HomeMy WebLinkAboutContract 28496 CITY SECRETARY
CONTRACT NO. :2L?�
STATE OF TEXAS §
COUNTIES OF TARRANT, §
DENTON AND WISE §
CONTRACT FOR THE PROCESSING OF RECYCLABLE MATERIALS
THIS CONTRACT is made and entered into by and between the City of Fort Worth, a
home-rule municipal corporation in Tarrant, Denton and Wise Counties, Texas, acting herein by
and through Libby Watson, its duly authorized Assistant City Manager, hereinafter called "City",
and Abitibi Consolidated Corp., a Delaware corporation doing business in Texas, acting herein
b and through novid S h ilcrae r its duly authorized
rP SI (Jr 0 : _,hereinafter called "Contractor."
THIS CONTRACT shall be for Processing services for collected Single-stream Recyclables (the
"Recycling Services") as indicated in Contractor's Proposal and the RFP.
KNOW BY ALL THESE PRESENT:
1.
DEFINITIONS
Acceptable Material shall mean source-separated recyclable material, including but not limited
to: newspaper, corrugated boxes, pizza boxes, kraft paper, boxboard, chipboard (e.g. tissue and
cereal boxes with plastic liners removed, paper towel and toilet paper cores and similar items),
home-office paper (computer paper, calendars, school papers), magazines and shopping catalogs,
envelopes, paperboard, paper grocery bags, soda and beer cartons, old phone directories,
paperback books, shopping and lunch bags, discarded mail, carbonless forms paper, aluminum
food and beverage containers, aluminum baking tins, ferrous metal containers, empty aerosol
cans, glass bottles and jars, and rigid plastic (resins No.1 thru No.7) containers collected from
residences and businesses in a single stream or from any of the City's Convenience Centers. All
clean metallic lids are acceptable. It is not necessary to remove paper labels from containers.
Acceptable Material should be reasonably free of food residue. Acceptable Material does not
include Unacceptable Material excepting an allowance for no more than ten percent (10%)
residue by weight. Residue shall refer to incidental non-recyclables and recyclable material that
is not able to be recovered due to the inefficiencies of the mechanical processing machinery
and/or the manual sorting process such as small pieces of paper and plastic that are not large
enough to be picked by a gloved-hand from the sorting belt. Residue does not include items that
present safety or health hazards such as Hazardous Waste or Medical Waste.
Applicable Law shall mean any statute, law, constitution, charter, ordinance, resolution,
judgment, order, decree, rule, regulation, directive, interpretation, standard or similarly binding
authority, which in any case, shall be enacted, adopted, promulgated, issued or enforced that
Final Contract for Recycling Materials between Abitibi and the City of Fort Worth
CRL 02.19.03
1 4
relates to or affects the City, the Contractor, or the performance by a party of its obligations
hereunder.
City shall mean the City of Fort Worth, Texas.
City Collector shall mean the Person, firm, corporation or association or the agents or
employees thereof to whom the City shall have granted a franchise or a permit, or designated as
duly authorized to perform the Collection Services, receive, carry, haul or transport Recyclables
within the City, and may include the City.
Collection Services shall mean removal of Recyclables for transport elsewhere, or cause such to
be done.
Collection Contract(s) shall mean the contract(s) the City has with other Persons for the
collection of Solid Waste and Recyclables for designated service units, residences and businesses
within the City and/or from the City Convenience Centers.
Commission shall mean the Texas Commission of Environmental Quality (TCEQ), formerly
known as the Texas Natural Resource Conservation Commission(TNRCC).
Contract shall mean this Contract, all attachments and exhibits and all other ancillary documents
required under the RFP.
Contractor shall mean Abitibi-Consolidated Corp..
Contract Year shall mean October through September of each year, except that the first
Contract Year shall be the partial year March 31, 2003 through September 30, 2003.
Convenience Center shall mean a facility which includes a vehicle receiving area and various
bulk containers for deposit of selected waste and recyclable materials so as to provide City
residents with one-stop, drop-off service for deposit of municipal Solid Waste and recyclable
materials.
Cost Adjustment Method shall mean the adjustment of unit prices for Processing of
Recyclables under this Contract with the City by the Contractor for each year of the Contract as
shown on Attachment C. The first adjustment shall cover the period between March 31, 2003
and September 30, 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.
Final Contract for Recycling Materials between Abitibi and the City of Fort Worth
CRL 02.19.03
2
o
Director shall mean the Director of Environmental Management or his designated
representative.
Garbage shall mean Solid Waste consisting of putrescible animal and vegetable waste materials
resulting from the handling, preparation, cooking, and consumption of food, including waste
materials from markets, storage facilities, handling, and sale of produce and other food products.
Governmental Entity shall mean, as appropriate, any one or several of any court of competent
jurisdiction, the United States of America, the State of Texas and/or any appropriate jurisdiction
over activities relating to the services provided for under the terms of this Contract; or any
agency, authority, regulatory body or subdivision of any of the above as may have jurisdiction
over or power and authority to regulate the City, the Contractor, or the collection of Solid Waste.
Government Approvals shall mean all licenses, permits and approvals required from any
Governmental Entity for performance of the Contractor's obligations under this Contract.
Guarantor shall mean Abitibi Consolidated Inc..
Guaranty shall mean the Guaranty Agreement, dated as of [ 3�Z�p _], 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 (EPA) pursuant to the
federal Solid Waste Disposal Act, as amended by the Resource Conservation and Recovery Act
of 1976, 42 USC, §6901 et seq, as amended.
Letter of Credit shall mean an irrevocable direct pay letter of credit issued by a United States
bank whose long-term debt is rated "A" or better by either rating service and which maintains a
banking office in the State of Texas. The Letter of Credit shall be in the stated amount equal to
one (1) year's estimated payments to the City, shall be for a term of one (1) year, shall be
continuously renewed, extended or replaced so that it remains in effect until 180 Days after the
termination of this Contract, and shall be issued substantially in the form set forth in the RFP
subject to reasonable modifications required by the issuing bank at the time of issuance. Such
modifications shall be subject to the City's approval, which approval shall not be unreasonably
withheld, and the City shall have the right to request the Contractor to find a replacement issuing
bank if the City does not approve of such modifications.
Material Obligation shall mean those services or duties for which this Contract calls upon by a
party to perform unless specifically noted otherwise within the terms of this Contract, and for
which, by the terms of this Contract may constitute grounds for penalties or termination if the
party fails to perform such services or duties.
Medical Waste shall mean waste generated by health-care-related facilities and/or associated
with healthcare activities, not including Garbage or Rubbish generated from offices, kitchens, or
other non-healthcare activities. The term includes special waste from healthcare related facilities
Final Contract for Recycling Materials between Abitibi and the City of Fort Worth --------
CRL 01.19.03
3
i
or associated healthcare activities which is comprised of animal waste, bulk blood and blood
products, microbiological waste, pathological waste, and sharps as those terms are defined in 25
TAC §1.132 (Definition, Treatment, and Disposition of Special Waste from Health-Care Related
Facilities) or any successor. The term does not include Medical Waste produced on farmland and
ranchland as defined in Agriculture Code, §252.001(6) (Definitions--Farmland or ranchland) or
any successor, nor does the term include artificial, nonhuman materials removed from a patient
and/or requested by a patient, including but not limited to orthopedic devices and implants.
MOP shall mean mixed office paper from commercial sources only.
MP shall mean mixed paper as reflected in the OBM Yellowsheet and shall have the same
meaning as RMP defined herein.
MWBE shall mean a certified minority or women's business enterprise pursuant to City
ordinance.
OBM Yellowsheet shall mean the Official Board Markets, a weekly publication that contains the
"Transacted paper stock prices", on which fiber revenue is based.
OCC shall mean old corrugated boxes as reflected in the OBM Yellowsheet and shall include
empty pizza boxes without food residue.
ONP shall mean old newspapers,magazines and shopping catalogs.
Performance Bond shall mean a corporate surety bond that guarantees compensation to the City
in the event that the City must assume the obligations or duties of the Contractor in order to
continue the services defined in the Contract.
Person shall mean any individual, partnership, co-partnership, firm, company, corporation,
association,joint stock company, trust, estate, Governmental Entity, or any other legal entity; or
their legal representatives, agents, or assigns. This definition includes all Governmental Bodies.
Processing shall mean the separation and preparation of Single-stream Recyclables, delivered to
the Contractor by the City or the City Collector(s), into marketable commodities.
Processing Facility shall mean the Contractor's facility located at 1923 Meridian Street,
Arlington, Texas, whose activities include, but are not limited to, the separation and preparation
of Recyclables and their residuals to produce a marketable commodity or product(s) for
beneficial use.
Processing Fee shall mean the amount paid by the City to the Contractor for the Acceptable
Material accepted and processed at the Processing Facility.
Final Contract for Recycling Materials between Abitibi and the City of Fort Worth yam---
CRL 01.19.03 r
4
Recyclables shall mean material that has been recovered or diverted from the non-hazardous
Solid Waste stream for purposes of reuse, Recycling, or reclamation, a substantial portion of
which is consistently used in the manufacture of products, which may otherwise be produced
using raw or virgin materials. Recyclables are not Solid Waste.
Recycling shall mean a process by which materials that have served their intended use or are
scrapped, discarded, used, surplus, or obsolete, are collected, separated or processed and returned
to use in the form of raw materials in the production of new products. Except for mixed
Municipal Solid Waste composting, that is, composting of the typical mixed Solid Waste stream
generated by residential, commercial, and/or institutional sources, Recycling includes the
composting process if the compost material is put to beneficial use.
Recycling Services shall mean those services for which the City and the Contractor have
negotiated and agreed upon according to the terms of this Contract.
Refuse shall mean nonputrescible Solid Waste (excluding ashes), consisting of both combustible
and noncombustible waste materials. Combustible Refuse includes paper, rags, cartons, wood,
excelsior, furniture, rubber, plastics, yard trimmings, leaves, or similar materials;
noncombustible Refuse includes glass, crockery, tin cans, aluminum cans, metal furniture, and
similar materials that will not burn at ordinary incinerator temperatures (1,600 degrees
Fahrenheit to 1,800 degrees Fahrenheit).
RFP shall mean the Request for Proposals No. 02-0087 and all ancillary documents of the RFP
or Contractor's proposal.
RMP (Residential Mixed Paper) shall mean all Acceptable Material as herein defined other
than OCC, OMG and ONP.
Rubbish shall mean the same as Refuse.
Single-stream Recyclables shall mean all Acceptable Material as defined herein.
Solid Waste shall mean any Garbage, Rubbish, Refuse, sludge from a wastewater treatment
plant, water supply treatment plant, or air pollution control facility, and other discarded material,
including solid, liquid, semi-solid, or contained gaseous material resulting from industrial,
municipal, commercial, mining, and agricultural operations and from community and
institutional activities. The term does not include:
(A) solid or dissolved material in domestic sewage, or solid or dissolved material in
irrigation return flows, or industrial discharges subject to regulation by permit issued under the
Water Code, Chapter 26;
(B) soil, dirt, rock, sand, and other natural or man-made inert solid materials used to fill
land if the object of the fill is to make the land suitable for the construction of surface
Final Contract for Recycling Materials between Abitibi and the City of Fort Worth
CRL 01./9.03
9
improvements.
SOP shall mean sorted office paper.
Ton shall mean a short ton of 2000 pounds.
Unacceptable Material shall mean any material that is (i) Hazardous Waste, (ii) Medical Waste,
and (iii) excluded from the definition of municipal Solid Waste by Chapters 363 and 361 of the
Texas Health and Safety Code and other materials which require special handling or treatment
including, but not limited to, lead acid batteries, tires, liquid waste, and large or bulky items such
as appliances. Unacceptable Material also means recyclable material that does not meet the
requirements of the Texas Administrative Code, 30 TAC §§328.1-328.8; that is the recyclable
material contains more than ten percent (10%) by weight of contaminants and/or non-recyclable
material. Contaminants include but are not limited to food waste, recyclable materials containing
food waste, plastic items that are not rigid containers, dirt, disposable paper items such as tissues
and diapers, paint, pesticides, herbicides and other liquids. Also unacceptable are metallic
wrapping paper, metallic greeting cards, Styrofoam or paper meat trays, plastic grocery bags,
pots and pans, auto glass, cookware, plastic egg cartons, carbon paper, non-paper envelopes (e.g.
tyvek) and hardcover books (unless covers and spines have been removed).
Unanticipated Events shall mean severe weather events such as hurricanes, tornadoes, floods,
ice storms or hail, and other disasters such as fires but not including reasonably anticipated
weather conditions for the geographic area of the City.
Uncontrollable Circumstances includes Unanticipated Events, and shall mean any act, event or
condition (excluding those which result from the willful or negligent action or inaction of a
party) occurring during the term that has, or may reasonably be expected to have, a material and
adverse effect on a right or an obligation of either or both parties to this Contract, if such act,
event or condition is beyond the reasonable control of the party relying thereon as justification
for not performing under this Contract. Uncontrollable Circumstances shall include but is not
limited to the following an act of God, landslide, lightning, earthquake, fire, explosion, flood,
nuclear radiation, acts of a public enemy or terrorist, war, blockade, insurrection, riot or civil
disturbance or any similar occurrence, or a condemnation or other taking by or on behalf of any
public, quasi-public or private entity, but not including reasonably anticipated weather conditions
for the geographic area of the City;
Uncontrollable Circumstances shall not include:
(1) insolvency or inability to pay any amount;
(2) inability to obtain any Letter of Credit, surety bond, payment or
Performance Bond or any other security required by this Contract;
Final Contract for Recycling Materials between Abitibi and the City of Fort Worth ---- --.-_
CRL 02.19.03
6
(3) a public or private labor dispute relating to the collection, transportation,
Processing or disposal of Solid Waste and or Recyclables, including a
dispute related to Contractor's labor force.
Violation shall mean any determination by a Governmental Entity that the Contractor is in
violation of or not in compliance with any portion of its Permit(s) or Applicable Laws.
2.
SCOPE OF CONTRACTOR'S SERVICES
Contractor hereby covenants and agrees to diligently and faithfully perform the public service of:
A. Processing, marketing, and sale of Recyclables and the disposal of their residuals
collected from residences and businesses collected by the City Collector, and the City's
Convenience Centers by the City Collector under the terms of the Collection Contract(s)
with the City, and from such other establishments as designated by the Director;
B. Provide all labor, tools, equipment, materials, insurance, Performance Bonds, supervision
and all other items necessary for the performance of such work and services. All such
work shall be made in accordance with the terms herein;
C. Make educational payments to the City in accordance with Section 4;
D. Attend all meetings which shall include but not be limited to monthly meetings during the
first six (6) months after the commencement of this Contract and then once quarterly.
Contractor may request additional meetings as is reasonably necessary by providing
notice to the Director in a timely manner;
E. Work with City and City Collector(s) to resolve customer service issues;
F. Make timely reports and payments to the City;
G. Provide other necessary services associated with this Contract; and
H. Respond to and resolve complaints in a timely fashion.
3.
SCOPE OF CITY SERVICES
The City agrees to perform the following services:
A. Designate a City representative to provide timely direction to the Contractor and render
City decisions;
Final Contract for Recycling Materials between Abitibi and the City of Fort Worth
CRL 01.19.03 i
7
B. Timely review and respond, if necessary, to reports submitted by Contractor;
C. Monitor the personnel, equipment, and vehicle standards as described in the terms of this
Contract;
D. Inform Contractor of complaints made by City Collector(s) in a timely manner;
E. Provide educational programs and material as determined by the Director to the City's
citizens to educate citizens on the proper way to set out Recyclables for collection under
the terms of this Contract and the City's ordinances and to otherwise promote recycling;
F. Provide a monthly report of the City's educational programs in which Contractor's
educational contribution is being applied;
G. Work with Contractor and City Collector(s) to resolve customer service issues; and
H. Assess liquidated damages as determined by the Director.
4.
PAYMENT
For and in consideration of the Recycling Services performed in accordance with this
Contract,payment shall be made as follows:
Within fifteen Days of the end of each month during which Recycling Services are provided by
the Contractor, Contractor shall submit to the Director a monthly report which shall include the
items described in Section 13, together with a check representing the payment owed by the
Contractor. The breakdown of Acceptable Material by commodity shall be established by the
Waste Audit Procedure detailed in Attachment A, and shall be the basis of the commodity
percentages for which the City shall be paid for deliveries of Acceptable Material in the previous
month in accordance with the terms set forth below.
The payment shall represent the difference between A and B (A—B).
A. A is equal to: 75% of the revenue for all Acceptable Material which shall be calculated as
described in sub-paragraphs 1 through 3 below.
1. The revenue shall be equal to the sum of the amount received by the Contractor
for the sale of all Acceptable Material that is non-fiber material, plus the amount
for ONP and RMP, which shall be the total weight of ONP multiplied by the
index price per Ton which shall be (i) ten dollars ($10) over the high side for #8
News Southwest on the OBM Yellowsheet as listed in the second edition of each
month; or (ii) forty-two dollars and fifty cents ($42.50) (the "Floor Price"),
whichever is greater.
Final Contract for Recycling Materials between Abitibi and the City of Fort Worth
CRL 01.l 9.03
8 4
2. The Parties agree to allow a total of thirteen percent (13%), by weight, of RMP to
be considered ONP for revenue purposes and Contractor will pay the ONP price
for RMP with the following limits by type of RMP: (i) five per cent (5%) by
weight of home-office paper, (ii) five per cent (5%) by weight of discarded mail;
and (iii) three percent (3%) by weight of chipboard to be calculated using the
ONP formula.
3. For any RMP that exceeds the limits stated above, Contractor will pay the City
75% of the revenue received from the sales of baled RMP. For all OCC,
Contractor will pay the City 75% of the revenue received from the sales of baled
OCC. For all MOP, Contractor will pay the City 75% of the revenue received
from the sales of baled SOP. No transportation costs of any kind shall be deducted
from these amounts. All RMP accepted at Contractor's facility that any
division of Contractor uses above the limits stated in Section A.2 of this
Contract in any one month shall be considered ONP for revenue-sharing
purposes for that month.
B. B is equal to: the total weight of Acceptable Material received by the Contractor from
the City Collector(s) in a month for Processing multiplied by twenty-nine dollars and
forty cents ($29.40) per Ton (the "Initial Processing Fee") whereas the Initial Processing
Fee shall be adjusted each year following the first Contract Year by the Cost Adjustment
Method according to Section 5 of this Contract and sub-paragraphs 1 through 4 below.
1. Contractor shall charge the City a Processing Fee per Ton of Acceptable Material
received and processed at the Processing Facility from the City Collector(s). The
base fee shall be twenty-nine dollars and forty cents ($29.40)per Ton if the City's
recycling program includes glass.
2. If more than two thousand (2,000) Tons of Acceptable Material are received in
any one (1) month, the Processing Fee for that month shall be twenty-eight dollars
($28.00) per Ton as the base fee that shall apply during the first Contract Year for
a program that includes glass, adjusted each year following the first Contract Year
by the Cost Adjustment Method according to Section 5 of this Contract.
3. If more than two thousand five hundred (2,500) Tons of Acceptable Material are
received in any one (1) month, the Processing Fee for that month shall be twenty-
seven dollars ($27.00) per Ton as the base fee that shall apply during the first
Contract Year for a program that includes glass, adjusted each year following the
first Contract Year by the Cost Adjustment Method according to Section 5 of this
Contract.
4. If glass is removed as an Acceptable Material by the City, the Processing Fee set
forth above will be reduced by an additional dollar ($1.00) per Ton during the
Fina!Contract jor Recycling Materials between Abitibi and the City ojFort Worth ---—°
CRL 02.i 9.03
9 � -
first Contract Year, adjusted each year following the first Contract Year by the
Cost Adjustment Method according to Section 5 of this Contract.
C. Contractor shall also pay to the City an educational payment as indicated in Section 2 of
this Contract which shall be equal to one dollar ($1.00) per Ton of Acceptable Material
delivered by City Collector(s) to the Processing Facility, adjusted each Contract Year by
the Cost Adjustment Method as described in Section 5. The educational payment shall be
paid to the City quarterly and shall be due within fifteen (15) Days following the quarter
ending December 31, March 31, June 30 and September 30 of each Contract Year and
shall be the amount for all tonnage of Acceptable Material delivered to the Processing
Facility in the respective quarter through the last Day of the month preceding the due
date. Contractor shall receive quarterly reports from the City describing how the
educational payment is being used in the City's educational programs for Recycling. The
City agrees to spend the educational payment only on educational programs promoting
Recycling.
D. The procedure for identifying and handling contaminated Recyclables shall be as detailed
in Attachment B.
5.
UNIT PRICE ADJUSTMENT
Contractor hereby agrees to accept payments adjusted in the manner as reflected in the
Adjustment Schedule included in this Contract as Attachment C, as full compensation for
services rendered. Contractor will submit documentation of the payment adjustment criteria to
the City along with its annual request for rate adjustment.
6.
TERM
The term of the Contract shall be for a period of ten (10) years, commencing March 31,
2003 (the "Commencement Date") and ending March 31, 2013. City shall have the right to
extend this Contract for up to three (3) consecutive ten (10) year renewal terms, provided City
and Contractor agree in writing at least ninety (90) Days prior to the end of the initial or renewal
term. All renewals terms shall have the same terms, conditions and fees as set forth herein,
unless agreed to otherwise in writing by both parties in an amendment to this Contract.
7.
WEIGHTS AND MEASURES METHOD
Contractor shall weigh all Recyclables received at the Processing Facility from the City
or City Collector(s) and shall maintain certified scales of sufficient size and quality to accurately
weigh Recyclables. The scales shall be in operation at all times during the time Contractor
receives Recyclables from the City or City Collector(s), except to the extent due to an
Uncontrollable Circumstance, but in no event shall any scale be inoperative for a period
Final Contract for Recyc ling Materials between Abitibi and the City of Fort Worth __
CRL 01.19.03
10
exceeding two (2) consecutive Days. Contractor will keep current and provide the City a backup
plan for weighing vehicles when their scales are inoperative. Contractor will provide software for
operation of the scales. Contractor shall have the scales checked, calibrated and certified not less
than every six (6) months during the term of this Contract by a reputable company approved by
the City and the Contractor. The Contractor shall provide the City with advance notice of the
date and time that the scales will be tested, and allow the City to have a representative present.
The Contractor will arrange for the testing company to mail a copy of the test results directly to
the City. When the scales are not operating due to any circumstance, the weight of Acceptable
Material brought into the Processing Facility by Contractor shall be estimated using the actual
average truckload from receipt of Recyclables from the past three (3) months for the purposes of
this Contract.
8.
LABOR FORCE
A. The Contractor agrees that all persons employed in the performance of services under the
Contract shall be paid standard wages, notwithstanding the foregoing, the Contractor agrees
to:
1. Comply with all requirements of Chapter 2258, Texas Government Code, including the
payment of not less than the rates determined by the City Council of the City of Fort
Worth to be the prevailing wage rates in accordance with Chapter 2258, Texas
Government Code;
2. Maintain records that show (i) the name and occupation of each worker employed by the
Contractor for the Recycling Services; and (ii) the actual per diem wages paid to each
worker, throughout the term of this Contract and any renewal term(s). These records shall
be open at all reasonable hours for inspection by the City;
3. Post the prevailing wage rates in a conspicuous place at Abitibi Consolidated Corp.,
Recycling Division, located at 1923 Meridian Street, Arlington, Texas, at all times.
B. Contractor must provide thirty(30) Days notice of a change in key personnel (e.g., Division
President, Operations Manager and Facility Manager) to the Director and introduce such new
personnel to the DEM. Contractor shall employ only such superintendents, foremen, and
workers who are careful, competent and fully qualified to perform the duties or tasks
assigned to them and shall take appropriate action against any employees or subcontractors
of Contractor who shall behave themselves in such manner as to be actionable or who neglect
or refuse to comply with or carry out the directions of Contractor or to follow the
Contractor's rules, regulations, safety procedures and policies.
Final Contract for Recycling Materials between Abitibi and the City of Fort Worth
CRL 02.i 9.03
11
9.
HOLIDAYS
The following Days shall be observed as holidays: New Year's Day, Thanksgiving Day,
and Christmas Day. These holidays may be changed upon the determination of the Director. The
Processing Facility shall be made available to receive Acceptable Material from the City
Collector(s) and for Processing every scheduled Day, including bad weather Days, unless the
Director informs Contractor(s) of a suspension of service.
10.
MWBE REQUIREMENTS
In keeping with the MWBE ordinance, Contractor agrees to the following:
A. A minimum of 25% of the total dollar value of this Contract shall be paid as
compensation to certified MWBE firms according to the City's ordinance(s).
B. Contractor will, during the term of this Contract, provide City with monthly reports
detailing its compliance with the requirements for MWBE participation. City shall have a
right of access to any and all books, records and documents, which relate to MWBE
subcontracts in order to audit and verify the information contained in the monthly reports.
Contractor shall include in all MWBE subcontracts a similar provision allowing City
access to subcontractor's books, records and documents for these purposes.
11.
PERSONNEL STANDARDS
A. Contractor shall furnish such qualified mechanical, supervisory, clerical and other
personnel as may be necessary to provide the services required in a safe, economical and
efficient manner. All workers shall have sufficient skill, training, ability and experience
to properly perform the work assigned to them and operate any equipment necessary to
properly carry out the performance of the assigned duties.
B. Contractor shall train its employees to identify Hazardous Waste and Medical Waste.
C. Contractor shall not, nor shall it permit its employees to, demand or solicit, directly or
indirectly, any additional compensation or gratuity from members of the public or from
City Collector(s) for services provided under the Contract.
D. Contractor shall use its best efforts to assure that all employees present a neat appearance
and conduct themselves in a courteous manner. Contractor shall regularly train its
employees in customer courtesy, shall prohibit the use of loud or profane language. If
any employee is found not to be courteous or not to be performing services in the manner
required b the Contract, Contractor shall take all appropriate corrective measures. If
q y _
Final Contract for Recycling Materials between Abitibi and the City of Fort Worth
CRL 02.19.03
12
City has notified Contractor of a complaint related to discourteous or improper behavior,
Contractor will consider reassigning the employee to duties not entailing contact with the
public or City Collector(s) while Contractor is pursuing its investigation and corrective
action process.
E. Contractor shall designate qualified employees as supervisors of field operations.
Supervisors will be in the field inspecting Contractor's work and will be available by
radio or phone during the Contractor's hours of operation to handle calls and complaints
from the City, or to follow up on problems and inspect Contractor's operations.
12.
EQUIPMENT
A. Contractor shall furnish and maintain all equipment in accordance with the standards set
out in the RFP, this Contract and all Applicable Law, and as is considered to be necessary
for prosecution of the work in an acceptable manner and at a satisfactory rate of progress.
B. All equipment, tools, and machinery used for handling materials and executing any part
of the work shall be maintained in satisfactory, safe and efficient working condition in
accordance with the manufacturer's specifications and/or recommendations. Equipment
used by Contractor or Contractor's subcontractor shall be such that no injury to the
workers or property should result from its proper use. Contractor shall be responsible for
initiating, maintaining and supervising all safety precautions and programs, in connection
with the work and services performed hereunder. Contractor shall provide reasonable
protection to prevent property loss or damage and/or personal injury to persons, including
but not limited to employees performing such work and all other persons who may be
affected thereby.
C. In addition to the above requested information, Contractor shall furnish the City a
written inventory of all equipment used in providing service, and shall update the
inventory annually within thirty (30) Days of the Day any equipment is added to or
removed from the inventory or with the next monthly report,whichever is later.
D. Contractor shall maintain all of its properties, facilities and equipment used in providing
services under the Contract in a safe, neat, clean and operable condition at all times. City
may inspect the properties, facilities and equipment at any time to determine compliance
with sanitation requirements.
E. Contractor shall inspect each piece of equipment daily to ensure that all equipment is
operating properly. Contractor shall perform all scheduled maintenance functions in
accordance with the manufacturer's specifications and schedule. Contractor shall keep
accurate records of all maintenance, recorded according to date and hours and shall make
such records available to the City upon request to the extent necessary to ensure
compliance of manufacturer's recommended scheduled service.
Final Contract for Recycling Materials between Abitibi and the City of Fort Worth - ----- -
CRL 01.19.03 ;
13
1
F. Contractor shall repair, or arrange for the repair of, all of its equipment for which repairs
are needed because of accident, breakdown or any other cause so as to maintain all
equipment in a proper, safe and operable condition. Contractor shall maintain accurate
records of repair, which shall include the date and hours, nature of repair and the
signature of a maintenance supervisor that the repair has been properly performed.
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 D. These reports shall include data for all materials handled from its services to the
City.
1. Monthly reports shall be submitted in the format presented in Attachment D and shall
include:
(a) Date, truck number,ticket number and net weight for all incoming loads;
(b) Tons of material received for Processing;
(c) Daily and monthly total by type of material received for Processing;
(d) Revenues received for materials sold;
(e) Net revenue due the City as described in sub-paragraph described above;
(f) Processing payments due to Contractor;
(g) Educational and promotional activities;
(h) Receipt and resolution of complaints and inquiries;
(i) Outstanding claims;
0) MWBE information and status;
(k) Equipment added to or removed from Contractor's Processing Facility
(1) Monthly payments due to Contractor or City;
(m) Total amount spent as compensation to MWBE firms as requested in Section 10
herein; and
(n) Such other information as required in sub-paragraphs 4 and 5 below.
2. Annual reports shall report all the above data, following the same format as the monthly
report.
3. Records shall be kept on a daily, weekly, cumulative monthly, and cumulative annual
basis, and shall be available to the City upon request.
4. Contractor shall file reports with the City in a timely manner, but on no less than a
monthly basis, specifying all complaints, accidents or incidents while performing any
duties pursuant to the terms of this Contract, outages or downtime with respect to the
Final Contract for Recycling Materials between Abitibi and the City of Fort Worth _
CRL 02.19.03
14
Processing Facility, and inspections by any regulatory agencies during the month of the
report.
5. Reports shall detail the nature and reasons for these occurrences as well as all results,
findings and actions taken to resolve such incidents. Contractor shall also notify the
Director immediately of any fines or penalties levied and any actions that could have an
adverse impact on the Contractor or the service to the City, or both. Failure to report such
data shall subject the Contractor to damages described in Section 17 of this Contract.
14.
LOCAL OFFICE. PROCESSING FACILITY AND CONTRACT ADMINISTRATION
Contractor is required to maintain during the term of this Contract a fully operational
business office within the Fort Worth metropolitan area. Contractor shall charge, assign or
delegate to this office full authority to transact all business required in the performance of this
Contract. Contractor shall designate a qualified managing agent within the City of Fort Worth or
its immediately surrounding areas and shall identify same in writing to the City. All notices may
be served from the City or Director upon the designated managing agent. Service upon
Contractor's managing agent shall always constitute service upon the Contractor.
A. Contractor's local office and Processing Facility shall be open during collection hours
for City Collector(s) to deliver the City's Recyclables. At a minimum, the
Contractor's Processing Facility shall be open during the hours of 7:00 a.m. through
7:00 p.m. Monday through Friday and 7:00 am through 3:00 p.m. on Saturdays, or
until completion of tasks, whichever is latest.
B. Contractor's local office shall have a responsible person in charge, and shall be
equipped with sufficient communications technology and sufficient competent
personnel to receive all communications. Contractor's communication personnel shall
deal with all communications in a courteous and polite manner, and record all
complaints. All complaints received on a Day preceding a holiday must be resolved
prior to 9:00 a.m. on the next working Day. Contractor will have pre--recorded
announcements for all after-hours communications to provide information on holiday
office, Processing Facility hours and other information as reasonably requested by the
Director.
C. Contractor shall provide a contact person to the City, available twenty-four (24)
hours, seven Days a week on an emergency basis, who is able to adequately address
any and all issues which may arise under the terms of this Contract.
D. Contractor will provide adequate communications technology at its Processing
Facility and have it staffed with competent personnel during normal operating hours.
Contact information will be clearly displayed on all recycling containers and other
informational material.
Final Contract for Recycling Materials between Abitibi and the City of Fort Worth ---- --
CRL 02.19.03
15 E
f
4
15.
COMPLAINTS AND NON-PERFORMANCE
A. All Collector complaints shall initially be directed to the City. The Director shall notify
Contractor of each complaint reported to the City. It shall be the duty of Contractor to
take whatever steps may be necessary to remedy the cause of the complaint and notify the
Director of its disposition within twenty-four (24) hours after receipt of the complaint by
Contractor. Failure to remedy the cause of the complaint may be considered a breach of
the Contract and subject to liquidated damages.
B. The City shall supply on a daily basis to the Contractor with an electronic work order
outlining all complaints. The work order will indicate the identification number, the date
and hour of inquiry or complaint receipt, customer's name, address and phone number,
the nature of the complaint or inquiry, and the City's contact by whom complaint or
inquiry was received. When a complaint is received on the Day preceding a holiday or a
weekend, it shall be promptly serviced as described above on the next working Day.
C. Upon resolution of the complaint, the Contractor will close the work order and re-submit
to the City. The closed work order will include:
1. Date, time and action taken to resolve complaint; and
2. Name of the person responsible to answer the complaint.
16.
CONTINGENCY PLAN
Within ninety (90) Days prior to the commencement of the services under the terms of
this Contract, Contractor shall submit to the Director for approval a contingency plan showing
the program and procedures Contractor will implement in the event of an emergency, downtime,
outage, equipment failure or breakdown, labor dispute, or other situation or condition that would
impair Contractor's ability to perform or provide the required services under this Contract.
17.
LIQUIDATED DAMAGES
For the purpose of computing damages for Contractor's failure to remedy an action or
inaction listed below, it is agreed that the City may deduct from payments due to Contractor or to
become due to Contractor or bill Contractor, the following amounts as liquidated damages:
1. Causing any Acceptable Material delivered to the Contractor by the City or the
City Collector(s) to be delivered to any facility as Solid Waste without the express
written consent of the City: $2,000 for the first occurrence and $5,000 per
occurrence thereafter;
Final Contract for Recycling Materials between Abitibi and the City of Fort Worth — - --
CRL 02.19.03
16 '
j
_ n
2. Failure to submit accurate reports including monthly, quarterly, annual,
employment reports and others as specified in the Contract and invoices in the
specified format: Non-payment of invoices until submission of an accurate and
appropriately formatted invoice and complete reporting information and $250.00
per occurrence;
3. Failure to maintain a staffed office during specified hours: $100.00 per
occurrence;
4. 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: $100.00 per occurrence;
5. Wrongfully rejecting Acceptable Material as defined herein: $1,000 for the first
occurrence and $1,500 per occurrence thereafter;
6. Failure to maintain availability of Processing Facility to receive and Process
City's Acceptable Material: $3,500 for the first occurrence and $6,500 per
occurrence thereafter.
Contractor's failure to remedy complaints as described above may be considered a failure to
perform a Material Obligation.
18.
EVENTS OF DEFAULT BY CONTRACTOR
A. The following shall constitute events of default on the part of the Contractor:
1. Failure by the Contractor to perform any Material Obligation under the terms of this
Contract, and continuance of such failure after (i) written notice thereof has been
provided by the Director specifying such failure and requesting that such condition be
remedied, and (ii) Contractor's failure to cure the default or immediately initiate and
diligently pursue reasonable action and cure such non-performance within fifteen (15)
Days after receiving notice from the Director. On the fifteenth Day, City may begin
termination of this Contract pursuant to Section 21 of this Contract; or
2. The Contractor being insolvent or bankrupt or ceasing to pay its debts as they mature
or making an arrangement with or for the benefit of its creditors or consenting to or
acquiescing in the appointment of a receiver trustee, or liquidator for a substantial
part of its property; or a bankruptcy, winding up, reorganization, insolvency,
arrangement, or similar proceeding instituted by the Contractor, under the laws of any
jurisdiction or against the Contractor, if the Contractor does not take the appropriate
action to dismiss said proceedings; which proceedings has not been dismissed within
ninety(90) Days of the institution of such proceeding; or any action or answer by the
Final Contract for Recycling Materials between Abitibi and the City of Fort Worth ---- --— -- - -_
CRL 01.19.03
17
Contractor approving, consenting to, or acquiescing in, any such proceeding; or the
event of any distress, execution, or attachment upon the property of the Contractor
which shall substantially interfere with its performance hereunder; or
3. The following acts or omissions by the Contractor shall constitute failure to perform
Material Obligations under this Contract:
a. Failure of Contractor to commence work operations within the time specified in
the Contract;
b. Failure of Contractor to provide and maintain sufficient labor and equipment to
properly execute the working operations;
c. Evidence that Contractor has abandoned the work;
d. Failure on the part of Contractor to comply with the Contract or any requirements
therein, or to comply with any of the Director requirements which are provided
for in this Contract and the RFP;
e. Indication that the Contractor has made an unauthorized assignment of the
Contract or any funds due therefrom for the benefit of any creditor or for any
other purpose;
f. Failure to supply complete and accurate information as required in this Contract;
and
g. Failure to comply with all Applicable Law.
B. City shall, as soon as practical, notify Contractor of any failure on the Contractor's part to
comply with the terms of this Contract. After receipt of notice from the City, Contractor
shall acknowledge receipt of such notice and shall promptly provide the City with notice
of what corrective action has or shall be taken by the Contractor, within fifteen (15)
Days from receipt of the notice from City. Failure to provide acknowledgement of receipt
of notice, or notice of planned corrective action shall constitute an event of default
notwithstanding anything to the contrary herein.
19.
EVENTS OF DEFAULT BY CITY
A. The following shall constitute events of default on the part of the City except to the extent
excused by the occurrence of an Uncontrollable Circumstance or Contractor's Fault:
1. Failure by City to perform any Material Obligation under the terms of this Contract,
and the continuance of such failure for a period of sixty(60) Days after written notice
thereof has been provided by the Contractor specifying such failure and requesting that
Final Contract for Recycling Materials between Abitibi and the City of Fort Worth
CRL 02.19.03 _
18 j
such condition be remedied if City does not either cure the default or initiate and
diligently pursue reasonable actions to cure such non-performance; or
2. City being insolvent or bankrupt or ceasing to pay its debts as they mature or making
an arrangement with or for the benefit of its creditors or consenting to or acquiescing
in the appointment of a receiver, trustee or liquidator for a substantial part of its
property; or a bankruptcy, winding up, reorganization, insolvency, arrangement or
similar proceeding instituted by City under the laws of any jurisdiction or against City,
if City does not take appropriate action to dismiss said proceedings, which proceeding
has not been dismissed within ninety(90) Days of the institution of such proceeding;
or any action or answer by City, approving of, consenting to, or acquiescing in, any
such proceeding; or the levy of any distress, execution or attachment upon the property
of City, which shall substantially interfere with its performance hereunder.
B. Contractor shall, as soon as practical, notify City of any failure on the City's part to
comply with the terms of this Contract. After receipt of notice from the Contractor, City
shall acknowledge receipt of such notice and shall promptly provide the Contractor with
notice of what corrective actions has been or shall be taken by the City, within a
reasonable time, in light of the circumstances. Failure to provide within fifteen (15) Days
acknowledgement of receipt of notice, or notice of planned corrective action shall
constitute an event of default.
20.
UNCONTROLLABLE CIRCUMSTANCES
A. Uncontrollable Circumstance affecting Contractor's Obligations.
Contractor shall be excused for the failure to perform its obligations under the terms of
this Contract if such failure results from the occurrence of an Uncontrollable
Circumstance. Contractor shall seek diligently and in good faith to perform its
obligations, notwithstanding the occurrence of an Uncontrollable Circumstance, to
mitigate the adverse effects of an Uncontrollable Circumstance, and to overcome an
Uncontrollable Circumstance as soon as practicable.
B. Notice of an Uncontrollable Circumstance.
Contractor shall provide verbal notice of an Uncontrollable Circumstance to the Director
within twenty-four (24) hours of the Contractor's knowledge of such Uncontrollable
Circumstance and Contractor shall follow up with written notification within three (3)
Days of the Contractor's knowledge of such Uncontrollable Circumstance. Such notice
shall, at a minimum, set forth the following (to the extent then known or available, or if
not, as soon as practicable thereafter, a separate notice shall provide such information not
provided in the first notice):
Final Contract for Recycling Materials between Abitibi and the City of Fort Worth
CRL 01.19.03
19
I. a description of the Uncontrollable Circumstance that has occurred;
2. the effect, if any, or such Uncontrollable Circumstance on Contractor's
performance or other obligations under this Contract; and
3. the time when the Uncontrollable Circumstance will be abated.
C. Reinstatement of Ability to Perform.
After the resolution of an Uncontrollable Circumstance and the restoration of the
Recycling Services, the Contractor shall provide written notice of a reinstatement of
services. The City shall reinstate (or shall cause reinstatement of) unless this Contract
shall have been previously terminated as provided herein.
D. Uncontrollable Circumstance.
Neither Contractor nor the City shall be liable for the failure to perform their duties nor
for any resultant damage, loss, etc., if such failure is caused by Uncontrollable
Circumstances. If such Uncontrollable Circumstances persists for more than thirty (30)
Days, or if after its [their] cessation, the Contractor is unable to render full or substantial
performance for a period of thirty (30) Days, the City may terminate this Contract by
giving Contractor ten (10)Days advance written notice.
21.
TERMINATION
Upon the occurrence of an event of default, and after the expiration of the period of time
provided to cure such default, with no cure being accomplished, all work and services of this
Contract may be suspended on written order of the Director or the City Manager, or the Contract
may be declared terminated by the City Council for any event of default by Contractor provided:
(i) the City has provided Contractor written notice of such action or inaction constituting grounds
for such suspension or termination as provided in Section 18 of this Contract; and (ii) Contractor
fails to cure such alleged action or inaction within thirty (30) Days of Contractor's receipt of
such notice. If such default is of a nature that it cannot be cured within such thirty (30) Day
period, the City will not take action to suspend or terminate this Contract provided Contractor
commences the curing of such action or inaction within the thirty (30) Day period and diligently
pursues the curing thereafter, as determined by the Director.
A copy of the suspension order or action of the City Council shall be served on
Contractor's surety. When work is suspended for any cause or causes, or when the Contract is
terminated, Contractor shall discontinue the work or such part thereof as the City shall designate,
whereupon the surety may, at its option, assume the Contract or that portion thereof which the
City has ordered Contractor to discontinue, and may perform the same or may, with the written
consent of the City, sublet the work or that portion of the work as taken over, provided, however,
that the surety shall exercise its option and begin performance of the work, if at all, within two
(2) weeks after the written notice to discontinue the work has been served upon Contractor and
upon the surety or its authorized agent. The surety, in such event, shall assume Contractor's place
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.
Final Contract for Recycling Materials between Abitibi and the City of Fort Worth - -------
CRL 02.19.03
20
In case the surety does not, within the above-specified time, assume the Contract
responsibilities, or that portion thereof which the City has ordered Contractor to discontinue,
then the City shall have the power to perform and complete, by contract or otherwise, as it may
determine, the work herein described or such part thereof as it may deem necessary, and
Contractor agrees that the City shall have the right to procure equipment, labor and materials
necessary for the completion of the work. The City shall not be required to obtain the lowest bid
for the work of completing the Contract, but the expense to the City for same shall be the actual
cost to the City of such work.
In case such expenses shall exceed that amount which would have been payable under the
Contract if the same had been fully completed by the Contractor, then the Contractor and its
surety shall pay the amount of such excess to the City on notice from the City of the excess due.
When any particular part of the work is being carried on by the City by contract or otherwise
under the provisions of this Section, the Contractor shall continue the remainder of the work in
conformity with the terms of the Contract.
In all instances, Contractor and surety shall be liable for all costs incurred by City during
the period after notice to discontinue the work has been served upon Contractor and the surety
until such time as City either has elected to prosecute the work of this Contract itself or has
replacement contractors in place to prosecute the work with or without additional City forces.
22.
PAYMENT DISPUTES
If a party disputes any amount that is payable under this Contract, the party disputing
such amount shall provide written notice to the other party of such disputed amount, together
with sufficient information to enable the other party to understand the nature of the dispute.
Such notice shall be delivered by the party disputing such amount no later than the date that such
amount is due and payable and the party disputing such amount shall make payment of any
undisputed amount on the due date thereof. If the amount that is in dispute is ultimately
determined to be due and payable, such disputed amount, together with interest thereon, shall be
paid by the party disputing such amount within ten(10) business Days.
23.
CUMULATIVE REMEDIES
The rights and remedies granted in this Contract to the City and the Contractor upon an
event of default are cumulative, and the exercise of such rights shall be without prejudice to the
enforcement of any other right or remedy authorized by law or this Contract. No waiver of any
violation shall be deemed or construed by a court of law or an arbitrator to constitute a waiver of
any other violation or other breach of any of the terms, provisions, and covenants contained
herein.
Final Contract for Recycling Materials between Abitibi and the City of Fort Worth - �^
CRL 02.19.03
21 u
24.
REMEDIES FOR BREACH
The parties agree that, except as otherwise provided in Section 21 with respect to
termination, in the event that either party breaches this Contract, the other party may exercise
any legal rights it has under this Contract under the security instruments and under Applicable
Law to recover damages or to secure specific performance, and that such rights to recover
damages and to secure specific performance shall ordinarily constitute adequate remedies for any
such breach. Neither party shall have the right to terminate this Contract for cause except upon
the occurrence of an event of default or as otherwise stated herein.
25.
NO WAIVER OF RIGHTS
No failure by the City or by the Contractor to insist upon the strict performance of any
term, covenant, agreement, provision, condition or limitation of this Contract or to exercise any
right or remedy hereunder, and no acceptance by the City of full or partial payment during the
continuance of any such breach, shall constitute a waiver of any such breach or of such term,
covenant, agreement, provision, condition or limitation. No term, covenant, agreement,
provision, condition or limitation of this Contract to be kept, observed or performed by the City
or by the Contractor, and no breach thereof, may be waived, altered or modified except by a
written instrument executed and acknowledged by and delivered to the City and the Contactor.
No waiver of any breach shall affect or alter this Contract, but each and every term, covenant,
agreement, provision, condition and limitation of this Contract shall continue in full force and
effect with respect to any other then existing or subsequent breach thereof. This Contract may be
terminated (except by expiration of the Term of this Contract) only by a written instrument of
termination executed by the appropriate party and delivered to the non-terminating party.
26.
SURVIVAL OF CERTAIN PROVISIONS UPON TERMINATION
All representations and warranties of the parties contained in this Contract, the
Contractor's indemnity obligations in this Contract with respect to events that occurred prior to
the termination, the rights and obligations of the parties hereto pursuant to Sections 19, 20, 23,
24, 28, and 29 and all other provisions of this Contract that so provide shall survive the
termination of this Contract. No termination of this Contract shall (1) limit or otherwise affect
the respective rights and obligations of the parties hereto accrued prior to the date of such
termination, or (2) preclude either party from impleading the other party in any legal proceeding
originated by a third-party as to any matter occurring during the term of this Contract.
27.
INDEPENDENT CONTRACTOR
It is expressly understood and agreed that Contractor shall perform all work and services
described herein as an independent contractor and not as an officer, agent, servant or employee
Final Contract for Recycling Materials between Abitibi and the City of Fort Worth
CRL 02.19.03
22
of the City; that Contractor shall have exclusive control of and the exclusive right to control the
details of the services and work performed hereunder, and all persons performing the same; and
shall be solely responsible for the acts and omissions of its officers, agents and employees,
contractors and subcontractors; that the doctrine of respondeat superior shall not apply as
between City and Contractor, its officers, agents and employees, contractors and subcontractors;
and that nothing herein shall be construed as creating a partnership or joint enterprise between
City and Contractor. No person performing any of the work and services described hereunder
shall be considered an officer, agent, servant or employee of the City.
28.
INDEMNIFICATION
A. CONTRACTOR SHALL RELEASE,INDEMNIFY, REIMBURSE,DEFEND,AND HOLD
HARMLESS, CITY, ITS OFFICERS, AGENTS, SERVANTS AND EMPLOYEES, FROM
AND AGAINST ANY AND ALL CLAIMS OR SUITS FOR PROPERTY DAMAGE OR
LOSS AND/OR PERSONAL INJURY, INCLUDING DEATH, TO ANY AND ALL
PERSONS, ARISING OUT OF THE WORK AND SERVICES TO BE PERFORMED
HEREUNDER BY CONTRACTOR, ITS OFFICERS, AGENTS, EMPLOYEES,
CONTRACTORS, SUBCONTRACTORS, LICENSEES, OR INVITEES, INCLUDING
DAMAGES, LOSS,INJURY OR DEATH,TO THE EXTENT CAUSED BY ANY ERROR,
OMISSION, DEFECT, OR DEFICIENCY OF CONTRACTOR IN ACCORDANCE
WITH THIS CONTRACT.
B. CONTRACTOR DOES HEREBY RELEASE, INDEMNIFY, REIMBURSE, DEFEND,
AND HOLD HARMLESS THE CITY, ITS OFFICERS, AGENTS, SERVANTS, AND
EMPLOYEES FROM AND AGAINST ANY AND ALL LIABILITY, CLAIMS, SUITS,
DEMANDS, OR CAUSES OF ACTION WHICH MAY ARISE DUE TO ANY LOSS OR
DAMAGE TO PERSONAL PROPERTY, OR PERSONAL INJURY, AND/OR DEATH
OCCURRING AS A CONSEQUENCE OF THE PERFORMANCE OF THIS
CONTRACT, WHEN SUCH INJURIES, DEATH, OR DAMAGES ARE CAUSED BY
THE NEGLIGENCE OF CONTRACTOR, ITS OFFICERS,AGENTS, OR EMPLOYEES,
OR SUBCONTRACTORS, OR THE JOINT NEGLIGENCE OF CONTRACTOR, ITS
AGENTS, OR EMPLOYEES, OR SUBCONTRACTORS, AND ANY OTHER PERSON
OR ENTITY, EXCLUDING ALL PARTIES INDEMNIFIED HEREUNDER, TO THE
EXTENT CAUSED BY THE NEGLIGENT ACT OR OMISSION OF CONTRACTOR.
C. The obligations of the Contractor under this Section shall include, but not be limited
to, the burden and expense of defending all claims, suits, and administrative
proceedings (with counsel reasonably approved by the indemnified parties), even if
such claims, suits or proceedings are groundless, false, or fraudulent, and in
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.
Fina!Contract jor Recycling Materials between Abitibi and the City ojFort Worth
CRL 01.19.03
23
D. Upon learning of a claim, lawsuit, or other liability which Contractor is required
hereunder to indemnify, the City shall provide Contractor with reasonably timely
notice of same.
E. The obligations of the Contractor under this Section shall survive the expiration of
this Contract and the discharge of all other obligations owed by the parties to each
other hereunder.
F. In all of its contracts with subcontractors for the performance of any work under
this Contract, Contractor shall require the subcontractors to indemnify the City in a
manner consistent with this Section.
G. In the event that a written claim for damages against Contractor or any of its
subcontractors remains unsettled at the time all work on the assigned task has been
completed to the satisfaction of the City Manager, as evidenced by a final inspection,
final payment to Contractor shall not be recommended by the City Manager for a
period of ninety (90) Days after the date of such final inspection, unless the
Contractor submits written evidence satisfactory to the City Manager that the claim
has been settled and a release has been obtained from the claimant involved, or
offers reasonable security for payment of such claim.
1. If the claim concerned remains unsettled at the expiration of the said thirty
(30) Day period, the Contractor may be deemed by the City Manager to be
entitled to a semi-final payment for work completed, such semi-final
payment to be in an amount equal to the total dollar amount then due less
the dollar value of any written claims pending against the Contractor arising
out of the performance of such work.
2. The City Manager shall not recommend final payment to Contractor if a
claim for damages is outstanding for a period of six (6) months following the
date of the acceptance of the work performed unless the Contractor submits
evidence in writing, satisfactory to the City Manager, that:
a. The claim has been settled and a release has been obtained from the
claimant involved; or
b. Good faith efforts have been made to settle such outstanding claims,
and such good faith efforts have failed.
3. If condition (a) above is met at any time within the six (6) month period, the
City Manager shall recommend that the final payment to Contractor be
made. If condition (b) above is met at any time within the six (6) month
period, the City Manager may recommend that final payment to Contractor
be made. At the expiration of the six (6) month period, the City Manager
Final Contract for Recycling Materials between Abitibi and the City of Fort Worth
CRL 01.19.03
24
may recommend that final payment be made if all other work has been
performed and all other obligations of the Contractor have been met to the
satisfaction of the City Manager.
29.
INSURANCE
Contractor shall not commence work under this Contract until it has obtained all
the insurance required under the Contract, and such insurance has been approved by the
City. Contractor shall keep the required insurance in force throughout the term of this
Contract.
A. WORKERS' COMPENSATION INSURANCE: Contractor shall maintain, during the
term of this Contract, Workers' Compensation Insurance at statutory limits on all of
its employees to be engaged in work under this Contract, and require its
subcontractor(s) to maintain the same Employer's Liability (EL) Insurance at
minimum limits as follows: $500,000 each accident/$500,000 disease each
employee/$500,000 disease policy limit.
B. GENERAL LIABILITY INSURANCE (CGL): Contractor shall procure and shall
maintain during the term of this Contract a General Liability Insurance coverage at a
minimum limits of Twelve Million Dollars ($12,000,000) per occurrence combined
single limit, including property damage and personal injury coverage, during effective
dates of the Contract, or any renewal thereof.
C. AUTOMOBILE INSURANCE: Contractor shall procure and maintain during the
term of this Contract Comprehensive Automobile Liability Insurance covering all
vehicles involved with Contractor's operations under this Contract. The minimum
limits of liability coverage shall be in the amount of Two Million Dollars
($2,000,000) per occurrence combined single limit, during the effective dates of
Contract and any renewal period. The named insured and employees of Contractor
shall be covered under this policy. .
The following shall pertain to all applicable policies of insurance (A. through C.) listed above:
1. Additional Insured Clause: "The City of Fort Worth, its officers, agents,
employees, and representatives are added as additional insureds as respects
operations and activities of, or on behalf of the named insured, performed
under contract with the City of Fort Worth." An equivalent clause may be
acceptable in the discretion of the City of Fort Worth. Such language shall
not be included in the Workers' Compensation Insurance.
Final Contract for Recycling Materials between Abitibi and the City of Fort Worth
CRL 02.19.03
25
2. Subcontractors shall provide their own insurance coverage and,
documentation of coverage shall be submitted to the Contractor prior to the
commencement of work and the Contractor shall deliver such to the City.
3. Prior to commencing work under the Contract, the Contractor shall deliver
to the City insurance certificate(s) documenting the insurance required and
terms and clauses required.
4. The insurance certificates required by this Contract shall contain the
following clauses: "This insurance shall not be canceled, limited in scope or
coverage, or non-renewed until after thirty (30) Days prior written notice has
been given to the Director of Environmental Management, City of Fort
Worth, 1000 Throckmorton, Fort Worth,Texas 76102."
5. The insurers for all policies must be approved to do business in the State of
Texas and be currently rated in terms of financial strength and solvency to
the satisfaction of the Risk Manager for the City.
6. The deductible or self-insured retention (SIR) affecting the coverage
required shall be acceptable to the Risk Manager of the City; and, in lieu of
traditional insurance, alternative coverage maintained through insurance
pools or risk relations groups must be also approved.
30.
PERFORMANCE BOND
Contractor agrees that upon the execution of this Contract and before beginning work, it
shall make, execute and deliver to the City a good and sufficient Performance Bond in a form
furnished by the City, to secure the faithful performance of the terms and conditions herein (the
"surety"). Such bond shall be in the amount of 100 per cent 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 amount as the
estimated cost of services for the year immediately following the date of renewal. Same shall be
signed by the President or General Officer of the Contractor, together with the signature of the
corporate secretary and the corporate seal. The surety shall be a surety company duly authorized
to do business in the State of Texas, and acceptable to the City Council of the City.
In lieu of the Performance Bond, Contractor may submit an irrevocable, direct pay Letter
of Credit, issued by a local banking institution, in the amount listed above, made out in favor of
the City in relation with the services provided hereunder.
All performance security, whether Performance Bond or Letter of Credit, must be in form
and content acceptable to the City Attorney and annual documentation is required in the form of
written certification from the surety company or banking institution that the said Performance
Final Contract for Recycling Materials between Abitibi and the City of Fort Worth
CRL 02.19.03
26
Bond or Letter of Credit remains in effect each year of the Contract. In the event that the
Performance Bond or Letter of Credit will cease to be in effect, the surety company or banking
institution and Contractor shall notify the City at least thirty (30) Days in advance of lapse, and
Contractor shall make, execute and deliver to the City a good and sufficient Performance Bond
as described above and in the amount named above no less than ten (10) Days in advance of
lapse of coverage.
31.
RIGHT TO AUDIT
Until the expiration of three (3) years after the final payment under this Contract, the City
shall have access to and the right to examine any directly pertinent books, documents, papers and
records of the Contractor and Guarantor involving transactions relating to this Contract.
Notwithstanding anything to the contrary in this Contract or in Attachment E, the City
acknowledges it shall not have access or the right to examine financial records of the Contractor that
pertain to the Guarantor without limiting the generality of the foregoing to the Guarantor's division,
account or facility. Contractor further agrees to include in all its subcontracts hereunder a provision
to the effect that the subcontractor agrees that the City shall, until the expiration of three (3) years
after final payment under the subcontract, have access to papers and records of such subcontractor
involving transactions relating to the subcontract. The term "subcontract" as used herein includes
purchase orders.
32.
RIGHT TO ENTER AND INSPECT
Contractor shall permit the City and its authorized representatives to enter the Processing
Facility at all reasonable times upon reasonable request for inspection and other reasonable
purposes. Nothing herein shall create or imply any duty upon the City to make any repairs or do
any work with respect to the Processing Facility and any performance thereof by the City shall
not constitute a waiver of Contractor's default in failing to perform the same.
33.
HEALTH AND SANITATION
Contractor shall establish and enforce in its operations and among its employees such
regulations in regard to cleanliness and sanitation in the receiving, handling, storage, and
transport of Recyclables and their residue as will tend to prevent the inception and spread of
disease and to effectively prevent the creation of a nuisance on any property either public or
private.
34.
GOVERNMENTAL POWERS AND IMMUNITIES
It is understood and agreed that, by execution of this Contract, City does not waive or
surrender any of its governmental powers or immunities. Contractor acknowledges that the City
Final Contract for Recycling Materials between Abitibi and the City of Fort Worth
CRL 01.19.03
27
1
E
i
is a Governmental Entity and as such has certain rights, powers and duties that may affect the
Contractor's rights or obligations under the Contract. The Contractor agrees that no action by the
City acting in its governmental capacity shall be construed as a breach or default by the City
under this Contract, nor shall any such action excuse the Contractor from performance of its
obligations under this Contract; provided, however, if such action constitutes un Uncontrollable
Circumstance, the Contractor may assert any rights it may have under this Contract as is
permitted for any other Uncontrollable Circumstance.
35.
COMPLIANCE WITH LAWS
Contractor, its officers, agents, employees, contractors and subcontractors, shall abide by
and comply with all laws, federal, state and local, including the City's charter and all ordinances,
rules and regulations of the City. It is agreed and understood that, if City calls the attention of
Contractor to any such violations on the part of Contractor, its officers, agents, employees,
contractors or subcontractors, then Contractor shall immediately desist from and correct such
violation. Violation of Applicable Law may be grounds for termination pursuant to the terms of
this Contract.
36.
LICENSES, PERMITS AND FEES
Contractor agrees to obtain, pay for, and maintain all licenses, permits, certificates,
inspections and all other Governmental Approvals and other fees required by Applicable Law or
otherwise necessary to perform the services prescribed hereunder. Contractor shall also pay, at
its own expense, all fees necessary to the Processing and marketing of Recyclables and the
Processing and transport and disposal of residuals.
37.
DISCRIMINATION PROHIBITED
Contractor, in the execution, performance or attempted performance of this Contract shall
not discriminate against any person or persons on any unlawful basis. This Contract is made and
entered into with reference specifically to Article III of Chapter 17 of the Code of the City of
Fort Worth (1986), as amended, an ordinance prohibiting discrimination, and Contractor hereby
covenants and agrees that it has fully complied with all provisions of same and that no employee
or employee-applicant has been discriminated against or will be discriminated against by
Contractor in violation of said ordinance. Contractor warrants that it is an equal opportunity
employer.
In addition, Contractor, in the execution, performance or attempted performance of this
Contract shall not discriminate on any prohibited basis and shall fully comply with all other
applicable federal, state and local laws concerning discrimination.
Final Contract for Recycling Materials between Abitibi and the City of Fort Worth
CRL 02.19.03
28
i
1
s
38.
NON ASSIGNMENT
Contractor shall not assign, transfer, sublet, convey, or otherwise dispose of the Contract
or the rights, title, or interest in or to the same or any part thereof without the previous consent of
the City Council with concurrence of the surety. In the event Contractor does, without such
previous consent, assign, transfer, sublet, convey or otherwise dispose of the Contract or of the
right, title or interest therein or any part thereof, City may, at its discretion, terminate the
Contract in accordance with Section 21 hereof. Consent will not be withheld unreasonably,
provided that Contractor, Guarantor and surety shall not be released from their respective
obligations hereunder. The City may not assign its rights and privileges under this Contract
without the prior written consent of the Contractor which shall not be unreasonably withheld.
39.
REPRESENTATIONS AND WARRANTIES OF EACH PARTY
Each party represents and warrants to and with the other as to the Commencement Date
(and such representations and warranties as of the Commencement Date shall survive the
termination or expiration of this Contract), as follows:
A. Each party is duly organized and existing in good standing and each is duly qualified and
authorized to enter into and perform the obligations set forth in this Contract. The
execution and performance of this Contract (1) have been duly authorized by all required
corporate or other action of such party, (2) do not require any consent or approval not
otherwise previously obtained, and (3) will not violate any judgment, order, law or
regulation applicable to such party or any provisions of such party's charter, ordinances
or resolutions.
B. The execution of this Contract and the performance of all obligations set forth herein do
not conflict with, and will not, nor with the passage of time or the giving of notice,
constitute a breach of or event of default under any charter, ordinances or resolutions of
the party, or any contract, indenture, mortgage, bond, instrument or Applicable Laws to
which the party is subject or by which such party is bound. This Contract has been duly
executed and constitutes a legal, valid and binding obligation of each party and is
enforceable in accordance with its terms, except to the extent that the enforcement thereof
is limited by any applicable bankruptcy, insolvency, reorganization, moratorium or other
laws relating to or limiting creditors' rights generally and the application of principles of
equity.
C. There is no action, suit or proceeding, at law or in equity, before or by any court or
Governmental Entity, pending or threatened against the party, wherein an unfavorable
decision, ruling or finding would materially adversely affect the performance by the party
of its obligations hereunder or the other transactions contemplated hereby, or which, in
any way, would adversely affect the validity or enforceability of this Contract, or any
Final Contract for Recycling Materials between Abitibi and the City of Fort Worth
CRL 02./9.03
29
other contract or instrument entered into by the party in connection with the transactions
contemplated hereby.
40.
SUCCESSORS AND ASSIGNS
All of the terms, covenants, and agreements contained herein shall be binding upon and
shall inure to the benefit of successors and assigns of the respective parties hereto.
41.
NOTICES
Any notices, bills, invoices or reports required by this Contract shall be sufficient if sent by
the parties in the United States mail, postage paid, to the address noted below:
If to the City: Kim Mote,Assistant Director
Solid Waste Services Division
Department of Environmental Management
City of Fort Worth
4100 Columbus Trail
Fort Worth, Texas 76133
If to the Contractor: Frank Killoran, Regional Operations Manager
Abitibi Consolidated Corp., Recycling Division
1923 Meridian Street
Arlington, Texas 76011
With a copy to:
Legal Services
1155, Metcalfe,bureau 800
Montreal, Quebec
Canada, H3B 5112
Fax: 514-394-3644
To Guarantor: Abitibi-Consolidated Inc.
C/o: Legal Services
1155, Metcalfe,bureau 800
Montreal, Quebec
Canada, H3B 5112
Fax: 514-394-3644
Final Contract for Recycling Materials between Abitibi and the City of Fort Worth ---
CRL 02.19.03
30 j
s
4
42.
VENUE
Should any action, whether real or asserted, at law or in equity, arise out of the terms and
conditions of this Contract, venue for said action shall be in Tarrant County, Texas.
43.
GUARANTY BY PARENT COMPANY OF CONTRACTOR
A. It is hereby agreed and understood by Contractor and City that Abitibi-Consolidated 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 the
sub-section above, constitutes a part of the consideration to the City for this Contract.
D. The Contractor further agrees that the failure of its "parent company" or Guarantor to
execute properly the Guaranty shall constitute a breach of this Contract and shall be cause
for termination hereof by City.
44.
SAVINGS CLAUSE
In case any one or more of the provisions contained in this Contract shall, for any reason,
be held to be invalid, illegal or unenforceable in any respect, such invalidity, illegality or
unenforceability shall not affect any other provision of this Contract; this Contract shall be
construed as if such invalid, illegal or unenforceable provision had never been contained herein.
45.
NON-APPROPRIATION
In the event that no funds or insufficient funds are collected, appropriated and budgeted
or funds are otherwise unavailable for payment of amounts due hereunder by City to Contractor,
City shall notify Contractor and this Contract shall terminate on the last Day of the fiscal period
for which appropriations were made without penalty or expense to City of any kind whatsoever,
except as to the payment of amounts due and payable for which appropriations have been made
for said fiscal period. City covenants that it will provide Contractor as much notice as possible of
Final Contract for Recycling Materials between Abitibi and the City of Fort Worth _
CRL 01.19.03
31
this contingency. Provided, however, that this Section 45 is not intended to grant to the City an
independent ground for termination of this Contract separate and apart from any grounds for
termination for non-appropriation or non-availability of funds which would be provided to City
by reason of Tex. Const. Ann. Art. 11, Sec. 5 and 7.
IN WITNESS WHEREOF, The parties hereto have executed this Contract and Contract
this _day of (Y\&-c l- - , A.D., 2003, in Fort Worth, Tarrant County, Texas.
CITY OF ORT WORTH
See a tf a On rn e- +
BY:
Libby Watson
Assistant City Manage President/Vice President
Date Signed: 31 a Date Signed:
;AEST: WITNESS:
loria ea n
r
City Seer ary Contract authorization
Date
APPROVED AS TO FORM CORPORATE SEAL:
AND LEGALITY:
0'�Vu' P,•-Xo _
Assistant City Attorney
Final Contract for Recycling Materials between Abitibi and the City of Fort Worth
CRL 02.l 9.03
32
MAr-91-08 14;08 From-ADITIBI CONSOLIDATED +6143843644 T-065 P,03/06 F-208
ABInM-CONSOLIDATED CORP.
By: d ; h&jnaer
Title!President
Date Signed-
WITNESS:
By:
Title:
CORPORATE SEAL:
1
Fiw Cerer so jnr Reryamg ABmrr&b knv"n Aoki&uW cbc Coy Kf f vrr WorM
ou UZ.19.09
3J
S1
• ..F., i . • ...�.-. i•�... • •-.� .-in - i--------i n L• 1 i I.i"1/1 ['1l�'I I.ITI ll fl I"1 I.ILII['1T 4/�n •/fin �I I'�n
ATTACHMENT A
PROCEDURE FOR AUDITING THE COMMODITY MIX IN
RECYCLABLES RECEIVED FROM THE CITY
Background
The Contract between the City and Contractor calls for the City to be paid a share of the revenue
realized from the sale of recyclable commodities. In order to determine the percentage of each
commodity in the single-stream recyclable material (Acceptable Material), periodic audits must
be done of the inbound material. The result of the audit will be a list of commodities contained
in the Acceptable Material and the percentage of each commodity in the mix. The audits will
determine the percentages of the following commodities: ONP, OMG, OCC, RMP, discarded
mail,home-office paper, chipboard, aluminum cans, aluminum tins, steel cans, aerosol cans,
natural HDPE (rigid)plastic, colored HDPE (rigid)plastic, PET (rigid)plastic,mixed (rigid)
plastic (#3 - #7), clear(flint) glass, green glass,brown (amber) glass, other miscellaneous
materials recovered by processor and residue.
Two auditing procedures will be used. One manual and the other mechanized. The manual audit
will be done using people sorting from the pile on the floor. The mechanized audit will be done
using people sorting from the conveyor system along with mechanized sorting(magnets, eddy
current separators, etc.). The audits to be done in April and July of 2003 will be manual. The
October 2003 audit will be mechanized. The commodity mix will be determined by the manual
audits during the months of April through September of 2003. From October through December
2003,the results of the mechanized audit will be used to determine the commodity mix.
In the remaining years of the Contract, four mechanized audits (quarterly) and two manual audits
(semi-annually)will be completed. The results of the mechanized audit will be used to
determine the commodity mix in the remaining years of the Contract. The results of the manual
audit will be for information purposes and to determine any disparities between the mechanized
audits and manual audits. The City reserves the right to revert to the manual audit as the sole
basis to determine the commodity mix and the revenue sharing for the City, if the City deems a
disparity to become frequent or great as between the mechanized and manual audits
Mechanized Auditing Procedure
1. On a schedule of once per quarter (one time each three month period), Contractor will
audit one inbound truckload of single-stream material collected from each of the City's
five collection districts. The audits are to take place on five consecutive working days (or
less if it's possible to collect from different districts on the same day).
2. The City and Contractor shall agree on the dates of the audit, and the City will have a
representative present.
fkilloran Page 1 3/17/2003
3. Each audit shall be conducted on consecutive working days on which the City or the City
Collector collects Acceptable Material. One (1) City or the City Collector's collection
truck from each of the City's collection districts will be randomly selected for sorting of
its load of Acceptable Material into commodities as follows:
a. The City collection district to be audited will be selected on the first audit day by
throwing a die. If six (6) comes up, a second throw will be done. Whatever
number 1 through 5 is thrown will be the number of the first district audited. The
districts will then be audited in ascending order. When District 5 has been
audited, it will be followed by District 1. At least ten(10) days prior to any audit,
Contractor shall meet with the City and the City Collector to coordinate collection
schedules in each of the current collection districts (1-5) to ensure that each of
these collection districts is represented in one of the days of the five-day audit.
b. The truck to be audited from the selected district, as per 3a above, will be selected
randomly as follows. The total number of trucks collecting for the City on that
day from the selected district will be provided to Contractor by the City. A throw
of a die shall be used to determine the truck selected for audit from the
chronological order of arrival, i.e., "1" indicates the first truck to arrive at
Contractor's Processing Facility, "2" indicates the second truck, etc.
c. If the truck selected is Unacceptable or is a"problem load"(see Attachment B),
the next collection truck to arrive will be selected for audit.
4. The collection trucks selected for audit will be weighed full and empty to capture the tare
weight of the truck and the weight of the single-stream material. (Note: On-file tare
weights are not acceptable for this procedure.)
5. The five truckloads of material will be deposited in an area of the Processing Facility that
has been segregated from the tipping floor, which has been cleaned, so that there is no
contamination of the load by other materials on the tipping floor.
6. All bunkers and receiving receptacles used in the processing system will be empty at the
start of the audit.
7. The sorting machinery and the workers will process the five loads of material exactly as
happens during normal plant operations.
8. After the machinery and the workers have processed all material, each commodity will be
loaded into the hoppers for accurate weighing.
9. The full and empty weight of the hoppers will be captured and recorded so that the
weight of each commodity can be determined. Certified scales will be used.
10. The weight of each commodity, including residue, will be divided by the weight of the
full load to provide the percentage of each commodity in the load. The percentage will
be calculated to two decimal places (Example: 8.22%).
11. A report will be generated detailing the results of the audit. This report will be sent to the
City for review. The City will comment on the report in writing to Contractor within ten
(10) days. If the City accepts the report, or if ten (10) days have passed and the City has
not contested the audit results in writing to Contractor, the audit results will establish the
basis of revenue to the City from the processing of Acceptable Material until completion
and acceptance by the City of the next audit.
12. If the City disapproves the audit report and/or if the results of the audit appear to be in
error, then either the City or Contractor may request another audit (of a different load of
material) to confirm the results and establish the basis of revenue to the City until the
fkilloran Page 2 3/17/2003
next audit is completed and accepted by the City. The City and Contractor will agree on
the dates for any additional audit, and the results of such additional audit will establish
the basis of revenue to the City until the next periodic audit is completed and accepted by
the City. If either the City or Contractor disputes the results of such additional audit, the
dispute shall be handled in accordance with the dispute resolution provisions of the
Contract. The Director and Contractor shall meet within forty-eight (48) hours of the
additional audit to resolve such dispute. If the dispute cannot be resolved between the
Director and Contractor, the party requesting the additional audit shall submit a written
statement of evidence to the City Manager stating the cause of the dispute and evidence
supporting that party's position within five (5) days of the meeting between the Director
and Contractor. The City Manager shall set a hearing within ten(10) days after receiving
the disputing party's notice of such dispute. At such hearing, each party shall present
evidence supporting that party's position. Upon hearing evidence from both parties,the
City Manager shall then make a determination to settle the dispute.
Manual Auditing Procedure
13. On a schedule as specified above, Contractor shall audit one inbound truckload of single-
stream material collected from each collection district in the City.
14. The City and Contractor shall agree on the dates of the audit, and the City will have a
representative present.
15. Each audit shall be conducted on five (5) or less consecutive working days on which the
City or City's Collector collects Acceptable Material. One (1) City or the City Collector's
collection truck will be randomly selected for sorting of its load of Acceptable Material
into commodities as follows:
a. The City collection district to be audited will be selected on the first audit day by
throwing a die. If six (6) comes up, a second throw will be done. Whatever
number 1 through 5 is thrown will be the number of the first district audited. The
districts will then be audited in ascending order. When District 5 has been
audited, District 1 will follow it. At least ten (10) days prior to any audit,
Contractor shall meet with the City and the City Collector to coordinate collection
schedules in each of the current collection districts (1-5) to ensure that each of
these collection districts is represented in one of the days of the five-day audit.
b. The truck to be audited from the selected district, as per 3a above, will be selected
randomly as follows. The City will provide the total number of trucks collecting
for the City on that day from the selected district to Contractor. A throw of a die
shall be used to determine the truck selected for audit from the chronological
order of arrival, i.e., "1" indicates the first truck to arrive at Contractor's
Processing Facility, "2" indicates the second truck, etc.
c. If the truck selected is Unacceptable or is a "problem load" (seeAttachment B),
the next collection truck to arrive will be selected for audit.
16. The collection trucks selected for audit will be weighed full and empty to capture the tare
weight of the truck and the weight of the single-stream material. (Note: On-file tare
weights are not acceptable for this procedure.)
fkilloran Page 3 3/17/2003
17. The truckload of material will be deposited in an area of the Processing Facility that has
been segregated from the tipping floor, which has been cleaned, so that there is no
contamination of the load by other materials on the tipping floor.
18. A series of hoppers will be placed in the vicinity of the load. Each hopper will be marked
with a sign describing which commodity is to be placed into it.
19. A group of workers will manually sort the Acceptable Material into 64-gallon carts by
grade, as listed above. Once a cart is full, it will be dumped into the appropriate hopper.
When a hopper fills up, it will be weighed, recorded, and emptied into a commodity
staging bunker
20. The full and empty weight of the hoppers will be captured and recorded so that the
weight of each commodity can be determined. Certified scales will be used.
21. The weight of each commodity, including residue, will be divided by the weight of the
full load to provide the percentage of each commodity in the load. The percentage will
be calculated to two decimal places (Example: 8.22%).
22. A report will be generated detailing the results of the audit. This report will be sent to the
City for review. The City will comment on the report in writing to Contractor within ten
(10) days. If the City accepts the report, or if ten (10) days have passed and the City has
not contested the audit results in writing to Contractor, the audit results will establish the
basis of revenue to the City from the processing of Acceptable Material until completion
and acceptance by the City of the next audit.
23. If the City disapproves the audit report and/or if the results of the audit appear to be in
error, then either the City or Contractor may request another audit (of a different load of
material) to confirm the results and establish the basis of revenue to the City until the
next audit is completed and accepted by the City. The City and Contractor will agree on
the dates for any additional audit, and the results of such additional audit will establish
the basis of revenue to the City until the next periodic audit is completed and accepted by
the City. If either the City or Contractor disputes the results of such additional audit, the
Director and Contractor shall meet within forty-eight (48) hours of the additional audit to
resolve such dispute. If the dispute cannot be resolved between the Director and
Contractor, the party requesting the additional audit shall submit a written statement of
evidence to the City Manager stating the cause of the dispute and evidence supporting
that party's position within five (5) days of the meeting between the Director and
Contractor. The City Manager shall set a hearing within ten (10) days after receiving the
disputing party's notice of such dispute. At such hearing, each party shall present
evidence supporting that party's position. Upon hearing evidence from both parties, the
City Manager shall then make a determination to settle the dispute.
fkilloran Page 4 3/17/2003
ATTACHMENT B
PROCEDURE FOR IDENTIFYING AND HANDLING CONTAMINATED RECYCLABLES
RECEIVED FROM THE CITY
Background
The Texas Administrative Code Sections 328.1 through 328.5 (30 TAC §§ 328.1-328.5)more
clearly define legitimate recycling operations. One purpose of the rules is to limit the amount of
non-recyclable material that can be received at a recycling facility. Contractor shall comply with
such rules as part of the procedure for identifying and handling contaminated Recyclables
received from the City. The Acceptable Material (See Contract Section 1) from the City, which
will be received by Contractor, may be Unacceptable Material or have non-recyclable material
mixed with it. This procedure defines how those loads will be identified and handled.
Identification and Handling Procedure
1. Every truck containing Recyclables from the City will be (1) weighed and recorded with
its full weight and (2) directed into the building and the discharge door(bubble, tailgate,
etc.) opened to allow for inspection of material.
2. The "traffic supervisor"will make a visual check of the recycled material while it is still
in the truck. The traffic supervisor will look for any hazardous or non-recyclable
material.
3. If all material visible is deemed to be Acceptable Material, the traffic supervisor will
direct the driver to dump the load in the normal area for Processing.
4. If the traffic supervisor can see material which in his/her judgment contains over 10%
non-recyclable material and/or which violates TCEQ rules stated above,then the traffic
supervisor will take a photograph of the questionable material. The driver will be asked
to close the truck door and move the truck to another area of the building designated for
dumping of"problem loads."
5. Once the "problem load" is dumped onto the floor, the traffic supervisor will call for the
Operations Manager to review the situation and determine the disposition of the load.
6. The truck will go back to the scale to be weighed empty. (Note: On-file tare weights are
not acceptable for this procedure.) The weight of the material that the truck was carrying
will be calculated.
7. The non-recyclable portion of the load will be separated and weighed. If the non-
recyclable portion is less than 10%by weight, then the load shall be processed by
Contractor and the incident shall be dismissed.
8. If the non-recyclable portion is more than 10%by weight of the load, the load may be
designated "contaminated." If Contractor designates the load contaminated because of the
non-recyclable portion being greater than 10%by weight, the Operations Manager will
notify the City, and the City will be responsible to remove the contaminated load within
two hours of notification. The City may allow Contractor to assume the responsibility for
discarding the contaminated load.
fkilloran Page 1 3/17/2003
9. If the City removes the load, then the weight of that load will not be considered an
incoming load for revenue-sharing purposes.
10. If the City opts to allow Contractor to handle the contaminated load, Contractor can
either discard the entire load, which will not be considered incoming material for
revenue-sharing purposes or remove the non-recyclable portion of the load, in which case
the City will be responsible for the cost of removing and the cost of tipping the non-
recyclable portion that exceeds the 10% residue limit.
11. If Contractor decides to retain the load and remove the contaminated portion, then the
portion of the load that can be recycled will be placed into a container(self-dumping
hopper, 30-c. y. roll-off container, etc.), weighed and dumped onto the tipping floor in the
receiving area.
12. The non-recyclable portion of the load will be loaded into the Facility's residue
compactor. That material will be taken to the landfill by the franchised solid waste hauler
for the City of Arlington, Texas, serving Contractor's Processing Facility.
13. The City will be charged a disposal fee of$35 per Ton(or the fee in effect at the time) for
the non-recyclable portion of the load that is taken to the landfill. For the portion that is
recyclable, the City will be charged the Tip Fee and be paid revenue from the sale of the
commodities.
14. The non-recyclable portion of the load will be subtracted from the total amount of
Acceptable Material used to calculate recycled material revenues.
This procedure is not intended to cause rejection of loads of materials delivered from the City
that contain incidental amounts of non-recyclable material that would normally become residue
from the processing of such materials, and the City shall not be charged a disposal fee for such
normal amounts of residue from processing Acceptable Material, as such cost is included in
Contractor's processing fee to the City as per the Contract.
fkilloran Page 2 3/17/2003
ATTACHMENT C
Cost Adjustment Method
The Processing Fee for processing of Acceptable Material under the Contract with the City will
be adjusted by the Contractor for the second and subsequent Contract Years of the Term of
Contract. The Processing Fee will be adjusted upward or downward to reflect changes in the cost
of operations by the Cost Adjustment Method using September indices applicable to Processing,
and the methodology as set forth below, the "Cost Adjustment Date"(October 1 of each year),
except that the first anniversary date shall be October 1, 2003 with the first Cost Adjustment
representing changes in the indices applied herein for the previous six months (April to
September 2003).
All indices used represent either the Employment Cost Index (ECI) or components of the
Producer Price Index (PPI), and are all published by the U.S. Department of Labor, Bureau of
Labor Statistics (BLS). Since some BLS data are not finalized for several months, cost
adjustments will not be applied until all data used are issued as final. If BLS changes the
methodology for calculating the ECI or components of the PPI, which causes historical data used
to calculate this cost adjustment to be restated, such changes shall only apply to future
adjustments and not to adjustments already implemented.
Cost adjustments shall not exceed five (5) percent per year and fifteen (15) percent in any four
consecutive years. As soon as possible after a Cost Adjustment Date, Contractor shall send to the
City a comparative statement setting out the change determined through the Cost Adjustment
Method and the increase or decrease in the Processing Fee that will be charged by the
Contractor.
On the next billing date after the receipt and approval by the City of the comparative statement
showing the calculated change to the Processing Fee, the City shall pay to the Contractor, or the
Contractor shall credit to the City, as the case may be, a lump sum equal to any increase or
decrease applicable to that portion of the current period which has elapsed, and thereafter, the
Processing Fee charged by the Contractor shall be modified to reflect any change until the next
Cost Adjustment Date, and a comparative statement is received and approved by the City.
Any fixed pass-through or add-on surcharges or costs, such as State fees on tonnage, host
municipality benefit fees, or any other government mandated surcharge, shall not apply to the
cost adjustment and will be deducted from the Processing Fee prior to calculating any annual
cost adjustment.
If any index defined herein shall not be determined and published, or if any index as it is
constituted on the Contract Date is thereafter substantially changed, there shall be substituted for
such index another index which is determined and published on a basis substantially similar to
the index being replaced as shall be mutually agreed upon by the City and the Contractor.
Listed below are the indices and Contractor's percentages of the indices that shall constitute the
basis for adjustment of the Processing Fee under this Contract. The percent of change applied to
cost adjustment shall be carried out to three (3) decimal places without rounding.
Indices and Contractor's Percentage of Each Index to be Applied in the Cost Adjustment
Fixed Price (31%)
Contractor has designated 31% of cost adjustment as constant with no change applied to that
percentage of the Processing Fee.
Industrial Handling Equipment (31%)
Contractor has designated 31% of Processing Fee to be adjusted by the "Industrial Handling
Equipment"component of the PPI, which is found under"Capital Equipment," commodity code
"11-44"on "Table 2—Producer Price Index and Percent Change for Selected Commodity
Groupings by Stage". (http://www.bls.gov/news.release/ppi.t02.htm)
Employment Cost Index (33%)
Contractor has designated 33% of Processing Fee to be adjusted by the ECI, a BLS index
separate from the PPI. ECI data for"South"under the"Region (3)"category on "Table 7—
Wages and Salaries (not seasonally adjusted) shall be used for the adjustment calculation.
(http://www.bls.gov/news.release/eci.t07.htm)
Fuels and Related Products and Power (4%)
Contractor has designated 4% of Processing Fee to be adjusted by the "Fuel and Related
Products and Power" component of the PPI, which is found under the"05" Commodity Code"
on"Table 3 —Producer Price Index for Selected Commodity Groupings".
(http://www.bls.gov/news.release/ppi.t03.htm)
No. 2 Diesel Fuel (M)
Contractor has designated 1% of Processing Fee to be adjusted by the No. 2 Diesel Fuel
component of"Fuel and Related Products and Power"in the PPI, which is found on the Producer
Price Index Commodity Data Table under the "05" Commodity Code, "Fuels and Related
Products and Power", "05730302 No. 2 diesel fuel".
http://data.bls.gov/labjava/outsidejsp?survey=wp
Example
Following is an example of the application of these indices with Contractor's percentages for
cost adjustment. In the example below, an annual factor of -0.707% would be applied to
Contractor's base Processing Fee to determine the Processing Fee for the next Contract Year.
Contractor's Processing Fee Applicable Previous Current Index Index % Applied
Adjustment Indices Index Index Index Value Percent to Cost
Percentage Value Value Change Change Adjustment
Fixed Price no escalation applied) 31% 0.0 0.0 0.0 n/a n/a
Industrial Handling Equipment 31% 137.4 137.2 -0.2 -0.15% -0.045%
Employment Cost Index 33% 150.2 146.3 -3.9 -2.60% -0.857%
Fuel & Power Costs 4% 82.9 89.1 6.2 7.48% 0.299%
Diesel Fuel 1°/, 116.7 104.6 12.1 10.37% 0.104%
Totals: 100% 1 0.707%
N
W W
w z T
N
� d
W La
�p
s
. c
o �
Z o`
U i
c
3
o
N m
N
I
c
0
U
�o
d
U
V
x
U
H W C
N c I Ea
W N
F p U
a d �
z
d d
v �
in c v
N N
N
d
C
p 2 3 o f
Z E a a
uj � a
Q u �
a ° d
V
vd v
u
2_ c
a z
CL
a v
> 0
d
O N
O F '
QL
2 a�
4 Waaaaaaaaaaaaaaaaaaaaa< aaaaaaaa
N w 1 OD 6 O r N C" O Lo W r- w 0 N N N N N N N N N N 0
N
Q p to
O
H
; k
LL
� ° $
{ § $
# 7 e ■
) ! 0 £
§ % L
L 3. 2 v
19 J
0 L
) k \ /
2 0 { §
) { 0 0
; £ ■ f = ƒ
c w 10 1 _ k
�
w
§
V
m >
N H
C
C FO•' ~
•V l0
V � �
d �
.. O c0 00 +' 0 00 00
00 t
d C N r- M y m C N M
O Z -y O Z m 0
C ~
00 00
0 LO « O in
r a1 M Z ,�J It Cl)
c
m = O � OfNN
C)N N
f- )
°o °o U) = o °o
c rnr- LO c ,0ti �
m Y
U LL v U u-
F' Q0 ~ Q0
Cl) (O ik N LO
C14 LO V >
H ~
0
Cl a a n a a a a a a a a a a a n a n n a a a a
m
QQQQQQQQQQQ mQQQQQQQQQ ¢ Q
N N N N N N N N N N N
Q � O
t
C
O
Attachment E
GUARANTY AGREEMENT
THIS GUARANTY AGREEMENT is made and dated as of 3— ZlA , 2003,
between Abitibi-Consolidated Inc., a company organized and existing under the laws of Canada
(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 Abitibi-Consolidated Corp., a corporation organized and existing
under the laws of Delaware and duly authorized to do business in the State of Texas (the
"Compan "), have entered into a Contract for Collection Services to the City, dated
' Z U , 2003, as renewed and amended from time to time (the "Contract")
whereby the Company has agreed to provide services for the processing of recyclable material,
all as more particularly described therein. Company in this Agreement shall mean Contractor as
defined in the Contract.
The Company is subsidiary of the Guarantor.
The City will enter into the Contract only if the Guarantor guarantees the
performance by the Company of all of the Company's responsibilities and obligations under the
Contract as set forth in this Guaranty Agreement (the "Guaranty").
In order to induce the execution and delivery of the Contract by the City and in
consideration thereof, the Guarantor agrees as follows:
ARTICLE I
DEFINITIONS AND INTERPRETATION
SECTION I.I.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 I.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.
E-1
(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.
(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.
(I) 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 II.I. REPRESENTATIONS AND WARRANTIES OF THE
GUARANTOR. The Guarantor hereby represents and warrants that:
E-2
(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 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.
E-3
(H) Consideration. This Guaranty is made in furtherance of the purposes for
which the Guarantor has been organized, and the assumption by the Guarantor of its obligations
hereunder will result in a material benefit to the Guarantor.
ARTICLE III
GUARANTY COVENANTS
SECTION 111.1. GUARANTY TO CITY. The Guarantor hereby absolutely,
presently, irrevocably and unconditionally guarantees to the City for the benefit of the City
(1) the full and prompt payment when due of each and all of the payments required to be credited
or made by the Company under the Contract (including all amendments and supplements
thereto) to, or for the account of, City, when the same shall become due and payable pursuant to
this Guaranty, and (2) the full and prompt performance and observance of each and all of the
Obligations. Notwithstanding the unconditional nature of the Guarantor's obligations as set forth
herein, the Guarantor shall have the right to assert the defenses provided in Section 3.4 hereof
against claims made under this Guaranty.
SECTION III.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.
E-4
SECTION III.3. GUARANTY ABSOLUTE AND UNCONDITIONAL.
The obligations of the Guarantor hereunder are absolute, present, irrevocable and unconditional
and shall remain in full force and effect until the Company shall have fully discharged the
Obligations in accordance with their respective terms, and except as provided in Section 3.4
hereof, shall not be subject to any counterclaim, set-off, deduction or defense (other than full and
strict compliance with, or release, discharge or satisfaction of, such Obligations) based on any
claim that the Guarantor may have against the Company, the City or any other person. Without
limiting the foregoing, the obligations of the Guarantor hereunder shall not be released,
discharged or in any way modified by reason of any of the following (whether with or without
notice to, knowledge by or further consent of the Guarantor):
(1) the extension or renewal of this Guaranty or the Contract up to the
specified Terms of each agreement;
(2) any exercise or failure, omission or delay by the City in the exercise of
any right, power or remedy conferred on the City with respect to this Guaranty or the
Contract except to the extent such failure, omission or delay gives rise to an applicable
statute of limitations defense with respect to a specific claim;
(3) any permitted transfer or assignment of rights or obligations under the
Contract by any party thereto (other than a permitted assignment to a replacement
contractor in the event of a termination of the Company pursuant to Section 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
E-5
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
(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 IIL4. 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
E-6
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 III.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, rile 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;
(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 III.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.
E-7
SECTION III.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 III.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 III.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.
ARTICLE IV
GENERAL COVENANTS
SECTION IV.I. 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.
E-8
(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-9
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:
Abitibi-Consolidated Inc.
C/o: Legal Services
1155,Metcalfe,bureau 800
Montreal, Quebec
Canada, H3B 5H2
Fax: 514-394-3644
(b) If to the City: City of Fort Worth, Department of Environmental Management
1000 Throckmorton
Fort Worth,Texas 76102
Attn: Kim Mote, Assistant Director of Environmental Management
With a copy to: Brian Boerner, Director of Environmental Management; and
City Attorney's Office
Either party may, by like notice, designate further or different addresses to which subsequent notices shall
be sent. Any notice hereunder signed on behalf of the notifying party by a duly authorized attorney at law
shall be valid and effective to the same extent as if signed on behalf of such party by a duly authorized
officer or employee. Notices and communications given by mail hereunder shall be deemed to have been
given five (5) days after the date of dispatch; all other notices shall be deemed to have been given upon
receipt.
GBB/C0101206 E-10 3/18/03
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.
ABITIBI-CO OLIDATED INC., as Guarantor
ATTEST: By:
Printed ame: ohn Weaver
Title: es' ent and Chief Executive Officer
Accepted and Agreed to by:
[City Seal] CITY OF RT WOR
EST: By.
Pri nted Name :Libby Watson
Title: Assistant City Manager
GBB/C0101206 E-11 3/18/03
THE STATE,OF'T'FxAS NO. MS3031410 (GCNA) / 6200503 (GENERAL)
COUNTY OF TARRWf
KNOW ALL MEN By THESE PRESENTS: That we, Ab GENERALCI N olidN zcd Corp-, OF corporation of the
Stab• of DELAWARE herettiafter callead Frincipal and
a corporation organized and existing under the laws the SC lc of WASHINGTON and fully authorized to
transact business in the Sian of Texas,as Surety,are held and firmly bound unto the City of Fort Worth,a
municipal corporation organized and existing under the laws of the State of Texas hereinafter called
Ow;trr, im the penal sum of sir hundred seventy-tight thousand five hundred dollars (S 6 75,500.00) in
lawful M=ey of the United States,to be paid in Fare WoT*Tarrant County, Texas, for the payment of
which sam well and truly be made, vet hereby bind ourselves, our heirs, exzeutors, administrators, and
successors,jointly and severally,firmly by these presents_
THE CONDITION OF THIS OBLIGATION i5 36,1 that
Whereas, the Principal entered Into a certaui C04tfact with the City of Fort Wntth, the Owner
dais:d the 17THday of MARCH 2003, a copy of tivliteh t hercta attached and made a part hereof, for
the-
Processing setvuees for collected Single-stream Recyclable: (thr'`Recycling Serviees'l RENEWABLE ANNUALLY AS PER
CLAUSE 30 OF THE CONTRACT FOR THE PROCESSING OF RECYCLABLE MATERIALS.
Designated as Projcct Number 0200$? Solid WasteServiees, copy of which Contract is licreto
attached,referred to, and rude a part hereof as fully and*,the same extent as if copies at length herein
such project and construction being hereniaftcr referred to Bs the"work".
NOW TIHFREFORE, if tht Principal shall wel I truly and faithfully perform the work in
accordance with the plans, specification, and Contract documents during the original term thereof, and
any extensions thereof which may be granted by the Owner with or without notice to the Surety,and if he
shall satisfy all cla,mi and demands incurred Mader surd Contract, and shall fully indemnify and save
harmless the Owner from all costs and damages wbkt it may suffer by reason of failure to do so, and
shall reinnbursc and repay the Owner all outlay and expanss,which the Owner may lacer in making good
any default, then this obligation shall be void;otherwise to -emain in full force and effect.
PROVIDED FURTHER that if any legal action be filod upon this bond, venut shall lie in Tarrant
County,State of Texas.
AND PROVIDED FURTHM that the said Surety, for value received, hereby stipulates and
agrees that no rlitange,exwnsion of time, alter3non or addition to the Tereus of the Contact or to the work
to be performed thereunder or The specifications accompanying the same shall in eery Way affect its
obligation on this bond, and it does hereby waive notice oAMy such change,extension of time alremum
or addtnon to the terms of rho Contract or w the work or to the specifications.
t
IN WITNESS WHMOF, $Us insiru neat is =e(n ted m�-_Counmpasts each one of which
y of - MARCH
shall be donned au c�inal,this the 28T--H— ,2003:
ABITIBI CONSOLIDATE CORP.
Pri!cipal
A77EST:
Ily
(ptincipal)Secretary A fl 16 _ c
(Fnnted NameMile)
(SEAL)
ADDRESS
dT—Y/ST.%TE/ZTP
ADAMAS BUILDING, 3RD FLOOR, 4634 154TH PLACE N.E. GENERAL INSURANCE COMPANY OF AMERICA
( (Surety)
Address)
REDMOND, WASHINGTON, 98052
ATTEST:
(Surly) Secretary By
(Attorney-in Fact)(5)
R.F. SMITH
(SEAT.) (printed Anomey-in-Fart)
W' es to S
FRANCOI S L VES E te: Date of Bond=List n.t be prier to date of Contract
ry1 Carrm.Y ware u/Conr Wert
�1j n G,rpomaow,a Parrws ep ar and Indt.;4a as eau maybe
Carrm Nm w Of gnaw
1JContraag,j PH't"t 5*t-all pcnae/s SAAbler sure Dann
fig/ A:rrm rwAr vjP&--atf dt orro sauA be OttDeALrt to Wnd by/lrromo-in-riser
POWER SAFECO INSURANCE COMPANY OF AMERICA
S A F E C Ory
P31 GENERAL INSURANCE COMPANY OF AMERICA
OF ATTORNEY HOME OFFICE: SAFECO PLAZA
SEATTLE,WASHINGTON 98185
No. 7480
KNOW ALL BY THESE PRESENTS:
That SAFECO INSURANCE COMPANY OF AMERICA and GENERAL INSURANCE COMPANY OF AMERICA,each a Washington corporation,does each hereby
appoint
**********NATHALY SANSCARTIER;CLAUDETTE DESFOSSES;LUC LANTHIER;PIERRE SURPRENANT;R.F.SMITH;MICHEL BOURQUE;DANIEL REID;YVES
BOILARD;Montreal,
its true and lawful attorney(s)-in-fact, with full authority to execute on its behalf fidelity and surety bonds or undertakings and other documents of a similar character
issued in the course of its business,and to bind the respective company thereby.
IN WITNESS WHEREOF, SAFECO INSURANCE COMPANY OF AMERICA and GENERAL INSURANCE COMPANY OF AMERICA have each executed and
attested these presents
this 3rd day of January 2003
4 V C�`C-�
CHRISTINE MEAD,SECRETARY MIKE MCGAVICK,PRESIDENT
CERTIFICATE
Extract from the By-Laws of SAFECO INSURANCE COMPANY OF AMERICA
and of GENERAL INSURANCE COMPANY OF AMERICA:
"Article V, Section 13. - FIDELITY AND SURETY BONDS ...the President, any Vice President,the Secretary,and any Assistant Vice President appointed for that
purpose by the officer in charge of surety operations,shall each have authority to appoint individuals as attorneys-in-fact or under other appropriate titles with authority to
execute on behalf of the company fidelity and surety bonds and other documents of similar character issued by the company in the course of its business... On any
instrument making or evidencing such appointment, the signatures may be affixed by facsimile. On any instrument conferring such authority or on any bond or
undertaking of the company,the seal,or a facsimile thereof,may be impressed or affixed or in any other manner reproduced;provided,however,that the seal shall not
be necessary to the validity of any such instrument or undertaking."
Extract from a Resolution of the Board of Directors of SAFECO INSURANCE COMPANY OF AMERICA
and of GENERAL INSURANCE COMPANY OF AMERICA adopted July 28, 1970.
"On any certificate executed by the Secretary or an assistant secretary of the Company setting out,
(i) The provisions of Article V,Section 13 of the By-Laws,and
(ii) A copy of the power-of-attomey appointment,executed pursuant thereto,and
(iii) Certifying that said power-of-attorney appointment is in full force and effect,
the signature of the certifying officer may be by facsimile,and the seal of the Company may be a facsimile thereof."
I, Christine Mead, Secretary of SAFECO INSURANCE COMPANY OF AMERICA and of GENERAL INSURANCE COMPANY OF AMERICA,do hereby certify that
the foregoing extracts of the By-Laws and of a Resolution of the Board of Directors of these corporations,and of a Power of Attorney issued pursuant thereto,are true
and correct,and that both the By-Laws,the Resolution and the Power of Attorney are still in full force and effect.
IN WITNESS WHEREOF,I have hereunto set my hand and affixed the facsimile seal of said corporation
this 28TH day of MARCH 2003
E COMp
SEAL y SEAL
i x
4r 1953_-.� lazy
Gf NASA" cp( 5 ' CHRISTINE MEAD,SECRETARY
S-0974/SAEF 2/01 ®A registered trademark of SAFECO Corporation
01/06/2003 PDF
EXHIBIT B
IMPORTANT NOTICE TO SURETY BOND CUSTOMERS REGARDING
THE TERRORISM RISK INSURANCE ACT OF 2002
As a surety bond customer of one of the SAFECO insurance companies (SAFECO Insurance Company of
America, General Insurance Company of America, First National Insurance Company, American States Insur-
ance Company or American Economy Insurance Company), it is our duty to notify you that the Terrorism Risk
Insurance Act of 2002 extends to"surety insurance". This means that under certain circumstances we may be
eligible for reimbursement of certain surety bond losses by the United States government under a formula
established by this Act.
Under this formula, the United States government pays 90%of losses caused by certified acts of terrorism that
exceed a statutorily established deductible to be paid by the insurance company providing the bond. The Act
also establishes a $100 billion cap for the total of all losses to be paid by all insurers for certified acts of
terrorism. Losses on some or all of your bonds may be subject to this cap.
This notice does not modify any of the existing terms and conditions of this bond, the underlying agreement
guaranteed by this bond, any statutes governing the terms of this bond or any generally applicable rules of law.
At this time there is no premium change resulting from this Act.
56248 2/D3
SAFECO'
State of Texas Surety Bond Claim Notice
In accordance with Section 2253.021(f) of the Texas Government Code and
Section 53.202(6) of the Texas Property Code, any notice of claim to the named
surety under this bond(s) should be sent to:
SAFECO Surety
Adams Building
4634 154th PL NE
Redmond, WA 98052
Mailing Address:
SAFECO Surety
PO Box 34526
Seattle, WA 98124
Phone: (425) 376-6535
Fax: (425) 376-6533
www.SAFECO.com
S-8128/SAEF 8/01 ®A registered trademark of SAFECO Corporation
FRP
City of Fort Worth, Texas
"agor And Council Communication
DATE REFERENCE NUMBER I LOG NAME
PAGE
11/5/02 C-19337 52STREAM 1 of 2
SUBJECT AUTHORIZATION TO EXECUTE A CONTRACT WITH ABITIBI CONSOLIDATED FOR
SINGLE STREAM RECYCLABLES
RECOMMENDATION:
It is recommended that the City Council:
1. Authorize the City Manager to negotiate and execute a contract with Abitibi Consolidated for single
stream recyclables processing; and
2. Authorize this contract to begin April 1, 2003, and expire March 31, 2013, with three ten-year
renewal options. Under the terms of this contract, the City will be obligated to pay processing fees
of approximately $29.50 per ton, with the estimated cost of $678,000 in FY2002-2003. The fees
owed will be offset by rebated revenues realized from the sale of the recyclables. It is anticipated
that the rebated revenues will exceed the amount of the processing charges and provide the City
with a positive cash flow on this contract of approximately $611,900 in the first year. The estimated
value of the rebated revenues from this contract over the ten-year term is $9,260,391.
DISCUSSION:
On July 2, 2002, the City received responses to a Request for Proposal (RFP) for a variety of solid
waste services, to include recyclables processing.
Following initial proposal evaluations, the evaluation committee comprised of 14 representatives from
the City Manager's Office, M/WBE Office, Internal Audit, the Finance Department, and the Law
Department, with significant input from the consulting firm of Gershman, Brickner and Bratton, solicited
best and final offers from the RFP respondents. After evaluation of best and final offers, firms were
selected for interviews, presentations and negotiations. Abitibi Consolidated is recommended as
awardee for recyclables processing based on evaluation factors enumerated on the attached RFP
evaluation matrix.
Recyclable processing is the acceptance of delivery of recyclable materials from the awarded recycling
collector, separation of mixed commodities and diversion to the recycling loop.
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 five responses for
recyclables processing.
PROPOSAL EVALUATION - See attached evaluation matrix.
City of Fort Worth, Texas
"agor And council Communication
DATE REFERENCE NUMBER LOG NAME PAGE
11/5/02 C-19337 52STREAM 2 of 2
SUBJECT AUTHORIZATION TO EXECUTE A CONTRACT WITH ABITIBI CONSOLIDATED FOR
SINGLE STREAM RECYCLABLES
M/WBE - Abitibi Consolidated is in compliance with the City's M/WBE Ordinance by committing to a
minimum of 25% M/WBE participation. The City's goal on this project is 25%.
RENEWAL OPTIONS - This contract may be renewed for up to three successive ten-year terms at the
City's option. This action does not require specific City Council approval provided that the City Council
has appropriated sufficient funds to satisfy the City's obligations during the renewal term.
FISCAL INFORMATION/CERTIFICATION:
The Finance Director certifies that the Environmental Management Department will be responsible for
the collection and deposit of funds due to the City under this contract.
CB:k
Submitted for City Manager's FUND ACCOUNT CENTER AMOUNT CITY SECRETARY
Office by: (to)
PE64 481042 0525004 $611,900.00
Charles Boswell 6183
Originating Department Head:
Brian Boerner 8079 (from) APPROVED 11/05/02
Additional Information Contact:
Brian Boerner 8079