 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 IVA. 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. 8 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: Attn:] General Counsel (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 Code Compliance, Solid Waste Division With a copy to: 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. 9 4/16/13 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. Waste Management, inc. s Guarantor By: Printed N'��Ltkt"'—A Title: I rrmoyrr I TTEST: By: 4 Jn Printed Name: 00 V1 t- 122ll Li nd aSec'.re+A,r �1�� � y Title: Accepted and Agreed to by: [City Seal] CITY OF FORT WORTH ATTEST: By: Charles Daniels fog� �r�y� °00O o 'Pip��c`Assistant City Manager 0 IftQ0000000 a'� d v OFFICIAL RECORD CITY SECRETARY FT.WORTH,TX 10 4/16/13 City of Fort Worth, Texas Mayor and Council Communication COUNCIL ACTION: Approved on 1/29/2013 CONTINUED FROM A PREVIOUS WEEK DATE: Tuesday, January 15, 2013 REFERENCE NO.: C-26066 LOG NAME: 23WM MRF 5 YEAR EXTENSION SUBJECT: Conduct a Public Hearing and Authorize Execution of the First Contract Extension and Amendment to City Secretary Contract No. 28496 with WM Recycle America, LLC, for the Processing of Recyclable Materials (ALL COUNCIL DISTRICTS) RECOMMENDATION: It is recommended that the City Council: 1. Conduct a public hearing on City Secretary Contract No. 28496 with WM Recycle America, LLC, for the processing of recyclable materials; and 2. Authorize the execution of the first contract extension and amendment to City Secretary Contract No. 28496 with WM Recycle America, LLC, to begin on April 1, 2013 and expire on March 31, 2018 with two five-year renewal options. DISCUSSION: On November 5, 2002, the City Council authorized City Secretary Contract No. 28496 with Abitibi Consolidated Corporation for the processing of single-stream recyclables (M&C C-19337) to commence on April 1, 2003. On January 5, 2010, under the terms of the bankruptcy acquisition, WM Recycle America, LLC (WM Recycle America), assumed the contract with the City and agreed to honor the terms and conditions of the existing contract. This contract is for the processing, marketing and sale of recyclables and the disposal of their residuals collected from residences and businesses by the City's contractor. The initial term of the contract was for 10 years and allowed for three successive 10-year renewal options. This extension Agreement shall amend the term of the contract to five years with two renewal options. WM Recycle America has agreed to abide by the same rebate formula as is in the current contract. Under the terms of this contract, the City is obligated to pay processing and disposal fees of approximately $34.53 and $45.00 per ton respectively. The estimated cost for the first year$1,687,815.00. The fees owed are offset by rebated revenues realized from the sale of the recyclables. It is anticipated that the rebated revenues will exceed the amount of the processing charges and provide the City with a positive cash flow on this contract of approximately $1,715,818 in the first extension year. The estimated gross of the rebated revenues from this contract over the five-year term is $8,509,083.00 excluding processing fees. MIWBE - WM Recycle America agrees to maintain its initial MMBE commitment of 25 percent that it made on the original Agreement and extend and maintain the same MMBE commitment of 25 percent to all prior amendments up to and inclusive of this First Extension and Amendment. Therefore, WM Recycle America remains in compliance with the City's MMBE Ordinance and attests to its commitment by its signature on the Acceptance of Previous MIWBE Commitment form executed by an authorized Logname: 23 WM MRF 5 YEAR EXTENSION Page I of 2 01 WpO,sentative of its company. RENEWAL OPTIONS - This contract may be renewed for up to two successive five-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 and no other terms or conditions to the contract are changed. FISCAL INFORMATION /CERTIFICATION: The Financial Management Services Director certifies that the Code Compliance Department will be responsible for the collection and deposit of funds due to the City under this contract. FUND CENTERS: TO Fund/Account/Centers FROM Fund/Account/Centers CERTIFICATIONS: Submitted for City Manager's Office by: Charles Daniels (6199) Originating Department Head: Brandon Bennett (6345) Additional Information Contact: Kim A. Mote (5153) ATTACHMENTS No attachments found. Logname: 23 WM MRF 5 YEAR EXTENSION Page 2 of 2