HomeMy WebLinkAboutContract 28358 STATE OF TEXAS §
§ CITY SECRETARY
COUNTIES OF TARRANT, § CONTRACT NO. .
DENTON AND WISE §
CONTRACT FOR COLLECTION OF RESIDENTIAL GARBAGE, REFUSE AND
SMALL BULKY WASTE,RECYCLABLES, CERTAIN COMMERCIAL SOLID
WASTE, YARD WASTE, C&D AND LARGE BRUSH AND LARGE BULKY WASTE
THIS CONTRACT is made and entered into by and between the City of Fort Worth, a
home-rule municipal corporation in Tarrant County, Texas, acting herein by and through Libby
Watson, its duly authorized Assistant City Manager, hereinafter called "City", and Waste
Management of Texas, Inc., a Texas corporation doing business in Texas,-acting herein by and
through//�.,��. h�i�.�- , its duly authorized hereinafter called
"Contractor."
THIS CONTRACT shall be for the exclusive collection of residential Garbage, Refuse and Small
Bulky Waste, Recyclables, certain Commercial Solid Waste as designated by the Director, Yard
Waste, C&D and Large Brush and Large Bulky Waste within the City unless otherwise set forth
herein or by amendment to this Contract.
KNOW ALL BY THESE PRESENTS:
1.
DEFINITIONS
In this Contract, the following words and phrases shall be defined as follows;
Affiliate shall mean any parent, subsidiary, or any other entity controlling, controlled by, or
under common control, of Waste Management, Inc., Waste Management Holdings, Inc., or
Waste Management of Texas, Inc.
Applicable Law shall mean any statute, law, constitution, charter, ordinance, resolution,
judgment, order, decree, rule, regulation, directive, interpretation, standard or similarly binding
authority, which in any case, shall be enacted, adopted, promulgated, issued or enforced that
relates to or affects the City, the Contractor, or the performance by a party of its obligations
hereunder.
Bulky Items shall mean indoor/outdoor furniture, treated lumber, construction materials,
mattresses and box springs, carpet, swing sets, plastic swimming pools, large toys, bicycles, fish
aquariums, large household appliances, and other similar items.
City shall mean the City of Fort Worth, Texas.
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City Collector shall mean the Person, firm, corporation or association or the agents or
employees thereof to whom the City shall have granted franchise or a permit, or designated as
duly authorized to collect, receive, carry, haul or transport Solid Waste and/or Recyclables
within the City.
Collection Services shall mean removal of Solid Waste or Recyclables for transport elsewhere;
or cause such to be done.
Commercial Solid Waste shall mean all types of Solid Waste generated by stores, offices,
restaurants, warehouses, and other non-manufacturing activities, excluding residential and
industrial wastes.
Commercial Waste Container shall mean a truck-loaded or truck-emptied non-disposable
container, commonly referred to as a dumpster, used for the collection of Commercial Garbage
and Refuse.
Commission shall mean the Texas Commission of Environmental Quality (TCEQ), formerly
known as the Texas Natural Resource Conservation Commission(TNRCC).
Construction and Demolition Waste (C & D) shall mean waste resulting from construction or
demolition projects; includes all materials that are directly or indirectly the by-products of
construction work or that result from demolition of buildings and other structures, including, but
not limited to, bricks, concrete, other masonry materials, paper, cartons, gypsum board, wood,
excelsior, rubber, and plastics.
Contract shall mean this document, the RFP and all Attachments to this document.
Contractor shall mean Waste Management of Texas, Inc.
Contract Year shall mean October through September of each year, except that the first
Contract Year shall be the partial year April 1, 2003 through September 30, 2003.
Cost Adjustment Method shall mean the adjustment of unit prices for collection of materials
under this Contract with the City by the Contractor for each year of the Contract. The first
adjustment shall cover the period between April 1, 2003 through September 30, 2003 according
to the procedure shown in Attachment C and shall be effective October 1, 2003. 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.
DEM shall mean the City's Department of Environmental Management.
Director shall mean the Director of DEM or his/her designated representative.
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Disabled Carryout shall mean collection of Garbage, Trash and Recyclables provided to
disabled persons at the door or another designated location rather than curbside as designated by
the Director. Bulky Items and Yard Waste shall be collected at the curb.
Disposal shall mean dumping or depositing of Solid Waste into or onto a Disposal Facility so
that the waste or any constituent thereof is introduced into the environment.
Disposal Facility shall mean a sanitary landfill or other Solid Waste Disposal Facility permitted
by TCEQ and/or other applicable regulatory agency with jurisdiction and utilized for the receipt
or final disposition of Solid Waste generated within the City.
Elective Carryout shall mean Collection of Garbage, Trash and Recyclables at the door rather
than curbside including, but not limited to, service provided to disabled persons at a rate set forth
on Attachment A. Bulky Items and Yard Waste shall be collected at the curb.
Garbage shall mean Solid Waste consisting of putrescible animal and vegetable waste materials
resulting from the handling, preparation, cooking, and consumption of food, including waste
materials from markets, storage facilities, handling, and sale of produce and other food products.
Governmental Body shall mean, as appropriate, any one or several of any court of competent
jurisdiction, the United States of America, the State of Texas and/or any appropriate jurisdiction
over activities relating to the services provided for under the terms of this Contract; or any
agency, authority, regulatory body or subdivision of any of the above as may have jurisdiction
over or power and authority to regulate the City, the Contractor, or the collection of Solid Waste
and Recyclables.
Government Approvals shall mean all licenses, permits and approvals required from any
Governmental Body for performance of the Contractor's obligations under this Contract.
GVW shall mean gross vehicle weight.
Guarantor shall mean Waste Management, Inc.
Guaranty shall mean the Guaranty Agreement, dated as of A ar _RJ, 2003 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 (U.S.E.P.A) pursuant to the
federal Solid Waste Disposal Act, as amended by the Resource Conservation and Recovery Act
of 1976, 42 USC, §6901 et seq, as amended.
Large Bulky.Waste shall mean larger discarded Bulky Items such as White Goods, mattresses,
carpets, large furniture, and oversized Yard Waste (tree trunks, root balls, large branches) but
specifically excludes Treated Wood.
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Large Brush shall mean less than ten (10) cubic yards in volume of shrub limbs, trimmings and
tree limbs or sections greater than three inches in diameter, untreated lumber (free of hardware
and nails) and other similar items, and excludes tree surgery and related work, which become the
responsibility_of the contractor hired by a Service Unit.
Letter of Credit shall mean as it is described in Section 24.
Material Obligation of City shall mean those services or duties for which this Contract calls
upon by the City to perform unless specifically noted otherwise within the terns of this Contract,
and for which, by the terms of this Contract may constitute grounds for penalties or termination
if the City fails to perform such services or duties.
Material Obligation of Contractor shall mean the acts or omissions of Contractor as set forth
in Section 14.A3. below.
Medical Waste shall mean waste generated by health-care-related facilities and associated with
healthcare activities, not including Garbage or Rubbish generated from offices, kitchens, or other
non-health-care activities. The term includes special waste from health care-related facilities
which is comprised of animal waste, bulk blood and blood products, microbiological waste,
pathological waste, and sharps as those terms are defined in 25 TAC §1.132 (Definition,
Treatment, and Disposition of Special Waste from Health-Care Related Facilities) or any
successor. The term does not include Medical Waste produced on farmland and ranchland as
defined in Agriculture Code, §252.001(6) (Definitions--Farmland or ranchland) or any successor,
nor does the term include artificial, nonhuman materials removed from a patient and/or requested
by a patient, including but not limited to orthopedic devices and implants.
MWBE shall mean a minority or women's business enterprise.
Performance Bond shall mean a corporate surety bond that guarantees compensation to the City
in the event that the City must assume the obligations or duties of the Contractor in order to
continue the services defined in the Contract.
Person shall mean any individual, partnership, 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 Facility shall mean a facility whose activities include, but are not limited to, the
separation and preparation of Solid Waste for reuse or Disposal or separation and preparation of
Recyclables or Yard Waste to produce a marketable commodity or product(s) for beneficial use.
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. However, Recyclables may
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become Solid Waste at such time, if any, as it is abandoned or disposed of rather than recycled,
whereupon it will be Solid Waste with respect only to the party actually abandoning or disposing
of the material.
Recyclables Storage Cart shall mean a leak-proof container with attached lid and wheels that
will allow the automated or semi-automated collection of Recyclables and their residue.
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).
Refuse Storage Cart shall mean a leak-proof container with attached lid and wheels that will
allow the automated or semi-automated collection of Solid Waste.
RFP shall mean the Request for Proposals No. 02-0087 and all ancillary documents of the RFP
or Contractor's proposal.
Rubbish shall mean the same as Refuse.
Service Unit shall mean a Single-Family dwelling, two-unit Multi-Family dwelling, and
commercial generator that currently sets out their municipal Solid Waste in one-way containers,
and other units such as aggregate containers and lamppost containers designated by the City for
service.
Single-Family Dwelling shall mean a building designed exclusively for residential occupancy
by not more than one family.
Small Bulky Waste shall mean smaller discarded Bulky Items less than a half cubic yard in
volume and weighing no more than forty (40) pounds such as small appliances, furniture, and
electronic equipment.
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;
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(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.
Solid Waste Container (Bag) shall mean a sealed, leak proof plastic bag of at least one (1)
millimeter in thickness.
Southeast Landfill shall mean the City-owned landfill accepting municipal Solid Waste, located
at 6900 Dick Price Road, Fort Worth, Texas.
Special Event Material shall mean material collected from City-sponsored events such as
"Great American Cleanup", "Library Book Recycling Program", and "Phone Book Redirect
Program", which produce waste and/or Recyclables.
Ton shall means a short ton of 2000 pounds.
Trash shall mean the same as Refuse.
Treated Wood shall mean wood that has been treated or preserved with chromated copper
arsenate (CCA), pentachlorophenol, or-other chemicals which have been classified as known
human carcinogens by the U. S. E. P. A.
Type IV Waste shall mean brush such as tree and shrub limbs and trimmings, C&D, and/or
Refuse that are free of putrescible waste and free of household wastes.
Unacceptable Waste shall mean any and all waste, including but not limited to Hazardous
Waste, special waste, Medical Waste and friable asbestos, the acceptance and handling of which
by City Collector would cause a violation of any permit condition, legal or regulatory
requirement, substantial damage to City Collector's equipment or facilities, or present a
substantial danger to the health or safety of the public or City Collector's employees.
Uncontrollable Circumstances includes `unanticipated events," and shall mean any act, event
or condition (excluding those which result from the willful or negligent action or inaction of a
party) occurring during the term that has, or may reasonably be expected to have, a material and
adverse effect on a right or an obligation of either or both parties to this Contract, if such act,
event or condition is beyond the reasonable control of the party relying thereon as justification
for not performing under this Contract. Uncontrollable Circumstances shall include, but are not
limited to, the following: an.act of God, landslide, lightning, earthquake, fire, explosion, flood,
ice storm, nuclear radiation, acts of a public enemy or terrorist, war, blockade, insurrection, riot
or civil disturbance or any similar occurrence, or a condemnation or other taking by or on behalf
of any public, quasi-public or private entity, but not including reasonably anticipated weather
conditions for.the geographic area of the City;
Uncontrollable Circumstances shall not include:
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(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 or
disposal of Solid Waste.
Vehicle shall mean every device in, upon, or by which Contractor uses to transport materials
and/or waste or drawn upon a public or private highway or road to perform the services and
related services described for by this Contract.
Violation shall mean any determination by a Governmental Body that the Contractor is in
violation of or not in compliance with any portion of its Governmental Approvals or Applicable
Law.
White Goods shall mean appliances such as refrigerators, stoves, washers, dryers and other large
enameled appliances, which do not contain PCB or CFC units and have been officially certified
to that effect.
Working Day shall mean Monday through Saturday and holidays, except New Year's Day,
Thanksgiving Day, and Christmas Day, if collection is for twice a week in bags. If collection is
for once a week in carts, then Working Day shall mean Monday through Friday and holidays,
except New Year's Day, Thanksgiving Day, and Christmas Day.
Yard Waste shall mean leaves, yard trimmings, yard and garden debris, Christmas trees, and
brush, including clean woody vegetative material not greater than four inches in diameter, which
results from landscaping maintenance and land-clearing operations. The term does not include
stumps, roots, or shrubs with intact root balls, and specifically excludes all Treated Wood.
2.
SCOPE OF CONTRACTOR'S SERVICES
Contractor hereby covenants and agrees to diligently and faithfully perform the services
listed below (hereinafter "Collection Services"). Contractor shall have the exclusive right to
perform the Collection Services as described herein during the term of this Agreement. These
Collection Services shall include the furnishing of all labor, tools, equipment, materials,
insurance, Performance Bonds (to the extent set forth herein), supervision and all other items
necessary to the performance of such work and services. All work and services to be performed
under this Contract shall be carried out in the following manner, at the times, in the locations and
at the unit prices specified in the Schedule for Collection Services as Attachment A.
A. Collection Services
1. Twice a week collection of residential Garbage and Refuse, contained in Solid Waste
Containers and Small Bulky Waste from Service Units within the City which house
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two or fewer dwelling units and from such other similar establishments as designated
by the Director, until such time as City has converted to once per week collection of
Garbage and Refuse in Refuse Storage Carts as determined by the Director.
2. Once a week collection of residential Garbage and Refuse, contained in City-owned
and provided Refuse Storage Carts, and Small Bulky Waste from Service Units
within the City which house two or fewer dwelling units and from such other similar
establishments as designated by the Director;
3. Once a week collection of Recyclables contained in City-owned and provided
Recyclables Storage Carts from Service Units within the City which house two or
fewer dwelling units and from such other establishments as designated by the
Director;
4. Collection of Commercial Solid Waste contained in Refuse Storage Carts or Solid
Waste Containers and Small Bulky Waste commercial Service Units designated by
the Director of Environmental Management and at such frequency as requested by
such customer;
5. Four times per year per Service Unit collection of C&D Waste and Large Brush and
Large Bulky Waste point to point on demand (and such additional collection as may
be requested by such customer);
6. Once a week collection of bundled limbs, and other Yard Waste, such as yard
trimmings in kraft bags;
7. Collection of waste in aggregate containers and lamppost containers used in special
districts in the City, as required(but not in excess of six (6) days per week); and
8. Assist the City in its public education and community information program and make
(. payments to the City in support of City's public education program in the annual
amount of three dollars ($3.00) per Service Unit, paid on a quarterly basis,
commencing April 1, 2003, subject to adjustment as set forth in Section 6B.
B. Designated Service Area
All collections under the terms of this Contract shall be in the incorporated limits of the City.
The designated service area may be enlarged from time-to-time by the Director as
annexation, disannexation or new construction occurs.
C. Delivery
All collections under the terms of this Contract, unless otherwise determined by the Director,
shall be delivered as follows:
1. Collected residential Garbage, Refuse, and Small Bulky Waste shall be delivered to
the Southeast Landfill, unless the City designates another Processing Facility or
Disposal Facility;
2. Collected Recyclables and their residue shall be delivered to Abitibi Consolidated
Inc., Recycling Division, located at 1923 Meridian Street, Arlington, Texas, unless
the City designates another Processing Facility; and
3. Collected Large Brush and Large Bulky Waste, Yard Waste, and Type IV C&D
materials shall be delivered to IESI Fort Worth C&D Landfill, located at 4144 Dick
Price Road, Kennedale, Texas, unless the City designates another Processing Facility
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or Disposal Facility.
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. Notify the Contractor of Service Units to be added or dropped from the.Contractor's
services or a change in service;
C. Timely review and respond, if necessary, to reports submitted by Contractor;
D. Make timely payments upon review and approval of invoices submitted by the
Contractor;
E. Monitor the personnel, equipment, and Vehicle standards as described in the terms of this
Contract;
F. Manage the City's call center and inform Contractor of complaints made by citizens in a
timely manner;
G. 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 Solid Waste and Recyclables for
collection under the terms of this Contract and the City's ordinances;
H. Work with Contractor to resolve complex customer service issues;
I. Review and approve all route and service delivery dates; and
I Determine, assess, and collect liquidated damages as determined by the Director.
4.
TERM
The term of the Contract shall be for a period of ten (10) years commencing on
April 1, 2003 and ending March 31, 2013. City shall have the right to extend this
Contract for up to three (3) consecutive ten-year renewal terms, provided City and
Contractor agree to extend this Contract in writing at least thirty (30) Days prior to the
end of the initial term or the then current renewal term. All renewals 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.
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5.
PAYMENT
For and in consideration of the Collection Services performed in accordance with this
Contract, City agrees to pay Contractor as follows:
A. Within fifteen Days of the end of each month during which Collection Services are
provided by the Contractor, Contractor shall submit to the Director a monthly report and
invoice as shown in Attachment B, detailing monthly total activities, to include the
services provided by Contractor under this Contract. The monthly report and invoice
shall contain the following:
1. quantities and number of loads of residential Garbage, Refuse and Small Bulky waste
collected;
2. quantities and number of loads of Commercial Solid Waste collected;
3. quantities and number of loads of Yard Waste collected;
4. quantities and number of loads of Large Brush and Large Bulky Waste collected;
5. quantities and number of loads of C&D waste collected;
6. quantities of Recyclables collected and participation rates by week;
7. quantities of Special Event Material and/or disaster debris and waste collected, if any,
and/or Recyclables from special collections, if any, requested by City. Contractor
shall not have the exclusive right to this service;
8. educational and promotional activities;
9. receipt and resolution of complaints and inquiries;
10. outstanding claims;
11. MWBE participation information and status; and
12. monthly payments due Contractor.
B. The monthly payment shall be the sum of:
1. The number of residential curbside, alley and Disabled Carry-out Service Units of the
then current number of Service Units as determined by the City on a monthly basis,
times the unit price for curbside and Disabled Carry-out service; plus
2. The number of Large Brush and Large Bulky Waste on-demand hours for service at
any Service Unit in excess of four services in any Contract Year for such Service
Unit, times the applicable hourly rate as shown on Attachment A. Contractor shall
submit a work order sheet for each location which shall detail the time it took for the
Contractor to complete such service, multiplied by the applicable hourly rate for the
equipment used. Contractor shall also submit a disposal ticket identifying the
Disposal Facility and/or Processing Facility and the weight of the materials; plus
3. The number of hours for collection of Special Event Material, times the applicable
hourly rate and Contractor shall include the work orders describing the time it took
Contractor to complete such services at each special event and the disposal tickets
identifying the Disposal Facility and/or Processing Facility and the weight of the
waste and/or Recyclables; plus
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4. Disaster debris and any other special Collection Services requested by City times the
applicable rate; plus
5. The number of Elective Carry-out Service Units on the current number of Service
Units as determined by the City on a monthly basis times the unit price for Elective
Carry-out Service; plus
6. The Contract price for collection of each commercial unit of the current number of
Service Units as determined by the City on a monthly basis. Contractor may petition
the City to alter the agreed upon price, based on changes in Refuse and/or Garbage
generation by commercial accounts served pursuant to City directive, no more
frequently than every thirty(30)Days for each such commercial account; plus
7. The number of aggregate containers and lamppost containers times the agreed upon
price for collection of such units; less
8. Any liquidated damages assessed by the City as per Section 18.
C. Payment shall be made to the Contractor within thirty (30) Days from receipt and
approval by the City of the Contractor's final monthly statement of services provided and
Contractor's monthly report. Service Unit prices for the first year of the term of this
Contract shall be the amounts as specified in Attachment A, namely:
1. Once weekly collection of (i)residential Garbage, Refuse and Small Bulky Waste
from City-owned and provided Refuse Storage Carts. Should such residential
Garbage, Refuse and Small Bulky Wastes exceed the quantity of the Refuse
Storage Cart at any residential Service Unit, the resident will be required to secure
a second Refuse Storage Cart to contain such materials. Only after the second
Refuse Storage Cart has been secured shall the Contractor have an obligation to
collect such materials that are placed outside the confines of the Refuse Storage
Carts (such materials to be more than ''/2 cubic yard of debris, bagged or boxed to
enable lifting, and weigh not more than 40 pounds); (ii) Recyclables from City-
owned Recyclables Storage Carts; and (iii) bundled limbs, and Yard Waste in
kraft bags. Service Unit price shall be seven dollars and seventy-nine cents
($7.79) per month; and (iv) Commercial Solid Waste in up to one Refuse Storage
Cart from City designated Service Units at the Service Unit price of ten dollars
and fifty cents ($10.50) per month with price increments for additional Refuse
Storage Carts and/or collection frequency thereafter as shown on Attachment A
(commercial collection frequency may be increased as requested by customer). In
addition, Contractor shall provide four times per year, per Service Unit, point-to-
point collection of uncontainerized C&D Waste and Large Brush and Large
Bulky Waste, at no additional charge and on demand, on a fee basis as shown on
Attachment A, thereafter;
2. Twice weekly collection of residential Garbage and Refuse from Solid Waste
Containers (Bag) and Small Bulky Waste; once weekly collection of (i)
Recyclables from City-owned Recyclable Storage Carts and (ii) bundled limbs,
and Yard Waste in kraft bags; and four times per year point-to-point collection of
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uncontainerized C&D Waste and Large Brush and Large Bulky Waste at no
additional charge and on demand, on a fee basis, thereafter as shown on
Attachment A; Commercial Solid Waste from City designated commercial
Service Units at the Service Unit price of ten dollars and fifty cents ($10.50) per
month up to five Solid Waste Containers with price increments for additional
Solid Waste Containers and/or increase in service frequency thereafter as shown
on Attachment A. Service Unit price shall be eight dollars and forty six cents
($8.46) per month for residential Service Units and Disabled Carryout Service
Units.
D. Aggregate containers and lamppost containers used in special districts, commercial
establishments using one way, containers, Special Event Materials, disaster debris and
other special collections requested by the City shall be charged in the amounts as
described in Attachment A.
E. The public education program payment specified in Section 2.A.8 shall be made in equal
amounts paid on a quarterly basis with the quarterly payments made on or before July 1 st,
October 1 st, January 1 st, and April 1 st of each year that the Contract is in place.
6.
UNIT PRICE ADJUSTMENT
A. Contractor hereby agrees to accept payments, adjusted by the Cost Adjustment Method 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.
B. Contractor shall contribute three dollars ($3.00) per Service Unit to the City in the first
year of the Contract commencing on April 1, 2003, as provided in Section 2.A.8 above.
In each succeeding year on the anniversary date, this amount will be adjusted by the
percentage change in the CPI-U (Consumer Price Index for Urban Wage Earners and
Clerical Workers) for the Dallas-Fort Worth MSA during the preceding twelve (12)
months. If this method yields a decrease, Contractor's contribution to this education
program will remain the same as the previous year. Under no circumstance, will this
payment decrease.
7.
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.
Collection shall be provided every scheduled Day, including bad weather Days, unless the
Director informs Contractor of a suspension of service.
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8.
LABOR FORCE
A. Local labor shall be used by Contractor and first preference to fill positions available
subsequent to the date of this Contract will be given to any qualified City employees who
are displaced as a result of this Contract. The Contractor shall notify the Director of
position openings in all service areas awarded to the Contractor as well as other positions
within the company as they become available through July 31, 2003. The Contractor will
further provide start dates for all such positions to be filled. The Director shall provide to
the Contractor lists of displaced City workers who desire to be interviewed for
employment. Contractor shall interview all listed workers qualified for the available
positions. Contractor shall make every attempt to employ these workers in positions
available as a result of this Contract as well as other company positions if available in the
City and at wages and benefits comparable to those the City provided to the employee.
Contractor shall, with respect to each interviewed displaced worker, provide to the
Director the interview date, positions offered, position accepted, salary, and hiring, date.
If any interviewed displaced worker is not employed, the Contractor shall provide to the
Director (if such information is released by such displaced worker), prior to filling the
position, written justification for not employing the displaced worker, such as failure to
pass company physical, drug screening, or lack of qualifications appropriate to the
position; provided, however, that Contractor shall not be required to provide information
to City which is prohibited by law. Hiring and employment status information is required
to be delivered to the Director no later than 15 Days after the filling of each position and
a comprehensive hiring and employment status report shall be delivered to the Director
by April 1, 2003,.with an update on May 1, 2003. Contractor shall provide summary
reports of the employment history of hired displaced City workers each April 1 thereafter
during the term of this Contract.
B. Contractor shall provide fifteen (15) Days' notice after 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 may bring in from outside the
City of Fort Worth its key personnel. All other workers, including equipment operators,
vehicle drivers and laborers may be imported only after the local supply of competent
personnel is reasonably exhausted by reviewing lists provided by the Director and
newspaper advertising. 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.
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9.
PERSONNEL STANDARDS
A. Contractor shall furnish such qualified drivers, mechanical, supervisory, clerical and
other personnel as may be necessary to provide the services required in a safe,
economical and efficient manner. All drivers shall be trained and qualified in the
operation of waste collection Vehicles and must have in effect a valid commercial drivers
license, of the appropriate class, issued by the Texas Department of Public Safety.
B. Contractor shall provide suitable operational and safety training for all of its employees
who utilize or operate Vehicles or equipment for collection of materials under the
Contract. Contractor shall train its employees in Solid Waste collection to identify, and
use reasonable effort not to collect Hazardous Waste or infectious 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 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, and
shall instruct collection crews to perform the work as quietly as possible. If any
employee is found not to be courteous or not to be performing services in the manner
.`; required by the Contract, Contractor shall take all appropriate corrective measures. If
City has notified Contractor of a complaint related to discourteous or improper behavior,
Contractor will consider reassigning the employee to duties not entailing contact with the
public while Contractor is pursuing its investigation and corrective action process.
E. Contractor shall designate qualified employees as supervisors of field operations.
Supervisors will be in the field inspecting Contractor's work and will be available by
radio or phone during the Contractor's hours of operation to handle calls and complaints
from the City, or to follow up on problems and inspect Contractor's operations.
F. All employees of the Contractor performing work under the Contract shall be uniformed,
showing their association with the Contractor while operating in the field. Contractor
shall provide a list of current employees, contractors and subcontractors to City upon
request.
G. Contractor will train its employees as to the City's Solid Waste ordinance and collection
rules and regulations, ensuring employees can answer questions from citizens and follow
the City's collection rules at the curb. This training is to be ongoing and reach new hires.
Contractor employees will also leave notices of improper set-out when applicable.
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10.
VEHICLE AND EQUIPMENT STANDARDS
A. General
1. Contractor shall provide a fleet of collection Vehicles sufficient in number and
capacity to efficiently perform the work required by the Contract in strict accordance
with its terms. Contractor shall have available on Working Days sufficient back-up
Vehicles for each type of collection and Vehicles to use to respond to complaints and
emergencies. No Vehicle used in servicing this Contract shall be more than ten (10)
years old as of April 1, 2003, or the date service commences under the Contract,
whichever comes first. City representative(s) shall inspect all Vehicles to be used in
servicing this Contract no later than thirty (30) Days before Contract begins and each
year of the Contract. City shall notify Contractor about the failure of any Vehicle to
meet this requirement within ten (10) Days of inspection. Any Vehicle reaching ten
(10) years of age during the term of the Contract shall be taken out of service for
purposes of the Contract services in compliance with the Contract.
2. Contractor shall furnish and maintain all such equipment in accordance with the
standards set out in the RFP, and as is considered to be necessary for prosecution of
the work in an acceptable manner and at a satisfactory rate of progress.
B. List
Contractor shall identify in writing to the Director, by area, a listing of-
1. Number of routes, number of Vehicles and size of Vehicles to be proposed by
service type;
2. Number of spare Vehicles to be on hand for back-up of front-line trucks; and
3. Designated unique Vehicle number, description, and legal GVW of each Vehicle.
C. Specifications
1. All Vehicles used by Contractor and Contractor's subcontractor(s) in providing
collection of materials under the Contract shall be designed to prevent leakage,
spillage or overflow. All such Vehicles shall comply with U.S. Environmental
Protection Agency noise emission regulations and other applicable noise control
regulations. Contractor shall also ensure that GVW of all Vehicles, even when
loaded, does not exceed Vehicle license limitations to protect the highways of the
City.
2. All equipment, tools, and machinery used for handling materials and executing any
part of the work shall be subject to approval by the Director and 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(s) shall be such that no injury to the workers
or property should result from its proper use. Contractor shall be responsible for
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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.
D. Vehicle Identification
Contractor's name, local telephone number, City's call.center telephone number and a
unique Vehicle identification number designated by Contractor for each Vehicle shall be
prominently displayed on all Vehicles. The Contractor's name, local telephone number,
City's call center telephone number shall be displayed in letters and numbers no less than
four(4) inches high and the identification number shall be displayed in letters and
numbers no less than two and one-half(2 %z) inches high. Contractor shall not place the
City's logo omits Vehicles.
E. Vehicle and Equipment Inventory
In addition to the above requested information, Contractor shall famish the City a written
inventory of all Vehicles and equipment used in providing.service, and shall update the
inventory annually within fifteen (15) Days of the Day any Vehicle or equipment is
added to or removed from the inventory. The inventory shall list. all Vehicles by
manufacturer, ID number, date of acquisition, type, and capacity.
F. Cleaning and Maintenance
f."...: Contractor and Contractor's subcontractor(s) shall maintain all of its properties, facilities
and equipment used in providing service under the Contract in a safe, neat, clean and
operable condition at all times. Vehicles used in the-collection of materials under the
Contract shall be thoroughly washed on a regular basis so as to present a clean
appearance. City may inspect Vehicles at any time to determine compliance with
sanitation requirements.
G. Inspection
Contractor and Contractor's subcontractor(s) shall inspect each Vehicle and each piece of
equipment daily to ensure that all equipment is operating properly and complies with
Applicable Law. Vehicles which are not operating properly or do not comply with
Applicable Law shall be taken out of service until they are repaired and do operate
properly and comply with Applicable Law. Contractor and Contractor's subcontractor(s)
shall perform preventive maintenance and all scheduled maintenance functions in
accordance with the, manufacturer's specifications and schedule. Contractor and
Contractor's subcontractor(s) shall keep accurate records of all Vehicle maintenance,
recorded according to date and mileage, and shall make such records available to the City
upon request to the extent necessary to ensure compliance with manufacturer's
recommended scheduled Vehicle service.
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H. Repair
Contractor and Contractor's subcontractor(s) shall repair, or arrange for the repair of, all
of its Vehicles and equipment for which repairs are needed because of accident,
breakdown or any other cause so as to maintain all equipment in a safe and operable
condition. Contractor and Contractor's subcontractor(s) shall maintain accurate records
of repair, which shall include the. date/mileage, nature of repair and the signature of a
maintenance supervisor that the repair has been properly performed.
I. Storage
Contractor and Contractor's subcontractor(s), as applicable, shall arrange to store all
Vehicles and other equipment in safe and secure location(s), where applicable, in
accordance with City's applicable zoning regulations.
11.
MWBE REQUIREMENTS
In keeping with the City's Minority/Women Business Enterprise (MWBE) ordinance,
Contractor agrees to the following:
A. A minimum of 25% of the total dollar value of this Contract will.be.paid as compensation
to certified MWBE firms,pursuant to the City's ordinance.
B. Contractor will, during the term of this Contract, provide City with monthly reports
detailing its compliance with the:Tequirements for MWBE participation, including but not
limited to the activities of the MWBE and the dollar value of those services, as required
by the City. City shall have a right of access to any and all books, records and documents
which relate to MWBE subcontracts 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.
12.
CONTINGENCY PLAN
Within ninety (90) Days of 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 collect Solid Waste and Recyclables, respectively, from the City or
otherwise perform the services required under the terms of this Contract.
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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 and shown in
Attachment B. These reports shall include data for all materials handled from its services to the
City.
A. Monthly reports shall include the data as described in Section 5 of this Contract.
B. Annual reports shall report all the above data, following the same format as the monthly
report.
C. Records shall be kept on a daily, weekly, cumulative monthly, and cumulative annual
basis, and shall be available to the City upon request.
D. 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, and inspections by
any regulatory agencies during the month of the report.
E. 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 service to the City, or both. Failure to report such
data shall subject the Contractor to damages described in Section 18 of this Contract.
14.
EVENTS OF DEFAULT BY CONTRACTOR
A. The following shall constitute events of default on the part of the Contractor except to the
extent caused by the occurrence of an Uncontrollable Circumstance or City's fault unless
otherwise specified herein:
1. Failure by the Contractor to perform any Material Obligation of Contractor under the
terms of this Contract, and 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(provided, if such failure is
of a nature that it cannot be cured within such fifteen(15) day period, Contractor shall
not be in default if Contractor commences the curing of such failure within such
fifteen(15) day period, and diligently pursues the curing thereof and both City and
Contractor agree that the failure cannot be cured in fifteen(15) Days); or
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2. The Contractor being insolvent or bankrupt or ceasing to pay its debts as they mature
or making an arrangement with or for the benefit of its creditors or consenting to or
acquiescing in the appointment of a receiver trustee, or liquidator for a substantial
part of its property; or a bankruptcy, winding up, reorganization, insolvency,
arrangement, or similar proceeding instituted by the Contractor, under the laws of any
Governmental Body or against the Contractor, if the Contractor does not take the
appropriate action to dismiss said proceedings;which proceedings have not been
dismissed within ninety(90) Days of the institution of such proceedings; or any
action or answer by the Contractor approving, consenting to, or acquiescing in, any
such proceedings; or the event of any distress, execution, or attachment upon the
property of the Contractor which shall substantially interfere with its performance
hereunder; or
3. The following acts or omissions by the Contractor shall constitute failure to perform a
Material Obligation of Contractor under this Contract:
a. Failure of Contractor to commence work operations within the time specified
in the Contract.
b. Failure of Contractor to provide and maintain sufficient labor, Vehicles and
equipment or licenses,permits and necessary approvals from City or a third
party to properly and legally execute the working operations.
c. Evidence that Contractor has abandoned the work.
d. Evidence that Contractor has become insolvent or bankrupt, or otherwise
financially unable to carry on the work satisfactorily.
e. Failure on the part of Contractor to comply with any material requirements of
the Contract such as failure to maintain insurance or the Performance Bond or
to comply with any of the Director of Environmental Management's material
requirements which are provided for in this Contract.
f. Indication that the Contractor has made an unauthorized assignment of the
Contract or any funds due thereof for the benefit of any creditor or for any
other purpose.
g. Failure to supply complete and accurate information as required in this
Contract.
h. Failure to maintain required level of MWBE participation.
i. Failure to indemnify the City as required herein.
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j. Falsifying records or reports to the City, State or Federal governments.
k., Failure to remedy the cause of a complaint as described in Section 17, subject
to the provisions of Section 17.E below.
1. Failure to comply with Applicable Law that affects Contractor's ability to
perform this Contract as reasonably determined by the Director.
B. City shall, as soon as practical, notify Contractor of any failure on the Contractor's part to
comply with the terms of this Contract. After receipt of notice from the City of an event
of default set forth in Section 14.A above, Contractor shall acknowledge receipt of such
notice by telephone, facsimile, or email within four (4) hours. Contractor shall provide
the City with verbal notice of what corrective action has or shall be taken by the
Contractor and shall follow up with written notice describing the same along with any
additional relevant information, within forty-eight (48) hours. Failure to- provide
acknowledgement of. receipt of notice, or plan of corrective action, within the above
mentioned time period(s) shall constitute an event of default by the Contractor.
15.
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
unless otherwise specified herein:
1. A failure by City to timely 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 notwithstanding
Section 34; or
2. City being insolvent or bankrupt or ceasing to pay its debts as they mature or making
an arrangement with or for the benefit of its creditors or consenting to or acquiescing in
the appointment of a receiver, trustee or liquidator for a substantial part of its property; or
a bankruptcy, winding up, reorganization, insolvency, arrangement or similar proceeding
instituted by City under the laws of any jurisdiction or against City, if City does not take
appropriate action to dismiss said proceedings, which proceedings have not been
dismissed within ninety (90)Days of the institution of such proceedings; or any action or
answer by City, approving of, consenting to, or acquiescing in, any such proceedings; or
the levy of any distress, execution or attachment upon the property of City, which shall
substantially interfere with its performance hereunder.
B. Contractor shall, as soon as practical, notify City of any failure on the City's part to
comply with the terms of this Contract. After receipt of notice from the Contractor, City
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shall acknowledge receipt of such notice and shall promptly provide the Contractor with
notice of what corrective action has or shall be taken by the City, within a reasonable
time, in light of the circumstances. Failure to promptly provide acknowledgement of
receipt of notice, or notice of planned corrective action, shall constitute an event of
default by the City.
16.
LOCAL OFFICE AND CONTRACT ADMINISTRATION .
Contractor shall 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 shall be open during collection hours so that customers can lodge
complaints, requests for information, requests for service, etc. At a minimum, the
Contractor's local office shall. 66 open during the hours of 8:00 a.m. and 5:00 p.m.
Monday through Friday, and 8:00 a.m. and 3:00 p.m. on Saturdays, or until completion of
tasks, whichever is latest. Contractor shall perform Collection Services from the Service
Units between the hours of 7 a.m. and 7 p.m.
B. Contractor's local office shall have a responsible person in charge during collection hours
on Working Days, 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. Contractor shall resolve all complaints in an
expeditious manner within the following twenty-four (24) hours, excluding non-Working
Days and hours. Contractor will have pre-recorded announcements for all after-hours
communications to provide information on holiday pickups and office hours as well as
other information the Director may reasonably require.
17.
COMPLAINTS AND NON-PERFORMANCE
A. All service complaints received by the City's call center shall initially be directed to
Contractor and shall be resolved (or resolution initiated) within twenty-four (24) hours,
excluding non-Working Days and hours. On a monthly basis, Contractor shall supply the
Director with copies of all complaints on a format specified in Attachment D, indicating
the date and hour of inquiry or complaint receipt, the nature of the complaint or inquiry,
and the manner and timing of resolution. Complaints received after 3:00 p.m. on Saturday
or a Day preceding a holiday must be resolved prior to 9:00 a.m. on the next Working
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Day. When a complaint is received on the Day preceding a holiday or a weekend, it shall
be promptly serviced on the next Working Day.
B. The Director shall notify Contractor of each complaint reported to the City throughout
each Day. 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, excluding non-Working Days and hours, after receipt of the
complaint by Contractor. The Director shall provide to Contractor a list of all complaints
received by the City each Day; Contractor may obtain this list from the Director or his
representative each Day after 4:30 p.m.
C. Contractor shall provide the Director with a full explanation of the disposition of any
complaint involving a customer's claim of damage to private property or personal injury
as the result of actions of Contractor's employees, agents, or subcontractors in the format
specified in Attachment D as soon as possible, with additional information provided as
requested by the Director and shall also include such information in the monthly report to
the City. _
D. Contractor shall work with the City to notify all customers about complaint procedures,
rules and regulations, and Day(s) of collection on an annual basis and whenever there is a
change in service, Day(s) of collection, procedures, etc. commencing in the first month of
the Contract and thereafter whenever a change in service is made. Notice is to be in the
form as designated by the Director distributed by Contractor to all premises served by
Contractor. Such notice methodology and any materials must be approved by the Director
prior to distribution and conform to all legal requirements for accessibility.
E. Notwithstanding anything contained herein to the contrary, Contractor's failure to
remedy the cause of the complaint, or due to events described in Section 18 below, shall
not be considered a material breach of this Contract or breach of a Material Obligation of
Contractor , and thereby not an event of default, UNLESS Contractor's failure to
perform or act in accordance with the terms of this Contract occurs in a consistent
manner as reasonably determined by the Director. Notwithstanding anything
contained in this Contract to the contrary, if the Director determines that failure has
occurred in a consistent manner"and the notification.procedures as described in Section
14B have been met, then the Contractor's failure to remedy complaints as described
above may be considered a failure to perform a Material Obligation of Contractor.
18:
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, the following amounts as liquidated damages:
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(1) Failure to clean up.spilled Garbage, Refuse, or other Solid Waste resulting
from loading and/or transporting - each incident at the same premises:
fifty dollars ($50.00).
(2) Failure to clean up spilled Recyclables resulting from loading and/or
transporting- each incident at the same premises: fifty dollars ($50.00).
(3) Failure or neglect to collect Garbage, Refuse or other Solid Waste from
any,premises at those times as provided by this Contract within twenty-
four (24) hours, excluding non-Working Days and hours - each failure or
neglect or repeated instance at same premises: fifty dollars ($50.00).
(4) Failure or neglect to collect Recyclables from any premises at those times
as provided by this Contract within twenty-four(24)hours, excluding non-
Working Days and hours - each failure or neglect or repeated instance at
same premises: fifty.dollars ($50.00):
(5) Failure or neglect to correct chronic problems in any category of service,
including failure to meet any of the requirements as listed in the RFP
(chronic shall mean three or more similar incidents at the same premises)-
each instance: five hundred dollars ($500.00)_
(6) Chronic use of Vehicles for. Solid Waste or Recyclables collection for
which the manufacturer's gross allowable vehicle weight exceeds the
limits allowable by City ordinance: fifty dollars ($50.00)per occurrence.
(7) Failure to provide Solid Waste Collection Service at least once during a
week for Refuse Storage Carts and at least twice a week for bags, except
in cases of holidays or during an Uncontrollable Circumstance: fifty
dollars($50.00) per occurrence per Service Unit.
(8) Failure to provide Recyclables Collection Service at least once during a
week, except in cases of holidays or an Uncontrollable Circumstance: fifty
dollars ($50.00)per occurrence per Service Unit.
(9) Failure to provide service for Large Brush and Large Bulky Waste for
collection on demand within six (6) Days of request during the months of
March'through September and within three (3) Days within the months of
October through February as required under the terms of this Contract and
the RFP: fifty dollars ($50.00) per Day per Service Unit until service is
completed.
(10) Failure to submit accurate reports, including monthly, quarterly, annual,
employment reports and others as specified in the Contract and invoices in
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the specified format: non-payment of invoices until submission of an
accurate and appropriately formatted invoice and complete reporting
information.
(11) Failure to tag non-complying brush piles or other non-complying set-outs,
Solid Waste Containers (Bag) and Refuse and Recyclables Storage Carts,
and/or to provide a copy of such notice to the Director: fifty dollars
($50.00)per occurrence.-
(12) Failure to maintain a staffed office'during specified hours: fifty dollars
($50.00)per occurrence.
(13) Failure to notify the DEM of changes in key personnel (e.g. Division
President, Operations Manager, and Facility Manager) and/or to introduce
such new personnel to the DEM: fifty dollars ($50.00)per occurrence.
19.
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. Uncontrollable Circumstance affecting City's Obligations.
City shall be excused for the failure to perform its obligations under the terms of this
Contract if such failure results from the occurrence'-6f an Uncontrollable Circumstance.
City shall-seek diligently and in,good faith to perform its obligations, notwithstanding the
occurrence of an Uncontrollable Circumstance, to mitigate the adverse effects of an
Uncontrollable Circumstance, and to overcome an Uncontrollable Circumstance as soon
as practicable.
C. 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):-
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1. a description of the Uncontrollable Circumstance that has occurred; and
2. the effect, if any, of such Uncontrollable Circumstance on Contractor's
performance or other obligations under this Contract.
D. Reinstatement of Ability to Perform.
After the resolution of an Uncontrollable Circumstance and the-restoration of Collection
Services, the Contractor shall provide written notice of a reinstatement of Collection
Services. The City shall reinstate the Collection Services (or shall cause reinstatement
of) unless this Contract shall'have been previously terminated as provided herein.
E. Uncontrollable Circumstance.
Neither Contractor nor the City shall be liable for the failure to perform their duties nor
for any resultant damage, or loss, 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.
20.
TERMINATION
All work and services of this Contract may be suspended on written order of the Director
of Environmental Management or the City Manager, or the Contract may be declared terminated-
r: by the City Council for any event of default by Contractor or Contractor's failure to perform a
Material Obligation of this Contract; provided, (i) the City has provided Contractor written
notice of such action or inaction constituting grounds for such suspension or termination, and (ii)
Contractor fails to cure such alleged action or inaction within thirty (30) Days of Contractor's
receipt of such notice. If such event of 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 any 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 five
(5) Days after the written notice to discontinue the work has been served upon Contractor and
upon the surety or its authorized agent. The surety, in such event, shall assume Contractor's place
in all respects-and shall be bound by all the terms and conditions of this Contract. Surety shall be
paid by the City for all work performed by it in accordance with the terms of the Contract.
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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.
21.
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, employees,
contractors and subcontractors; that the doctrine of respondent superior shall not apply as
between City and Contractor, its officers, agents, 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.
22.
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
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CRL Final Document 01.07.03
26
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 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 LEARNIN G 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.
23.
INSURANCE
Contractor shall not continence 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.
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27
A. WORKERS' COMPENSATION INSURANCE: Contractor shall maintain, during the
term of this Contract, Workers' Compensation Insurance at statutory limits on all of
its employees to be engaged in work under this Contract, and for all subcontractors.
Employer's Liability (EL) Insurance shall also be maintained, at minimum limits as
follows: $500,000 each accident/$500,000 disease each employee/$500,0.00 disease
policy limit.
B. GENERAL LIABILITY INSURANCE (CGL): Contractor shall procure and shall
maintain during the term of this Contract a Commercial General Liability Insurance
Policy at a minimum limits as Two Million Dollars ($2,000,000) per occurrence with
an aggregate of Five Million ($5,000,000) Dollars combined single limit, including
property damage and personal injury coverage, during effective dates of the Contract,
or any renewal thereof, in order to protect and save the City harmless against any and
all claims for damage to person, persons, or property arising from the Collection
Services as described in this Contract. Contractor shall also provide excess
Commercial General Liability in the amount of Ten Million Dollars ($10,000,000).
C. AUTOMOBILE INSURANCE: Contractor shall procure and maintain during the
term of this Contract Comprehensive Automobile Liability Insurance covering all
Vehicles involved with Contractor's operations under this Contract. The minimum
limits of liability coverage shall be in the amount of Two Million Dollars
($2,000,000) per occurrence combined single limit, during the effective dates of
Contract and any renewal period. The named insured and employees of Contractor
shall be covered under this policy. The City of Fort Worth shall be named an
Additional insured on Endorsement TE 9901 or equivalent, as its interests may
appear.
D. ENVIRONMENTAL IMPAIRMENT LIABILITY (EIL) AND/OR POLLUTION
LIABILITY - $10,000,000 per occurrence. EIL coverage(s) must be included in
policies listed in items above; or, such insurance shall be provided under separate
policies. Liability for damage. occurring while loading, unloading and transporting
materials collected under the Contract shall be included under the Automobile Liability
insurance or other policy(s).
NOTE: BETWEEN A AND D ABOVE,ANY POLLUTION EXPOSURE,INCLUDING
ENVIRONMENTAL IMPAIRMENT LIABILITY,ASSOCIATED WITH THE SERVICES AND
OPERATIONS PERFORMED UNDER THIS CONTRACT SHALL BE COVERED;IN ADDITION TO
SUDDEN AND ACCIDENTAL CONTAMINATION AND/OR POLLUTION LIABILITY COVERAGE,
THERE MUST BENON-SUDDEN AND NON-ACCIDENTAL CONTAMINATION AND/OR LIABILITY
FOR GRADUAL EMISSIONS AND CLEAN-UP COSTS.
The following shall pertain to all applicable policies of insurance(A. through D.) listed above:
1. Additional Insured Clause: "The City of Fort Worth, its officers, agents,
employees, and representatives are added as additional insureds as respects
operations and activities of, or on behalf of the named insured, performed under
CONTRACT FOR COLLECTION SERVICES
CRL Final Document 01.07.03
28
Contract with the City of Fort Worth." An equivalent clause may be acceptable in
the discretion of the City.
2. Subcontractors shall be covered under the Contractor's insurance policies or they
shall provide their own insurance coverage; and, in the latter case, documentation
of coverage shall be submitted to the Contractor prior to the commencement of
work and the Contractor shall deliver such to the City.
3. Prior to commencing work under this Contract, the Contractor shall deliver to the
City of Fort Worth insurance certificate(s) documenting the insurance required
and terms and clauses required.
4. Each insurance policy required by this Contract shall contain the following
clauses: "This insurance shall not be canceled, limited in scope or coverage, or
non-renewed until after thirty (30) Days prior written notice has been given to the
Director of Environmental Management, City of Fort Worth, 1000 Throckmorton,
Fort Worth, Texas 76102." Note: Written notice can be by Contractor or
insurance company.
5. The insurers for all policies must be approved to do business in the State of Texas
and be currently rated in terms of financial strength and solvency to the
satisfaction of the Risk Management for the City of Fort Worth.
6. The deductible or self-insured retention (SIR) affecting the coverage required
shall be acceptable to the Risk Manager of the City of Fort Worth; and, in lieu of
traditional insurance, alternative coverage maintained through insurance pools or
risk relations groups must be also approved.
24.
PERFORMANCE BOND
Contractor agrees that upon the execution of this Contract and before beginning work, it
shall make, execute and deliver to the City of Fort Worth a good and sufficient Performance
Bond in a form furnished by the City, to secure the faithful performance of the terms and
conditions herein. Such Performance Bond shall be in the amount of 100 percent of the
proposed cost of services as proposed by Contractor in the first year this Contract is in effect, and
shall be renewed each year thereafter throughout the term of the Contract and any renewal
periods in such amounts as the City shall require, but not less than the estimated cost of services
for the following twelve (12) months during which the services are to be performed taking into
consideration Contractor's adjusted prices then in effect. 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 of Fort Worth.
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CRL Final Document 01.07.03
29
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 of Fort Worth.
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 30 Days in advance of lapse, and
Contractor shall make, execute and deliver to the City of Fort Worth a good and sufficient
Performance Bond or replacement Letter of Credit as described above and in the amount named
above no less than five (5) Days in advance of lapse of coverage.
25.
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.
(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 E of this Contract. The Contractor agrees that the person or entity executing the
Guaranty on behalf of its "parent company" or Guarantor shall be a person or entity authorized to
bind legally the parent company or Guarantor to such a Guaranty.
(c) It is expressly agreed and understood by Contractor and City that the Guaranty to be
provided and executed by Contractor's "parent company," or Guarantor as required by this
Section, constitutes a part of the consideration to the City for this Contract.
(d) The Contractor further agrees that the failure of its "parent company" or Guarantor to
execute properly the Guaranty shall constitute a breach of this Contract and shall be cause for
termination hereof by City.
26.
LICENSES, PERMITS AND FEES
Contractor agrees to obtain and pay for all licenses, permits, certificates, inspections and
all Governmental Approvals and other fees required by Applicable Law or otherwise necessary
to perform the services prescribed hereunder. Contractor shall also pay, at its own expense, all
fees necessary to the collection and removal of Garbage, Refuse, Small Bulky Waste, Large
Brush and Lange Bulky Waste, C&D Waste, Yard Waste, and Recyclables and their residuals.
CONTRACT FOR COLLECTION SERVICES
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30
27.
UNACCEPTABLE WASTE
Contractor shall NOT knowingly accept, nor be required to accept for disposal,
Unacceptable Waste. Contractor'shall leave Unacceptable Waste at its original location and
notify the Director immediately of the location and provide the Director with a description of
such waste. Contractor reserves the right to reject or revoke acceptance of any Unacceptable
Waste. Upon notification from the Contractor, the Director shall determine whether the waste is
Unacceptable Waste or acceptable under the terms of this Contract. Contractor shall immediately
return to the site to pick up the suspected waste upon notification from the Director that the
waste is not Unacceptable Waste.
28.
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 collection and transport of Garbage,
Refuse and Solid Waste and the collection, transport and handling of Recyclables, Yard Waste,
C&D Waste and Large Brush and Large Bulky Waste, 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.
29.
CUMULATIVE REMEDIES
The rights and remedies granted in this Contract are cumulative, and the exercise of such
rights shall be without prejudice to the enforcement of any other right or remedy authorized by
law or this Contract. No waiver of any violation shall be deemed or construed by a court of law
or an arbitrator to constitute a waiver of any other violation or other breach of any of the terms,
provisions, and covenants contained herein.
30.
REMEDIES FOR BREACH
The parties agree that, except as otherwise provided in Section 18 and 20 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 unless otherwise stated herein.
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31.
NO WAVER 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 Contractor.
No waiver of any breach shall affect or alter this Contract, but each and every term, covenant,
agreement, provision, condition and limitation of this Contract shall continue in full force and
effect with respect to any other then existing or subsequent breach thereof. This Contract may be
terminated only by a written instrument of termination executed by the appropriate party and
delivered to the non-terminating party (except by expiration of the term of this Contract).
32.
SURVIVAL OF CERTAIN PROVISIONS UPON TERMNATION
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 14, 15, 18,
22, 23 24, 25, 29 and 30 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.
33.
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. 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.
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32
34.
GOVERNMENTAL POWERS AND Mf4UNITIES
It is understood and agreed that, by execution of this Contract, City does not waive or
surrender any of its governmental powers or immunities. Contractor acknowledges that the City
is a Governmental Body and as such has certain rights, powers and duties that may affect the
Contractor's rights or obligations under the Contract. The Contractor agrees that no action by the
City acting in its governmental capacity shall be construed as a breach or default by the City
under this Contract, nor shall any such action excuse the Contractor from performance of its
obligations under this Contract; provided, however, if such action constitutes an Uncontrollable
Circumstance, the Contractor may assert any rights it may have under this Contract as is
permitted for any other Uncontrollable Circumstance.
35.'
COMPLIANCE WITH LAWS
Contractor, its officers, agents, employees, contractors and subcontractors, shall abide by
and comply with all Applicable Law, federal, state and local, including the City's charter and all
ordinances, rules and regulations of the City of Fort Worth. 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.
36.
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.
37.
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
CONTRACT FOR COLLECTION SERVICES
CRL Final Document 01.07.03
33
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 20 hereof. Consent will not be withheld unreasonably in the
case of a proposed assignment to an Affiliate of Contractor, but may be withheld for any reason
or for no reason in the case of a proposed assignment by Contractor to a non-Affiliate, provided
that Contractor, Guarantor and surety shall not be released from their respective obligations
hereunder. In the event of an assignment of any duty required under this Contract, Contractor
and Guarantor shall assume responsibility for performance of that duty including all liabilities
pursuant to this Contract. 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.
38.
SUCCESSORS AND ASSIGNS
All of the terns, covenants, and agreements contained herein shall be binding upon and
shall inure to the benefit of successors and assigns of the respective parties hereto.
39.
NOTICES
Any notices (unless otherwise specified herein), bills, invoices or reports required by this
Contract shall be sufficient if sent by the parties in the United States mail, postage paid, to
the address noted below:
If to the City: Kim Mote,Assistant Director
Solid Waste Services Division
Department of Environmental Management
City of Fort Worth
4100 Columbus Trail
Fort Worth, Texas 76133
If to the Contractor: Waste Management of Texas, Inc.
1121 Riverside Drive
Fort Worth, Texas 76111
40.
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.
CONTRACT FOR COLLECTION SERVICES
CRL Final Document 01.07.03
34
41.
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.
42.
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 42 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 FOR COLLECTION SERVICES
CRL Final Document 01.07.03
35
IN WITNESS WHEREOF, The parties hereto have executed this Contract this 5F 7,�< day
of , A.D., 2003, in Fort Worth, Tarrant County, Texas.
Cl F FORT WORTH,TEXAS WASTE MANAGEMENT OF TEXAS,INC.
BY: riLs/i� �,X
Libby Watson n
Assistant City Ma iger ITS•
Date Signed: / 7'? Date Signed: I (03
ATTEST: WITNESS:
oria Pearso
City Secreta y
APPROVED AS TO FORM CORPORATE SEAL:
AND LEGALITY:
Assistant CiVf Attorney
CONTRACT FOR COLLECTION SERVICES
CRL Final Document 01.07.03
36
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Attachment C
Cost Adjustment Method
The Unit Fees for Collection of Municipal Solid Waste, Single-stream Recyclables,
Brush & Yard Waste and Bulky Waste collected from the City, under the Contract and
other fees set forth on Attachment A, will be adjusted by the Contractor for the second
and subsequent Contract Years of the Term of Contract. The Unit Prices will be
adjusted upward or downward to reflect changes in the cost of operations by the Cost
Adjustment Method using indices applicable to Collection, and the methodology as set
forth below, on the anniversary date of the Contract (the "Cost Adjustment Date"),
except that the first anniversary date shall be October 1, 2003, and the first Cost
Adjustment shall only represent changes in the indices applied herein for the previous
six months.
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 may be corrected when all data used are issued as final. If
BLS changes the methodology for calculating ECI or components of the PPI, which
cause 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 in any Contract 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
Unit Fees that will be charged by the Contractor.
On the next billing date after the receipt and approval by the City of the requested cost
adjustment, 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 Unit Fees charged
by the Contractor shall be modified to reflect any change until the next Cost Adjustment
Date, and a comparative statement is received and approved by the City.
Any fixed pass-through or add-on surcharges or costs, such as State fees on tonnage,
host municipality benefit fees, or any other government mandated surcharge, shall not
apply to the cost adjustment and will be deducted from the Unit Fees prior to calculating
any annual cost adjustment.
If any index defined herein shall not be determined and published or if any index as it is
constituted on the Contract Date is thereafter substantially changed, there shall be
substituted for such index another index which is determined and published on a basis
substantially similar to the index being replaced as shall be mutually agreed upon by the
City and the Contractor.
Listed below are the indices and Contractor's percentages of the indices that shall
constitute the basis for adjustment of the Unit Fees 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 -
Employment Cost Index (90%)
Contractor has designated 90% of Unit Fees to be adjusted by the ECI, a BLS index
separate from PPI. ECI data for"South" under the "Region (3)" category shall be used
for the adjustment calculation.
No. 2 Diesel Fuel (10%)
Contractor has designated 10% of Unit Fees to be adjusted by the No. 2 Diesel Fuel
component of"Fuel and Related Products and Power' in the PPI, which is found under
the "05" Commodity Code, "Fuels and Related Products and Power', "05730302 No. 2
diesel fuel".
Example
Following is an example of the application of these indices with Contractor's
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Attachment E
GUARANTY AGREEMENT
THIS GUARANTY AGREEMENT is made and dated as of January 8, 2003,
between Waste Management, Inc., a Delaware company organized and existing under the laws
of the State of Delaware (together with any permitted successors and assigns hereunder, the
"Guarantor"), and the City of Fort Worth, a municipal corporation organized and existing under
the laws of the State of Texas ("City").
RECITALS
The City and Waste Management of Texas, Inc., a corporation organized and
existing under the laws of the State of Texas and duly authorized to do business in the State of
Texas (the "Company"), have entered into a Contract for Collection Services to the City, dated
January 8, 2003, as renewed and amended from time to time (the "Contract") whereby the
Company has agreed to provide Collection Services, all as more particularly described therein.
Company in this Agreement shall mean Contractor as defined in the Contract.
The Company is subsidiary of the Guarantor.
The City will enter into the Contract only if the Guarantor guarantees the
performance by the Company of all of the Company's responsibilities and obligations under the
Contract as set forth in this Guaranty Agreement (the "Guaranty").
In order to induce the execution and delivery of the Contract by the City and in
consideration thereof, the Guarantor agrees as follows:
ARTICLE I
DEFINITIONS AND INTERPRETATION
SECTION 1.1. DEFINITIONS. For the purposes of this Guaranty, the term
"Obligations" means the amounts payable by, and the covenants and agreements of, the
Company pursuant to the terms of the Contract. Any other capitalized word or term used but not
defined herein is used as defined in the Contract.
SECTION 1.2. INTERPRETATION. In this Guaranty, unless the context
otherwise requires:
(A) References Hereto. The terms "hereby", "hereof', "herein", "hereunder"
and any similar terms refer to this Guaranty, and the term "hereafter" means after, and the term
"heretofore" means before, the date of execution and delivery of this Guaranty.
(B) Gender and Plurality. Words of the masculine gender mean and include
correlative words of the feminine and neuter genders and words importing the singular number
mean and include the plural number and vice versa.
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(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
of the Guarantor, enforceable against the Guarantor in accordance with its terms except insofar
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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
each and all of the Obligations. Notwithstanding the unconditional nature of the Guarantor's
E-3
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;
EA
(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;
(13) any legal disability or incapacity of any party; or
E-5
(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) any right to require a proceeding first against any person;
E-6
(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.
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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.
E-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: Waste Management, Inc.
1001 Fannin Street, Suite 4000
Houston, Texas 77002
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 Environmental Management
With a copy to: Brian Boerner, Director of Environmental Management; and
City Attorney's Office
Either party may, by like notice, designate further or different addresses to which subsequent notices
shall be sent. Any notice hereunder signed on behalf of the notifying party by a duly authorized attorney
at Jaw 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.
GBB/C0101206 E-9 1/13/03
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 MANAG ENT INC., as Guarantor
ATTEST: By:
Printed Name:
Ronald H. Jones
Title: Vice President & Treasurer
WASTE MANAGEMENT, INC., Guarantor
ATTEST: By: Z
P ted Name: Lee n MGGeF miG.
Title: Assistant Treasurer
Accepted and Agreed to by:
[City Seal] CITY OF T WORTH
A ST: By:
,0441,_ Printed Name : v Watson
a— lq3416 Title: Assistant City Manager
Contract Authorization
Date
U U`p`V'1p�'�L��•,jjc�516'n,�ue'd
GBB/C0101206 E-10 1/13/03
W.2 -0-1
WASTE MANAGEMENT
June 4, 2004
Mr. Kim Mote
Solid Waste Services Division
Department of Environmental Management
CITY OF FORT WORTH, TEXAS
4100 Columbus Trail
Fort Worth, Texas 76133
Re: Cleanup of week of June 1, 2004 Storms
Dear Kim: -
This letter will acknowledge and confirm that Waste Management of Texas, Inc.
("WMT") and the City of Fort Worth, Texas ("City") have agreed that on an emergency
response basis, WMT will collect storm debris generated in the City by the storms which
occurred the week of June 1, 2004 ("Event Debris") as follows:
1. Sweeps. WMT will utilize storm chaser equipment to "sweep" the
City to collect the Event Debris brought curbside. WMT will
commence these sweeps on June 7, 2004 or earlier, if possible. For
this service, the City shall pay WMT $110 per driver hour, plus an
administrative fee of$5 per hour (for an aggregate of$115 per hour).
The sweeps will continue until WMT is notified by the City to
discontinue the service; provided the City shall not discontinue service
for at least two weeks after the commencement date of such services,
subject to the maximum value dollar set forth below.
2. Extra Garbage bags and additional Yard Waste services. For
$1.03 per home, WMT will (a) collect all extra bags of Garbage (le
outside the carts) for the week of June 7 (one week) and (b) collect
small piles of unbundled limbs brought curbside with Yard Waste for
four(4) consecutive weeks beginning the week of June 7.
3. Saturday REL Service: At the City's request, WMT will make its
rear loader equipment available for service on Saturdays for $75.00 per
hour.
Payment for these services shall be made by the City within thirty (30) days after
receipt of WMT's invoice. The amount due by the City under this letter agreement shall
not exceed $250,000, until City Council approves a greater limitation for such services;
Letter to City of FW-June 1 2004 Storm_3/6000.13/ag
Mr.Kim Mote
June 4, 2004
Page 2
provided, when the above dollar limit is reached based on the above unit costs, WMT
shall not be obligated to continue providing services hereunder. WMT shall notify the
City in writing when the fee for such services reaches $225,000.
If this letter correctly sets forth our agreement with respect to collection of the
Event Debris, please so indicate by your signature below.
Very truly yours,
WAS T NAGEMENT OF TEXAS, INC.
Ann Reeves, Yarket Area V.P.
CITY F FORT WORTH,TEXAS
Charles Boswell, Assistant City Manager l,/
Date Signed: C9 / d
ATTEST:
A,AA)
Syl a Glover, Acting City Secretary
APPROVED AS TO FORM AND LEGALITY:
0 _ P
Assistan City Attorney
/-7-�o
City of Fort Worth, Texas
AlIltayor and 0osinde aw"j"jimication
DATE REFERENCE NUMBER LOG NAME PAGE
11/5/02 C-19340 52COLLECT 1 of 2
SUBJECT AUTHORIZATION TO EXECUTE A CONTRACT WITH WASTE MANAGEMENT OF
TEXAS, INC. FOR MUNICIPAL SOLID WASTE AND RECYCLABLES COLLECTION
SERVICES
RECOMMENDATION:
It is recommended that the City Council:
1. Authorize the City Manager to negotiate and execute a contract with Waste Management of Texas,
Inc. for collection of residential garbage and refuse, recyclables, certain commercial solid waste,
yard waste and large brush and large bulky waste; and
2. Authorize this contract to begin April 1, 2003, and expire March 31, 2013, with three ten-year
renewal options. The estimated cost for FY2002-2003 is $15,364,459. The estimated value of this
contract over the ten-year term is $189,608,855; and
3. Authorize the collection of residential garbage once per week in variable volume carts at an initial
cost to the City of$7.79 per household; or
4. Authorize the collection of garbage twice per week in bags at an initial cost to the City of $8.46 per
household.
DISCUSSION:
On July 2, 2002, the City received responses to a Request for Proposal (RFP) for a variety of solid
waste services to include the collection of municipal solid waste, single stream recyclables, yard waste,
and large brush and large bulky waste.
Following initial proposal evaluations, the evaluation committee comprised of 14 representatives from
the City Manager's Office, M/WBE Office, Internal Audit, the Finance Department, and the Law
Department, with significant input from the consulting firm of Gershman, Brickner and Bratton, solicited
best and final offers from the RFP respondents. After evaluation of these best and final offers, firms
were selected for interviews, presentations and negotiations. Waste Management of Texas, Inc. is
recommended as awardee for these collection services based on evaluation factors enumerated on the
attached RFP proposal evaluation matrix.
These solid waste collection services shall include the collection of residential garbage and refuse; the
collection of commercial-solid waste at those locations designated by the Director of Environmental
Management (DEM); the collection of large brush and bulky waste on demand; and the collection of
recyclables from buildings within the City that house two or fewer dwelling units, and from such other
establishments as designated by the DEM.
City of Fort Worth, Texas
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DATE REFERENCE NUMBER LOG NAME PAGE
11/5/02 C-19340 1 52COLLECT 2 of 2
SUBJECT AUTHORIZATION TO EXECUTE A CONTRACT WITH WASTE MANAGEMENT OF
TEXAS, INC. FOR MUNICIPAL SOLID WASTE AND RECYCLABLES COLLECTION
SERVICES
The collection of residential waste will be completed via:
Option 1 Bagged service twice per week;
Option 2 Carted service once per week beginning April 1, 2003;
Option 3 A transition from bagged service twice per week beginning October 1, 2003, or other
date as designated by the City Council.
Public forums inviting citizen and provider comments were held on March 4 and 5, 2002. A draft RFP
was mailed to all known providers on April 2, 2002, to solicit comments from the industry. This RFP
was advertised on June 19 and 26, 2002. The Purchasing Division solicited proposals from all known
solid waste services providers, including those in the purchasing system database, and advertised on
DemandStar.com. Proposal notices were also sent to other firms in related industries.
A pre-proposal conference was conducted on May 30, 2002, with approximately 40 providers in
attendance. A total of nine responses were received for all solid waste services, with six responses for
these collections services, one of which was for recyclables collection only.
PROPOSAL EVALUATION - See attached evaluation matrix.
M/WBE - Waste Management of Texas, Inc. is in compliance with the City's M/WBE Ordinance by
committing to a minimum of 29% M/WBE participation. The City's goal on this project is 25%.
RENEWAL OPTIONS -This contract may be renewed for up to three consecutive ten-year terms at the
City's option. This action does not require specific City Council approval provided that the City Council
has appropriated sufficient funds to satisfy the City's obligations during the renewal term.
FISCAL INFORMATION/CERTIFICATION:
The Finance Director certifies that funds are available in the current operating budget, as appropriated,
of the Solid Waste Fund, and that subsequent year operating costs will be budgeted.
CB:k
Submitted for City Manager's FUND I ACCOUNT CENTER AMOUNT CITY SECRETARY
Office by: (to)
Charles Boswell 6183
Originating Department Head:
Brian Boerner 8079 (from) APPROVED 11/05/02
PE64 539120 0525002 $15,364,459.00 AS AMENDED(DELE-
Additional Information Contact: TING RECOMM.#4)
Brian Boerner 8079