HomeMy WebLinkAboutContract 28508 CITY SECRETARY
CONTRACT No.
STATE OF TEXAS §
COUNTIES OF TARRANT,
DENTON AND WISE §
CONTRACT FOR TYPE IV WASTE, C&D WASTE, AND LARGE BRUSH AND
LARGE BULKY WASTE DISPOSAL, C&D,WHITE GOODS,AND YARD WASTE
PROCESSING
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 IESI TX Corporation doing bypsiness n Texas, acting herein by and through
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its duly authorized VVI&S .l�fbEArr hereinafter called "Contractor."
THIS CONTRACT shall be for Type IV Waste, C&D Waste, and Large Brush and Large Bulky
Waste Disposal, and C&D, White Goods and Yard Waste Processing as indicated in Contractor's
Proposal and City's specifications as listed in the RFP and in this Contract.
KNOW ALL BY THESE PRESENTS:
1.
DEFINITIONS
In this Contract, the following words and phrases shall be defined as follows;
Acceptable Waste shall mean the following as defined herein, Type IV Waste, C&D Waste,
Large Brush and Large Bulky Waste, White Goods, and Yard Waste.
Affiliate shall mean any parent, subsidiary, or any other entity controlling, controlled by, or
under common control, of IESI Corporation, or IESI TX Corporation .
Applicable Law shall mean any statute, law, constitution, charter, ordinance, resolution,
judgment, order, decree, rule, regulation, directive, interpretation, standard or similarly binding
authority, which in any case, shall be enacted, adopted, promulgated, issued or enforced that
relates to or affects the City, the Contractor, or the performance by a party of its obligations
hereunder.
Bulky Items shall mean indoor/outdoor furniture, treated lumber, construction materials,
mattresses and box springs, carpet, swing sets, plastic swimming pools, large toys, bicycles, fish
aquariums, large household appliances, and other similar items.
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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 franchise or a permit, or designated as
duly authorized to collect, receive, carry, haul or transport Solid Waste and/or Recyclables
within the City.
Collection Services shall mean removal of Solid Waste or Recyclables for transport elsewhere,
or cause of such to be done.
Commission shall mean the Texas Commission of Environmental Quality (TCEQ), formerly
known as the Texas Natural Resource Conservation Commission (TNRCC).
Construction and Demolition Waste (C & D) shall mean waste resulting from construction or
demolition projects; includes all materials that are directly or indirectly the by-products of
construction work or that result from demolition of buildings and other structures, including, but
not limited to, bricks, concrete, other masonry materials, paper, cartons, gypsum board, wood,
excelsior,rubber, and plastics.
Contract shall mean this document, the RFP and all attachments to this document.
Contract Year shall mean October through September of each year, except that the first
Contract Year shall be the partial year April 1, 2003 through September 30, 2003.
Cost Adjustment Method shall mean the adjustment of unit prices for disposal and processing
of materials under this Contract with the City by the Contractor for each year of the Contract.
The first adjustment shall cover the period between April 1, 2003 through September 30, 2003,
according to the procedure shown in Attachment A and shall be effective October 1, 2003. The
price may be adjusted upward or downward to reflect changes in the cost of operations by a cost
adjustment calculation using indices applicable to certain services.
Day shall mean calendar day, unless otherwise specified.
DEM shall mean the Department of Environmental Management of the City of Fort Worth.
Director shall mean the Director of DEM or his designated representative.
Disposal shall mean the dumping or depositing of Type IV Waste, C&D Waste, and Large Brush
and Large Bulky Waste into or onto a Disposal Facility so that the waste or any constituent
thereof is introduced into the environment.
Disposal Facility shall mean a sanitary landfill or other Disposal Facility permitted by TCEQ
and/or other applicable regulatory agency with jurisdiction and utilized for the receipt or final
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disposition of Type IV Waste, C&D Waste, and Large Brush and Large Bulky Waste, White
Goods and Yard Waste generated within the City.
Garbage shall mean Solid Waste consisting of putrescible animal and vegetable waste materials
resulting from the handling, preparation, cooking, and consumption of food, including waste
materials from markets, storage facilities, handling, and sale of produce and other food products.
Governmental Body shall mean, as appropriate, any one or several of any court of competent
jurisdiction, the United States of America, the State of Texas and/or any appropriate 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 disposal and processing of
the material described herein.
Government Approvals shall mean all licenses, permits and approvals required from any
Governmental Body for performance of the Contractor's obligations under this Contract.
GVW shall mean gross vehicle weight.
Guarantor shall mean IESI Corporation.
Guaranty shall mean the Guaranty Agreement, dated as of [ 3 ,t0 ], 2003 from the
Guarantor to the City.
Hazardous Waste shall mean any Solid Waste identified or listed as a Hazardous Waste by the
administrator of the United States Environmental Protection Agency (U.S.E.P.A) pursuant to the
federal Solid Waste Disposal Act, as amended by the Resource Conservation and Recovery Act
of 1976, 42 USC, §6901 et seq, as amended.
Landfill shall mean the Contractor's Landfill located at 4144 Dick Price Road, Kennedale,
Texas.
Large Bulky Waste shall mean larger discarded Bulky Items such as White Goods, mattresses,
carpets, large furniture, and oversized Yard Waste (tree trunks, root balls, large branches) but
specifically excludes Treated Wood.
Large Brush shall mean shrub limbs, trimmings and tree limbs or sections greater than three (3)
inches in diameter, untreated lumber (free of hardware and nails) and other similar items, and
excludes tree surgery and related work, which become the responsibility of the contractor hired
by the owner or occupant of a Service Unit.
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 for a term of one year, shall be
continuously renewed, extended or replaced so that it remains in effect until 180 Days after the
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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 of City shall mean those services or duties for which this Contract calls
upon by the City to perform unless specifically noted otherwise within the terms of this Contract,
and for which, by the terms of this Contract may constitute grounds for penalties or termination
if the City fails to perform such services or duties.
Material Obligation of Contractor shall mean the acts or omissions of Contractor as set forth
in Section 15 herein.
Medical Waste shall mean waste generated by health-care-related facilities and associated with
healthcare activities, not including Garbage or Rubbish generated from offices, kitchens, or other
non-health-care activities. The term includes special waste from health care-related facilities
which is comprised of animal waste, bulk blood and blood products, microbiological waste,
pathological waste, and sharps as those terms are defined in 25 TAC §1.132 (Definition,
Treatment, and Disposition of Special Waste from Health-Care Related Facilities) or any
successor. The term does not include Medical Waste produced on farmland and ranchland as
defined in Agriculture Code, §252.001(6) (Definitions--Farmland or ranchland) or any successor,
nor does the term include artificial, nonhuman materials removed from a patient and/or requested
by a patient, including but not limited to orthopedic devices and implants.
MWBE shall mean a minority or women's business enterprise.
Performance Bond shall mean a corporate surety bond that guarantees compensation to the City
in the event that the City must assume the obligations or duties of the Contractor in order to
continue the services defined in the Contract.
Person shall mean any individual, partnership, co-partnership, firm, company, corporation,
association, joint stock company, trust, estate, governmental entity, or any other legal entity; or
their legal representatives, agents, or assigns. This definition includes all Governmental Bodies.
Processing (Process) shall mean those activities which include, but are not limited to, the
separation and preparation of Type N Waste, C&D Waste, and Large Brush and Large Bulky
Waste and White Goods for reuse or recycling, or separation and preparation of Yard Waste to
produce a marketable commodity or product(s) for beneficial use.
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
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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 required to
be submitted with the proposal.
Rubbish shall mean the same as Refuse.
Type IV Waste shall mean brush such as tree and shrub limbs and trimmings, C&D, and/or
Refuse that are free of putrescible and free of household wastes as is regulated by Applicable
Law.
Service Unit shall mean a Single-Family dwelling, two-unit Multi-Family dwelling, and
commercial generator that currently sets out their municipal Solid Waste in one-way containers,
and other units such as aggregate containers and lamppost containers designated by the City for
service.
Ton shall means a short ton of 2000 pounds.
Trash shall mean the same as Refuse.
Treated Wood shall mean wood that has been treated or preserved with chromated copper
arsenate (CCA), pentachlorophenol, or other chemicals which have been classified as known
human carcinogens by the U. S. E. P. A.
Unacceptable Waste shall mean any and all waste, including but not limited to Hazardous
Waste, special waste, Medical Waste and friable asbestos, the acceptance and handling of which
by City Collector(s) would cause a violation of any permit condition, legal or regulatory
requirement.
Unanticipated Events shall mean severe weather events which are not reasonably anticipated
for the geographical area, such as hurricanes, tornadoes, floods, ice storms or hail, and other
disasters such as fires.
Uncontrollable Circumstances includes Unanticipated Events and shall mean any act, event or
condition (excluding those which result from the willful or negligent action or inaction of a
party) occurring during the term that has, or may reasonably be expected to have, a material and
adverse effect on a right or an obligation of either or both parties to this Contract, if such act,
event or condition is beyond the reasonable control of the party relying thereon as justification
for not performing under this Contract. Uncontrollable Circumstances shall include, but are not
limited to, the following: an act of God, landslide, lightning, earthquake, fire, explosion, flood,
ice storm, nuclear radiation, acts of a public enemy or terrorist, war, blockade, insurrection, riot
or civil disturbance or any similar occurrence, or a condemnation or other taking by or on behalf
of any public, quasi-public or private entity, but not including reasonably anticipated weather
conditions for the geographic area of the City; - - - —-- --
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Uncontrollable Circumstances shall not include:
(1) insolvency or inability to pay any amount;
(2) inability to obtain any letter of credit, surety bond, payment or
performance bond or any other security required by this Contract;
(3) a public or private labor dispute relating to the collection, transportation or
disposal of Solid Waste.
Vehicle shall mean every device in, upon, or by which Contractor uses to transport materials
and/or waste or drawn upon a public or private highway or road to perform the services and
related services described for by this Contract.
Violation shall mean any determination by a Governmental Body that the Contractor is in
violation of or not in compliance with any portion of its permit(s) or Applicable Law.
White Goods shall mean appliances such as refrigerators, stoves, washers, dryers and other large
enameled appliances, which do not contain PCB or CFC units and have been officially certified
to that effect.
Working Day shall mean Monday through Saturday and holidays, except New Year's Day,
Thanksgiving Day, and Christmas Day.
Yard Waste shall mean leaves, yard trimmings, yard and garden debris, Christmas trees, and
brush, including clean woody vegetative material not greater than six (6) inches in diameter,
which results from landscaping maintenance and land-clearing operations. The term does not
include stumps, roots, or shrubs with intact root balls, and specifically excludes all Treated
Wood.
2.
SCOPE OF CONTRACTOR'S SERVICES
Contractor hereby covenants and agrees to diligently and faithfully perform the public service of
(1) Processing of Type IV Waste, C&D Waste, Yard Waste, Large Brush and Large Bulky
Waste and marketing and/or distributing the recovered products from the Processing for
recycling or beneficial use, and the disposing of residues from the Processing; (2) storing,
Processing as applicable, and marketing White Goods for recycling; and (3) Disposal of Type IV
Waste, C&D Waste, Large Brush and Large Bulky Waste and Yard Waste that is not able to be
Processed at Contractor's Landfill. These services shall include the furnishing of all labor, tools,
equipment, materials, insurance, Performance Bonds, supervision and all other items necessary
to the performance of such work and services. All work and services to be performed under this
Contract shall be carried out in the manner, at the times, in the locations and at the unit prices
specified herein.
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A. Weighing and Unloading of all Material
1. Contractor shall install a truck scale for the weighing of all material described
herein, delivered to its Landfill at a location as shown in Attachment B.
2. Contractor shall direct City Collector(s) to a Processing area on the Landfill
where the material described herein will be unloaded and Processed.
B. Type IV Waste, C&D Waste and Large Brush and Bulky Waste Processing and Disposal
1. Contractor shall accept and assume ownership of all Type IV Waste, C&D Waste
and Large Brush and Bulky Waste delivered to its Landfill.
2. Contractor shall Process Type IV Waste, C&D Waste and Large Brush and Large
Bulky Waste for recovery and marketing or beneficial use of recyclable materials
and shall dispose of residue from such Processing.
3. Contractor shall dispose of all Type IV Waste and C&D Waste, Large Brush and
Large Bulky Waste that is not able to be Processed.
C. White Goods
1. Contactor shall provide the City, at no additional charge, an appropriate area at
the Landfill, for which the City shall in no way be held responsible, for the
placement of White Goods before incoming loads are weighed. Contractor shall
provide a description of the location to the Director within sixty (60) Days of the
execution of this Contract.
2. Contractor shall Process and market White Goods for sale or for beneficial use.
D. Yard Waste Processing
1. Contractor shall accept all Yard Waste under the terms of this Contract.
2. Contactor shall Process all Yard Waste for mulch, compost or other products for
marketing or for some other beneficial use approved under Applicable Law.
3. Contractor shall dispose of all Yard Waste that is not able to be processed as well
as residue from Processing.
4. Contractor shall provide the City with a storage area that can contain at least 200
cubic yards of mulch material from the waste accepted from the City or the City
Collector(s) to be used by the City in its sole determination. Contractor shall load
City Collector(s)'s or City's Vehicles or containers with said mulch for backhaul
as directed by the Director. As mulch is used by the City, Contractor shall
replenish the pile of mulch to maintain a 200 cubic yards level.
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E. Diversion Training
Contractor shall provide diversion training for City staff and City Collector(s) on the
correct procedures for separation of materials for Disposal and Processing of Type IV
Waste, C&D Waste, Large Brush and Large Bulky Waste and Yard Waste to facilitate
operations at the Processing facility and Landfill.
F. Maximum Recovery
Contractor shall provide for maximum recovery, to the best of Contractor's ability, for
the recycling and marketing and/or beneficial use of the materials brought to Contractor's
Landfill.
3.
SCOPE OF CITY SERVICES
The City agrees to.perform the following services:
A. Designate a City representative to provide timely direction to the Contractor and render
City decisions;
B. Timely review and respond, if necessary, to reports submitted by Contractor;
C. Monitor the Personnel, Equipment, and Vehicle Standards as described in the terms of
this Contract;
D. Inform Contractor of complaints made by City Collector(s) in a timely manner;
E. Work with Contractor and City Collector(s) to resolve customer service issues; and
F. Determine and assess liquidated damages as determined by the Director.
4.
TERM
The term of the Contract shall be for a period of 10 (ten) years commencing on
April 1, 2003 and ending March 31, 2013. City shall have the right to extend this
Contract for up to three (3) consecutive ten (10) year renewal terms, provided City and
Contractor agree in writing at least thirty (30) days prior to the end of the initial or
renewal term. All renewal 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.
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5.
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
Landfill shall be made available to receive Acceptable Waste from the City Collector(s) and for
Processing and or Disposal every scheduled Day, including bad weather Days, unless the
Director informs Contractor of a suspension of service.
6.
PAYMENT
A. For and in consideration of the above Processing and Disposal services performed in
accordance with this Contract, City agrees to pay Contractor the agreed upon per-
weighed-Ton price for Processing and/or Disposal of the material described herein as
follows:
1. The agreed upon per weighed Ton price for Processing shall be eleven dollars and
fifty cents ($11.50) per Ton in the first Contract Year and shall be adjusted by the
Cost Adjustment Method for each Year thereafter as described in Attachment A;
2. The agreed upon per weighed Ton price for Disposal shall be fourteen dollars and
twenty cents ($14.20) per Ton in the first Contract Year and shall be adjusted by
the Cost Adjustment Method for each Year thereafter as described in Attachment
A;
3. less any liquidated damages assessed by the City.
B. The agreed upon per weighed Ton price for Processing and Disposal of the material
described herein shall include any and all costs for the Disposal of residuals from the
Processing of material described herein. Furthermore, it is agreed by the parties that the
Cost Adjustment Method as shown in Attachment A includes the adjustment of any and
all costs for the Disposal of residuals from the Processing of material described herein
after the first Contract Year.
C. Within fifteen (15) Days of the end of each month during which Processing and Disposal
services are provided by the Contractor, Contractor shall submit to the City a monthly
report and invoice. Payment shall be made to the City or Contractor within thirty (30)
Days of receipt and approval by the Director of the Contractor's final monthly invoice of
Processing and Disposal services provided and monthly report. The invoice shall be
submitted to the City in a form as shown as Attachment C.
7.
UNIT PRICE ADJUSTMENT
Contractor hereby agrees to accept payments adjusted in the manner as reflected in the
Cost Adjustment Schedule included in this Contract as Attachment A, as full compensation for
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services rendered. Contractor will submit documentation of the payment adjustment criteria to
the City along with its annual request for rate adjustment.
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 (1)the name and occupation of each worker employed
by the Contractor for the Processing and Disposal services; and (2)the actual per
diem wages paid to each worker, for a period of three (3) years following the
commencement date. These records shall be open at all reasonable hours for
inspection by the City; and
3. post the prevailing wage rates in a conspicuous place at Contractor's Landfill at all
times.
B. Contractor must provide thirty (30) Days notice of a change in key personnel (e.g.,
District Manager and Facility Manager) to the Director and introduce such new personnel
to the Director of DEM. Contractor may bring in from outside the City its key personnel.
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.
C. All workers shall have sufficient skill, ability, and experience to properly perform the
work assigned to them and operate any equipment and Vehicles necessary to properly
carry out the performance of the assigned duties.
1. Contractor shall provide suitable operational and safety training for all of its
employees who utilize or operate equipment and Vehicles for Processing and/or
Disposal of materials under the Contract.
2. 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, and shall prohibit the use of loud or profane
language. If any employee is found not to be courteous or not to be performing
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services in the manner required by the Contract, Contractor shall take all appropriate
corrective measures. If City has notified Contractor of a complaint related to
discourteous or improper behavior, Contractor will consider reassigning the employee
to duties not entailing contact with the public while Contractor is pursuing its
investigation and corrective action process.
3. Contractor shall designate qualified employees as supervisors of operations.
Supervisors will inspect 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.
4. All employees of the Contractor performing work under the Contract shall be
uniformed showing their association with the Contractor while operating under the
Contract. Contractor shall provide a list of current employees, contractors and
subcontractors to City upon request.
9.
VEHICLES AND EQUIPMENT
A. Contractor shall furnish and maintain all equipment and Vehicles used for services under
this Contract in accordance with the standards set out in the RFP, and as is considered to
be necessary for prosecution of the work in an acceptable manner and at a satisfactory
rate of progress. All equipment, tools, Vehicles and machinery used for handling
materials and executing any part of the work shall be maintained in satisfactory, safe and
efficient working condition. Equipment and Vehicles used by Contractor 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.
B. Contractor shall inspect each piece of equipment and each Vehicle daily to ensure that all
equipment and Vehicles are operating properly. Equipment and Vehicles which are not
operating properly shall be taken out of service until repaired and operating properly; and
Contractor shall perform all scheduled maintenance functions in accordance with the
manufacturer's specifications and schedule. Contractor shall keep accurate records of all
equipment and Vehicle maintenance, recorded according to date, engine hours, nature of
repair and the signature of a maintenance supervisor and shall make such records
available to the City upon request to the extent necessary to ensure compliance with
manufacturer's recommended scheduled equipment or Vehicle service.
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10.
MWBE REQUIREMENTS
In keeping with the City's MWBE ordinance, Contractor agrees to the following:
A. A minimum of 15% of the total dollar value of this Contract will be paid as
compensation to MWBE firms. At the end of the first six (6) months of the first
Contract Year and at the end of the first Contract Year, the City shall review
Contractor's progress towards Contractor's MWBE commitment. Contractor shall
provide all necessary documentation to show its efforts to meet such commitment
upon request of the City.
B. Contractor will, during the term of this Contract, provide City with monthly and
quarterly reports detailing its compliance with the requirements for MWBE
participation, including but not limited to the activities of the MWBE and the dollar
value of those services, as required by the City. Contractor shall inform the City of
any sub-contracting opportunities which may arise during the term(s) of this Contract
in an effort to meet Contractor's MWBE commitment. 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 quarterly
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.
CONTINGENCY PLAN
Within ninety (90) Days of the commencement of the services 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 receive and Process and/or Dispose of Acceptable Waste from the City or
otherwise perform the services required under the terms of this Contract.
12.
REPORTING REQUIREMENTS
Contractor shall maintain and submit to the City accurate reports, which detail certain
activity related to the services pursuant to this Contract in a format approved by the City as
shown in Attachment D. These reports shall include data for all materials handled from
Contractor's services to the City.
A. Monthly reports shall include the following data:
1. Date, truck number, ticket number and net weight for all incoming loads;
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2. Daily and monthly total Tons of material by type of material received for
Processing and/or Disposal;
3. Tons of material, by type, and by Cubic Yards, marketed or distributed for
recycling and Tons of Material, by type, and by Cubic Yards, marketed or
distributed for beneficial use, including mulch or compost distributed to the City.
4. Processing payments due the Contractor;
5. Amount of mulch due and taken by the City;
6. Liquidated damages, if any, due the City; and
7. Net money due the Contractor or City.
B. Annual reports shall include all the above data, following the same format as the monthly
report.
C. Records shall be kept on a daily, weekly, cumulative monthly, and cumulative annual
basis, and shall be available to the City upon request.
D. Contractor shall file reports with the City in a timely manner, but on no less than a
monthly basis, specifying all complaints, accidents or incidents while performing any
duties pursuant to the terms of this Contract, outages or downtime, and inspections by
any regulatory agencies during the month of the report. 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 18.
13.
WEIGHTS AND MEASURES METHOD
Contractor shall weigh all material received at the Landfill from the City or City
Collector(s) and shall maintain certified scales of sufficient size and quality to accurately weigh
the material described herein for processing and disposal. The scales shall be in operation at all
times during the time Contractor receives material from the City or City Collector(s), except to
the extent due to an Uncontrollable Circumstance, but in no event shall any scale be inoperative
for a period exceeding two consecutive Days. Contractor will keep current and provide the City a
backup plan for weighing Vehicles when Contractor's 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 (Testing 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 by the
selected Testing Company, 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 such material brought into the
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Landfill by City Collector shall be estimated using the actual average truckload from receipt of
such materials from the past three months for the purposes of this Contract.
14.
LOCAL OFFICE AND CONTRACT ADMINISTRATION
Contractor shall maintain during the term of this Contract a fully operational business
office within the Fort Worth 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 shall designate a representative who the City may contact on a twenty-four
(24) hour basis in the event of an emergency and who is authorized to address all
issues that may arise. The Director shall also designate an individual to be contacted
by Contractor in an emergency. Both parties shall make their designation to the other
in writing within ten (10) days from the commencement of this Contract. Each party
shall be obligated to notify the other party within five (5) days if their designation
changes.
B. Contractor's local office shall be open during collection hours so that customers can
lodge complaints, requests for information, requests for service, etc. At a minimum,
the Contractor's local office shall be open during the hours of 8:00 a.m. and 5:00 p.m.
Monday through Friday, and 8:00 a.m. and 3:00 p.m. on Saturdays, or until
completion of tasks, whichever is latest.
C. Contractor's local office shall have a responsible person in charge during operating
hours on Working Days, and shall be equipped with sufficient communications
technology and sufficient competent personnel to receive all communications.
Contractor's communication personnel shall deal with all communications in a
courteous and polite manner and record all complaints. Contractor shall resolve all
complaints in an expeditious manner within the following twenty-four (24) hours,
excluding non-Working Days and hours. Contractor will have pre-recorded
announcements for all after-hours communications to provide information on holiday
office hours as well as other information the Director may reasonably require.
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15.
EVENTS OF DEFAULT BY CONTRACTOR
A. The following shall constitute events of default on the part of the Contractor except to the
extent caused by the occurrence of an Uncontrollable Circumstance or City's fault unless
otherwise specified herein:
1. Failure by the Contractor to perform any Material Obligation of Contractor under the
terms of this Contract, and continuance of such failure after (i)written notice thereof
has been provided by the Director specifying such failure and requesting that such
condition be remedied, and(ii) Contractor's failure to cure the default or immediately
initiate and diligently pursue reasonable action and cure such non performance within
fifteen(15)Days after receiving notice from the Director, provided, if such failure is
of a nature that it cannot be cured within such fifteen(15)Day period, Contractor
shall not be in default if Contractor commences the curing of such failure within such
fifteen(15)Day period, and diligently pursues the curing thereof and both City and
Contractor agree that the failure cannot be cured in fifteen (15) Days; or
2. The Contractor being insolvent or bankrupt or ceasing to pay its debts as they mature
or making an arrangement with or for the benefit of its creditors or consenting to or
acquiescing in the appointment of a receiver trustee, or liquidator for a substantial
part of its property; or a bankruptcy, winding up, reorganization, insolvency,
arrangement, or similar proceeding instituted by the Contractor, under the laws of any
jurisdiction or against the Contractor, if the Contractor does not take the appropriate
action to dismiss said proceedings; which proceedings has not been dismissed within
ninety(90) Days of the institution of such proceeding; or any action or answer by the
Contractor approving, consenting to, or acquiescing in, any such proceeding; or the
event of any distress, execution, or attachment upon the property of the Contractor
which shall substantially interfere with its performance hereunder.
3. The following acts or omissions by the Contractor shall constitute failure to perform a
Material Obligation 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 or
permits and necessary Governmental Approvals from City or a third party to
properly and legally execute the working operations.
c. Evidence that Contractor has abandoned the work.
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d. Failure on the part of Contractor to comply with the terms of this Contract or any
requirements herein, such as, but not limited to, failure to provide the required
insurance or Performance Bond, or to comply with any of the Director's
requirements as reasonably determined.
e. Indication that the Contractor has made an unauthorized assignment of the
Contract or any funds due hereunder for the benefit of any creditor or for any
other purpose.
f. Failure to supply complete and accurate information as required in this Contract.
g. Failure to maintain required level of MWBE participation as defined herein.
h. Failure to indemnify the City as required herein.
i. Falsifying records or reports to a Governmental Body.
j. Failure to comply with Applicable Law.
k. Failure to remedy complaints as described in Section 17.
1. Causing recyclable material delivered to the Contractor by the City or City
Collector(s) and which may have been economically separated by Contractor to
be delivered to any other facility as solid waste as determined by Contractor with
the concurrence of the Director.
B. City shall, as soon as practical, notify Contractor of any failure on the Contractor's part to
comply with the terms of this Contract. After receipt of notice from the City, Contractor
shall acknowledge receipt of such notice within four(4) hours and shall promptly provide
the City with notice of what corrective action has been or shall be taken by the
Contractor. Contractor shall follow up with written notice describing the same along with
any additional relevant information, within forty-eight (48) hours. Failure to provide
acknowledgement of receipt of notice, or plan of corrective action, within the above
mentioned time period(s) shall constitute an event of default by the Contractor.
16.
EVENTS OF DEFAULT BY CITY
A. The following shall constitute events of default on the part of the City, except to the
extent excused by the occurrence of an Uncontrollable Circumstance or Contractor's fault
unless otherwise specified herein:
1. A failure by City to timely perform any Material Obligation under the terms of this
Contract, and the continuance of such failure for a period of fifteen (15) Days after
written notice thereof has been provided by the Contractor specifying such failure and
FINAL CONTRACT FOR TYPE 11 WASTEAND YARD WASTE PROCESSING WITH IESI _
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requesting that such condition be remedied if City does not either cure the default or
initiate and diligently pursue reasonable actions to cure such non-performance
notwithstanding Section 33; or
2. City being insolvent or bankrupt or ceasing to pay its debts as they mature or making
an arrangement with or for the benefit of its creditors or consenting to or acquiescing
in the appointment of a receiver, trustee or liquidator for a substantial part of its
property; or a bankruptcy, winding up, reorganization, insolvency, arrangement or
similar proceeding instituted by City under the laws of any jurisdiction or against City,
if City does not take appropriate action to dismiss said proceedings, which
proceedings have not been dismissed within ninety(90) Days of the institution of such
proceedings; or any action or answer by City, approving of, consenting to, or
acquiescing in, any such proceedings; or the levy of any distress, execution or
attachment upon the property of City,which shall substantially interfere with its
performance hereunder.
B. Contractor shall, as soon as practical, notify City of any failure on the City's part to
comply with the terms of this Contract. After receipt of notice from the Contractor, City
shall acknowledge receipt of such notice within four (4) hours and shall promptly provide
the Contractor with notice of what corrective action has been or shall be taken by the
City, within a reasonable time, in light of the circumstances. City shall follow up with
written notice describing the same along with any additional relevant information, within
forty-eight (48) hours. Failure to provide acknowledgement of receipt of notice, or plan
of corrective action, within the above mentioned time period(s) shall constitute an event
of default by the City.
17.
COMPLAINTS
A. The City shall supply on a daily basis to the Contractor an electronic work order outlining
all complaints on Days in which complaints are received by the City. The work order will
indicate the date and hour of inquiry or complaint receipt, complaintant's name, address
and phone number, the nature of the complaint, and the City's contact by whom
complaint or inquiry was received.
B. 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;
2. Name of the person responsible to answer the complaint.
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18.
NON-PERFORMANCE AND LIQUIDATED DAMAGES
A. 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 amounts listed below as
liquidated damages. The Director shall provide twenty-four (24) hour notice to the
Contractor of Contractor's action or inaction to allow Contractor to remedy the action or
inaction. However, the Director may assess the liquidated damage(s) for the twenty-four
(24) hour notice period if the action or action is not remedied within such time.
1. Failure to submit accurate reports including monthly, quarterly' annual, MWBE,
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;
2. Failure to maintain a staffed office during specified hours: $100.00 per
occurrence;
3. Failure to notify 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 within thirty (30) Days: $100.00 per occurrence;
4. Wrongfully rejecting Acceptable Waste for Processing or Disposal as described
herein: $250.00 per load; and
5. Failure to maintain availability of the Processing area at the Landfill and/or
Landfill to receive and Process and/or Dispose City's Acceptable Waste : $3,500
per occurrence.
B. Chronic failure to remedy any of the above listed actions or inaction shall be grounds for
termination of this Contract. Chronic failure shall mean three or more instances.
19.
UNCONTROLLABLE CIRCUMSTANCES
A. Uncontrollable Circumstance affecting Contractor's Obligations.
Contractor shall be excused for the failure to perform its obligations under the terms of
this Contract if such failure results from the occurrence of an Uncontrollable
Circumstance. Contractor shall seek diligently and in good faith to perform its
obligations, notwithstanding the occurrence of an Uncontrollable Circumstance, to
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mitigate the adverse effects of an Uncontrollable Circumstance, and to overcome an
Uncontrollable Circumstance as soon as practicable.
B. Uncontrollable Circumstance affecting City's Obligations.
City shall be excused for the failure to perform its obligations under the terms of this
Contract if such failure results from the occurrence of an Uncontrollable Circumstance.
City shall seek diligently and in good faith to perform its obligations, notwithstanding the
occurrence of an Uncontrollable Circumstance, to mitigate the adverse effects of an
Uncontrollable Circumstance, and to overcome an Uncontrollable Circumstance as soon
as practicable.
C. Notice of an Uncontrollable Circumstance.
A party making a claim of an Uncontrollable Circumstance shall provide written notice
of the Uncontrollable Circumstance to the other party within twenty-four (24) hours of
such claiming party's knowledge of such Uncontrollable Circumstance. Such claiming
party'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, and a separate notice shall provide such information not
provided in the first notice):
1. a description of the Uncontrollable Circumstance that has occurred; and
2. the effect, if any, of such Uncontrollable Circumstance on such claiming party's
performance or other obligations under this Contract.
D. Reinstatement of Ability to Perform.
After the resolution of an Uncontrollable Circumstance and the restoration of the
processing and disposal services as described herein, the Contractor shall provide written
notice of a reinstatement of the above mentioned services. The City shall reinstate such
services (or shall cause reinstatement of) unless this Contract shall have been previously
terminated as provided herein.
E. Liability for Uncontrollable Circumstance.
Neither Contractor nor the City shall be liable for the failure to perform their duties nor
for any resultant damage, or loss, if such failure is caused by Uncontrollable
Circumstances. If such Uncontrollable Circumstance affecting Contractor's obligations
persists for more than thirty (30) Days, or if after its [their] cessation, the Contractor is
unable to render full or substantial performance for a period of thirty (30) Days, the City
may terminate this Contract by giving Contractor ten (10) Days advance written notice.
20.
TERMINATION
Upon the occurrence of an event of default by Contractor or for Contractor's failure to
perform a Material Obligation of this Contract, and after the expiration of the period of time
provided herein to cure such default, with no cure being accomplished by Contractor, all work
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i
and services of this Contract shall be suspended immediately on written order of the Director or
the City Manager, or the Contract may be declared cancelled by the City Council.
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
cancelled, 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.
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.
It is understood that in no circumstance shall the City take control over or operate
Contractor's Landfill.
21.
INDEPENDENT CONTRACTOR
It is expressly understood and agreed that Contractor shall perform all work and services
described herein as an independent contractor and not as an officer, agent, servant or employee
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of the City; that Contractor shall have exclusive control of and the exclusive right to control the
details of the services and work performed hereunder, and all persons performing the same; and
shall be solely responsible for the acts and omissions of its officers, agents, employees,
contractors and subcontractors; that the doctrine of respondeat superior shall not apply as
between City and Contractor, its officers, agents, employees, contractors and subcontractors; and
that nothing herein shall be construed as creating a partnership or joint enterprise between City
and Contractor. No person performing any of the work and services described hereunder shall be
considered an officer, agent, servant or employee of the City.
22.
INDEMNIFICATION
A. CONTRACTOR SHALL RELEASE, INDEMNIFY, REIMBURSE, DEFEND,
AND HOLD HARMLESS, CITY, ITS OFFICERS, AGENTS, SERVANTS AND
EMPLOYEES, FROM AND AGAINST ANY AND ALL CLAIMS OR SUITS FOR
PROPERTY DAMAGE OR LOSS AND/OR PERSONAL INJURY, INCLUDING
DEATH, TO ANY AND ALL PERSONS, ARISING OUT OF THE WORK AND
SERVICES TO BE PERFORMED HEREUNDER BY CONTRACTOR, ITS
OFFICERS, AGENTS, EMPLOYEES, CONTRACTORS, SUBCONTRACTORS,
LICENSEES, OR INVITEES, INCLUDING DAMAGES, LOSS, INJURY OR
DEATH, TO THE EXTENT CAUSED BY ANY ERROR, OMISSION, DEFECT,
OR DEFICIENCY OF CONTRACTOR IN ACCORDANCE WITH THIS
CONTRACT EXCEPT TO THE EXTENT ANY SUCH DAMAGES, LOSS,
INJURY OR DEATH IS CAUSED BY ANY NEGLIGENT ERROR, OMISSION,
DEFECT OR DEFICIENCY OF THE CITY.
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
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conducting all negotiations of any description, and paying and discharging, when
and as the same become due, any and all judgments, penalties or other sums due
against such indemnified persons.
D. Upon learning of a claim, lawsuit, or other liability which Contractor is required
hereunder to indemnify, the City shall provide Contractor with reasonably timely
notice of same.
E. The obligations of the Contractor under this section shall survive the expiration of
this Contract and the discharge of all other obligations owed by the parties to each
other hereunder.
F. In all of its contracts with subcontractors for the performance of any work under
this Contract, Contractor shall require the subcontractors to indemnify the City in a
manner consistent with this section.
G. In the event that a written claim for damages against Contractor or any of its
subcontractors remains unsettled at the time all work on the assigned task has been
completed to the satisfaction of the City Manager, as evidenced by a final inspection,
final payment to Contractor shall not be recommended by the City Manager for a
period of ninety (90) Days after the date of such final inspection, unless the
Contractor submits written evidence satisfactory to the City Manager that the claim
has been settled and a release has been obtained from the claimant involved, or
offers reasonable security for payment of such claim.
1. If the claim concerned remains unsettled at the expiration of the said thirty
(30) Day period, the Contractor may be deemed by the City Manager to be
entitled to a semi-final payment for work completed, such semi-final
payment to be in an amount equal to the total dollar amount then due less
the dollar value of any written claims pending against the Contractor arising
out of the performance of such work.
2. The City Manager shall not recommend final payment to Contractor if a
claim for damages is outstanding for a period of six (6) months following the
date of the acceptance of the work performed unless the Contractor submits
evidence in writing, satisfactory to the City Manager, that:
a. The claim has been settled and a release has been obtained from the
claimant involved; or
b. Good faith efforts have been made to settle such outstanding claims,
and such good faith efforts have failed.
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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-month period,
the City Manager may recommend that final payment to Contractor be
made. At the expiration of the six (6) month period, the City Manager may
recommend that final payment be made if all other work has been performed
and all other obligations of the Contractor have been met to the satisfaction
of the City Manager.
23.
INSURANCE
Contractor shall not commence work under this Contract until it has obtained all the
insurance required under the Contract, and such insurance has been approved by the City.
Contractor shall keep the required insurance in force throughout the term of this Contract.
A. WORKERS' COMPENSATION INSURANCE: Contractor shall maintain, during the
term of this Contract, Workers' Compensation Insurance at statutory limits on all of
its employees to be engaged in work under this Contract, and for all subcontractors.
Employer's Liability (EL) Insurance shall also be maintained, at minimum limits as
follows: $500,000 each accident/$500,000 disease each employee/$500,000 disease
policy limit.
B. GENERAL LIABILITY INSURANCE (CGL): Contractor shall procure and shall
maintain during the term of this Contract a Commercial General Liability Insurance
Policy at a minimum limits as Two Million Dollars ($2,000,000) per occurrence with
an aggregate of Five Million Dollars ($5,000,000) combined single limit, including
property damage and personal injury coverage, during effective dates of the Contract,
or any renewal thereof, in order to protect and save the City harmless against any and
all claims for damage to person, persons, or property arising from the processing and
disposal of Type IV Waste, C&D Waste, Large Brush and Bulky Waste and Yard
Waste. Contractor shall also provide excess Commercial General Liability in the
amount of Ten Million Dollars ($10,000,000).
C. AUTOMOBILE INSURANCE: Contractor shall procure and maintain during the
term of this Contract Comprehensive Automobile Liability Insurance covering all
vehicles involved with Contractor's operations under this Contract. The minimum
limits of liability coverage shall be in the amount of Two Million Dollars
($2,000,000) per occurrence combined single limit, during the effective dates of
Contract and any renewal period. The named insured and employees of Contractor
shall be covered under this policy. The City of Fort Worth shall be named an
additional insured on Endorsement TE 9901 or equivalent, as its interests may appear.
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CRL03.071.03
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if
D. ENVIRONMENTAL IMPAIRMENT LIABILITY (EIL) AND/OR POLLUTION
LIABILITY—Ten Million Dollars ($10,000,000)per occurrence. EIL coverage(s) must
be included in policies listed in items above; or, such insurance shall be provided under
separate policies. Liability for damage occurring while loading, unloading and
transporting materials under the Contract shall be included under the Automobile
Liability insurance or other policy(s).
NOTE: BETWEEN A AND D ABOVE,ANY POLLUTION EXPOSURE,
INCLUDING ENVIRONMENTAL IMPAIRMENT LIABILITY,ASSOCIATED
WITH THE SERVICES AND OPERATIONS PERFORMED UNDER THIS
CONTRACT SHALL BE COVERED;IN ADDITION TO SUDDEN AND
ACCIDENTAL CONTAMINATION OR POLLUTION LIABILITY
COVERAGE, THERE MUST BE NON-SUDDEN AND NON-ACCIDENTAL
CONTAMINATION LIABILITY COVERAGE FOR GRADUAL EMISSIONS
AND CLEAN-UP COSTS.
The following shall pertain to all applicable policies of insurance (A. through D.) listed above:
1. Additional Insured Clause: "The City of Fort Worth, its officers, agents,
employees, and representatives are added as additional insureds as respects
operations and activities of, or on behalf of the named insured, performed
under contract with the City of Fort Worth." An equivalent clause may be
acceptable in the discretion of the City.
2. Subcontractors shall be covered under the Contractor's insurance policies or
they shall provide their own insurance coverage; and, in the latter case,
documentation of coverage shall be submitted to the Contractor prior to the
commencement of work and the Contractor shall deliver such to the City.
3. Prior to commencing work under the Contract, the Contractor shall deliver
to the City insurance certificate(s) documenting the insurance required and
the terms and clauses required.
4. Each insurance policy required by this Contract shall contain the following
clauses: "This insurance shall not be canceled, limited in scope or coverage,
or non-renewed until after thirty (30) Days prior written notice has been
given to the Director of Environmental Management, City of Fort Worth,
1000 Throckmorton, Fort Worth, Texas 76102." Note: Written notice can be
by Contractor or insurance company.
5. The insurers for all policies must be approved to do business in the State of
Texas and be currently rated in terms of financial strength and solvency to
the satisfaction of the Risk Manager for the City.
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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.
24.
PERFORMANCE BOND
Contractor agrees that upon the execution of this Contract and before beginning work, it
shall make, execute and deliver to the City a good and sufficient Performance Bond in a form
furnished by the City, to secure the faithful performance of the terms and conditions herein. In
the first Contract Year such Performance Bond shall be in the amount of One Million Dollars
($1,000,000). Within the first Contract Year, the Performance Bond shall be reviewed after the
first six (6) months and such amount of the Performance Bond may be amended, taking into
account the actual costs of services within those six (6) months upon the determination of the
City. Each year thereafter, the Performance Bond shall be renewed throughout the term of the
Contract and any renewal periods in such amounts as the City shall require, but not less than the
estimated cost of services for the following twelve (12) months during which the services are to
be performed taking into consideration Contractor's adjusted prices then in effect and taking into
consideration the actual cost of services during the prior year. 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.
All performance security, whether Performance Bond or Letter of Credit, must be in form
and content acceptable to the City Attorney and annual documentation is required in the form of
written certification from the surety company or banking institution that the said Performance
Bond or Letter of Credit remains in effect each year of the Contract. In the event that the
Performance Bond or Letter of Credit will cease to be in effect, the surety company or banking
institution and Contractor shall notify the City at least thirty (30) Days in advance of lapse, and
Contractor shall make, execute and deliver to the City a good and sufficient Performance Bond
or replacement by Letter of Credit as described above and in the amount named above no less
than ten (10) days in advance of lapse of coverage.
25.
UNACCEPTABLE WASTE
Contractor shall NOT knowingly accept, nor be required to accept for Processing and/or
Disposal, Unacceptable Waste. Contractor shall notify City's Collector(s) and the Director of the
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suspected Unacceptable Waste immediately and provide the Director with a description of such
waste. Contractor reserves the right to reject or revoke acceptance of any Unacceptable Waste in
accordance with Applicable Law.
26.
CUMULATIVE REMEDIES
The rights and remedies granted in this Contract are cumulative, and the exercise of such
rights shall be without prejudice to the enforcement of any other right or remedy authorized by
law or this Contract. No waiver of any violation shall be deemed or construed by a court of law
or an arbitrator to constitute a waiver of any other violation or other breach of any of the terms,
provisions, and covenants contained herein.
27.
REMEDIES FOR BREACH
The parties agree that, except as otherwise provided in Section 20 with respect to
termination, in the event that either party breaches this Contract, the other party may exercise
any legal rights it has under this Contract under the security instruments and under Applicable
Law to recover damages or to secure specific performance, and that such rights to recover
damages and to secure specific performance shall ordinarily constitute adequate remedies for any
such breach. Neither party shall have the right to terminate this Contract for cause except upon
the occurrence of an event of default, unless otherwise specified herein.
28.
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 Contractor.
No waiver of any breach shall affect or alter this Contract, but each and every term, covenant,
agreement, provision, condition and limitation of this Contract shall continue in full force and
effect with respect to any other then existing or subsequent breach thereof. This Contract may be
terminated (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.
FINAL CONTRACT FOR TYPE VI WASTEAND YARD WASTE PROCESSING WITH IESI i
CRL03.0?.03
26
29.
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.
30.
RIGHT TO AUDIT
Until the expiration of three (3) years after the final payment under this Contract, the City
shall have access to and the right to examine any directly pertinent books, documents, papers and
records of the Contractor and Guarantor involving transactions relating to this Contract. Contractor
further agrees to include in all its subcontracts hereunder a provision to the effect that the
subcontractor agrees that the City shall, until the expiration of three (3) years after final payment
under the subcontract, have access to papers and records of such subcontractor involving
transactions relating to the subcontract. The term "subcontract" as used herein includes purchase
orders.
31.
RIGHT TO ENTER
Contractor shall permit the City and its authorized representatives to enter the Landfill
Processing and/or Disposal Facility at all reasonable times upon request to review the operation
to assure compliance in accordance with this Contract and other reasonable purposes related to
this Contract. Nothing herein shall create or imply any duty upon the City to make any repairs or
do any work with respect to the Landfill, Processing and/or Disposal Facility and any
performance thereof by the City shall not constitute a waiver of Contractor's default in failing to
perform the same.
32.
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 Processing, handling, and Disposal of all
waste received at Contractor's Landfill and the storage, transport and handling of processed
materials as described herein, 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 o.r private^
FINAL CONTRACT FOR TYPE VI WASTEAND YARD WASTE PROCESS/NC WITH/ES/
CRL03.07.03
27
33.
GOVERNMENTAL POWERS AND IMMUNITIES
It is understood and agreed that, by execution of this Contract, the City does not waive or
surrender any of its governmental powers or immunities. Contractor acknowledges that the City
is a Governmental Body and as such has certain rights, powers and duties that may affect the
Contractor's rights or obligations under the Contract. The Contractor agrees that no action by the
City acting in its governmental capacity shall be construed as a breach or an event of default by
the City under this Contract, nor shall any such action excuse the Contractor from performance
of its obligations under this Contract; provided, however, if such action constitutes an
Uncontrollable Circumstance, the Contractor may assert any rights it may have under this
Contract as is permitted for any other Uncontrollable Circumstance.
34.
COMPLIANCE WITH LAWS
Contractor, its officers, agents, employees, contractors and subcontractors, shall abide by
and comply with all Applicable Law, federal, state and local, including the City's charter and all
ordinances, rules and regulations of the City and shall maintain all permits and approvals
required for the services to be provided to 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.
35.
LICENSES, PERMITS AND FEES
Contractor agrees to obtain and pay for and maintain all licenses, permits, certificates,
inspections and all other fees required by law or otherwise necessary to perform the services
prescribed hereunder. Contractor shall also pay, at its own expense, all fees necessary to the
Processing, recycling, marketing and Disposal of Type IV Waste, Large Brush and Large Bulky
Waste, Yard Waste, C &D Waste and White Goods.
36.
DISCRIMINATION PROHIBITED
Contractor, in the execution, performance or attempted performance of this Contract shall
not discriminate against any person or persons on any unlawful basis. This Contract is made and
entered into with reference specifically to Article III of Chapter 17 of the Code of the City of
Fort Worth (1986), as amended, an ordinance prohibiting discrimination, and Contractor hereby
covenants and agrees that it has fully complied with all provisions of same and that no employee
or employee-applicant has been discriminated against or will be discriminated against by
FINAL CONTRACT FOR TYPE V/WASTEAND YARD WASTE PROCESSING WITH/ES/ j
CRL03.07.03 li
28
iII
Contractor in violation of said ordinance. Contractor warrants that it is an equal opportunity
employer.
In addition, Contractor, in the execution, performance or attempted performance of this
Contract shall not discriminate on any prohibited basis and shall fully comply with all other
applicable federal, state and local laws concerning discrimination.
37.
NON ASSIGNMENT
Contractor shall not assign, transfer, sublet, convey, or otherwise dispose of the Contract
or the rights, title, or interest in or to the same or any part thereof without the previous consent of
the City Council which consent will not be unreasonably withheld if the assignment is made to
an Affiliate, with concurrence of the surety. In the event Contractor does, without such previous
consent, assign, transfer, sublet, convey or otherwise dispose of the Contract or of the right, title
or interest therein or any part thereof, City may, at its discretion, terminate the Contract in
accordance with Section 20 hereof. Consent will not be withheld unreasonably when an
assignment is made to an Affiliate, provided that Contractor, Guarantor and surety shall not be
released from their respective obligations hereunder.
38.
SUCCESSORS AND ASSIGNS
All of the terms, covenants, and Contracts contained herein shall be binding upon and
shall inure to the benefit of successors and assigns of the respective parties hereto.
39.
NOTICES
Any notices, 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
(817) 871-5153
If to the Contractor: Bob Kneis
IESI District Manager
3330 North Beach Street
FINAL CONTRACT FOR TYPE 67 WASTEAND YARD WASTE PROCESSING WITH IESI
CRL 03.0?.03
29
Haltom City, TX 76111
(817) 222-2221
and
Jeff Peckham
IESI Regional Vice President
6125 Airport Freeway, Suite 202
Haltom City,TX 76117
40.
VENUE
Should any action, whether real or asserted, at law or in equity, arise out of the terms and
conditions of this Contract, venue for said action shall be in Tarrant County, Texas.
41.
GUARANTY BY PARENT COMPANY OF CONTRACTOR
(a) It is hereby agreed and understood by Contractor and City that IESI Corporation is the
"parent company" of Contractor, or is otherwise serving as Guarantor for Contractor.
(b) Contractor agrees that, simultaneously with the entering into of this Contract by
Contractor and City, its "parent company" or Guarantor shall execute the "Guaranty" set forth in
Attachment E of this Contract,. The Contractor agrees that the person or entity executing the
Guaranty on behalf of its "parent company" or Guarantor shall be a person or entity authorized to
bind legally the parent company or Guarantor to such a Guaranty.
(c) It is expressly agreed and understood by Contractor and City that the Guaranty to be
provided and executed by Contractor's "parent company," or Guarantor as required by this
Article 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.
42.
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.
FINAL CONTRACT FOR TYPE V/WASTEAND YARD WASTE PROCESSING WITH/ES/ -
CRL03.07.03
30 j
f
43.
NON-APPROPRIATION
In the event that no funds or insufficient funds are collected, appropriated and budgeted
or funds are otherwise unavailable for payment of amounts due hereunder by City to Contractor,
City shall notify Contractor and this Contract shall terminate on the last day of the fiscal period
for which appropriations were made without penalty or expense to City of any kind whatsoever,
except as to the payment of amounts due and payable for which appropriations have been made
for said fiscal period. City covenants that it will provide Contractor as much notice as possible of
this contingency. Provided, however, that this Section 43 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.
44.
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 Law 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 authority, 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 TYPE V/WASTEAND YARD WASTE PROCESSING WITH/ES/ _-
CRL 03.0 7.03
31
I
other contract or instrument entered into by the party in connection with the transactions
contemplated hereby.
IN WITN$S WHEREOF, The parties hereto have executed this Contract on this TL*—�
day of ' , A.D., 2003, in Fort Worth, Tarrant County, Texas.
CITY OF FORT WORTH IESI TX Corporation
BY:
Libby Watson
Assistant City Manag r P r e s i d e n ic:eP:r:e id ent
Date Signed: � S d 3 Date Signed: -3 �03
A EST: WITNESS:
Gloria Pears
City Secret ry j
Contract Author' zation
Lit t 6 � r�
APPROVWXS TO FORM CORPORATE SEAL:
AND LEGALITY:
NW&) il. ADW&
_
Assistant ity Attorney
FINAL CONTRACT FOR TYPE VI WASTEAND YARD WASTE PROCESSING WITH IESI
CRL 03.0 7.03 ----
32
f
Attachment A
Cost Adjustment Method
The Fee for Processing of Type IV Waste, including C&D and Bulky Waste, and the Fee
for Disposal of Non-Processible Type IV Waste C&D and Large Bulky Items collected
from the City 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
and the Disposal Fee will be adjusted upward or downward to reflect changes in the
cost of operations by the Cost Adjustment Method using indices applicable to
Processing and Disposal, respectively, and the methodology as set forth below, on the
anniversary date of the Contract (the "Cost Adjustment Date"), except that the first
anniversary date shall be October 1, 2003, and the first Cost Adjustment shall only
represent changes in the indices applied herein for the previous six months. The price
for the disposal of residuals is included in the Processing Fee.
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 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 and the Disposal Fee which 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 and the Disposal 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 and the Disposal
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 and the
Disposal 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 Fees for Processing and Disposal 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 - Processing
Industrial Handling Equipment (5%)
Contractor has designated 5% 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".
Employment Cost Index (75%)
Contractor has designated 75% of Processing Fee to be adjusted by the ECI, a BLS
index separate from PPI. ECI data for "South" under the "Region (3)" category shall be
used for the adjustment calculation.
No. 2 Diesel Fuel (20%)
Contractor has designated 20% 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
under the "05" Commodity Code, "Fuels and Related Products and Power', "05730302
No. 2 diesel fuel".
Example
Following is an example of the application of these indices with Contractor's
percentages for cost adjustment. In the example below, an annual factor of -4.028%
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
Industrial Handling Equipment 5% 137.4 137.2 -0.2 -0.15% -0.007%
Employment Cost Index 75% 150.2 146.3 -3.9 -2.60% -1.9470/6
Diesel Fuel 1 20% 116.7 1 104.6 1 -12.1 -10.37% -2.074%
Totals: 100% 1 1 -4.028%
Indices and Contractor's Percentage of Each Index to be Applied in
the Cost Adjustment - Disposal
Construction Machinery and Equipment (10%)
Contractor has designated 10% of Disposal Fee to be adjusted by the "Construction
Machinery and Equipment" component of the PPI, which is found under "Capital
Equipment," commodity code 11-2".
Employment Cost Index (80%)
Contractor has designated 80% of Disposal Fee to be adjusted by the ECI, a BLS index
separate from PPI. ECI data for "South" under the "Region (3)" category shall be used
for the adjustment calculation.
No. 2 Diesel Fuel (10%)
Contractor has designated 10% of Disposal Fee to be adjusted by the No. 2 Diesel Fuel
component of "Fuel and Related Products and Power' in the PPI, which is found under
the "05" Commodity Code, "Fuels and Related Products and Power", "05730302 No. 2
diesel fuel".
Example
Following is an example of the application of these indices with Contractor's
percentages for cost adjustment. In the example below, an annual factor of -3.107%
would be applied to Contractor's base Disposal Fee to determine the Disposal Fee for
the next Contract Year.
Contractor's Disposal Fee Applicable Previous Current Index Index %Applied
Adjustment Indices Index Index Index Value Percent to Cost
Percentage Value Value Change Change Adjustment
Construction Machinery& Equipment 10% 149.2 149.3 0.1 0.07% 0.007%
Employment Cost Index 80% 150.2 146.3 -3.9 -2.60% -2.0771/6
Diesel Fuel 10% 116.7 104.6 -12.1 1 -10.37% -1.037%
Totals: 100% 1 -3.107%
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FINAL CONTOUR MAP
FORT WORTH C & D LANDFILL EXPANSION
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03/10/2003 11:52 8172229688 IESI PAGE 03/03
A ch r"&*
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IESI TX CORPORATION 2/15/2003 018223
FORT WORTH C&D LANDFILL
41.44 Dick Price Rd REFOAEKCENO- ';;:INVOICE
Fort Worth, TX 76140
Phone: 817-53.6-7777 0000168949
Fax: 817-478-0091 Mb
�C�1� IC
PAYMENT IS DUE UPON RECEIPT OF INVOICE
LATE PAYMENT MAY RESULT IN AN INTERRUPTION OF SERVICE,
L ANY PAYMENT NOT RECEIVED WITHIN 30 DAYS OF THE INVOICE DATE"LL
BE CONSIDERED PAST DUE.PAST DUE INVOICES SHALL BE SUBJECT TO A
T LATE CHARGE OF 1 1125 FOR EACH MONTH OR PART THEREOF THAT THE
INVOICE IS PAST DUE.
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Attachment E
GUARANTY AGREEMENT
THIS GUARANTY AGREEMENJ is made and dated as of 3�xo
2003, between (Zt. o4f417e,,V company organized and existing
under the laws of the State of (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 :7:E5:'Tx a
corporation organized and existing under the laws of the State of d—°
and duly authorized to do business in the State of Texas (the "Company"), have entered into a
Contract for Type IV Waste, C&D Waste, and Large Brush and Large Bulky Waste Disposal and
C&D, White Goods, and Yard Waste Processing to the City, dated _ J20 , 2003, as
renewed and amended from time to time (the "Contract") whereby the Company has agreed to
provide the above mentioned services, all as more particularly described therein. Company in
this Agreement shall mean Contractor as defined in the Contract.
The Company is subsidiary of the Guarantor.
The City will enter into the Contract only if the Guarantor guarantees the
performance by the Company of all of the Company's responsibilities and obligations under the
Contract as set forth in this Guaranty Agreement (the "Guaranty").
In order to induce the execution and delivery of the Contract by the City and in
consideration thereof, the Guarantor agrees as follows:
ARTICLE I
DEFINITIONS AND INTERPRETATION
SECTION 1.1. DEFINITIONS. For the purposes of this Guaranty, the term
"Obligations" means the amounts payable by, and the covenants and agreements of, the
Company pursuant to the terms of the Contract. Any other capitalized word or term used but not
defined herein is used as defined in the Contract.
SECTION 1.2. INTERPRETATION. In this Guaranty, unless the context
otherwise requires:
(A) References Hereto. The terms "hereby", "hereof', "herein", "hereunder"
and any similar terms refer to this Guaranty, and the term "hereafter" means after, and the term
"heretofore" means before, the date of execution and delivery of this Guaranty.
(B) Gender and Plurality. Words of the masculine gender mean and include
correlative words of the feminine and neuter genders and words importing the singular number
mean and include the plural number and vice versa.
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(C) Persons. Words importing persons include firms, companies,
associations, general partnerships, limited partnerships, trusts, business trusts, corporations
and other legal entities, including public bodies, as well as individuals.
(D) Headings. The table of contents and any headings preceding the text of
the Articles, Sections and subsections of this Guaranty shall be solely for convenience of
reference and shall not constitute a part of this Guaranty, nor shall they affect its meaning,
construction or effect.
(E) Entire Agreement; Authority. This Guaranty constitutes the entire
agreement between the parties hereto with respect to the transactions contemplated by this
Guaranty. Nothing in this Guaranty is intended to confer on any person other than the
Guarantor, the City and their permitted successors and assigns hereunder any rights or
remedies under or by reason of this Guaranty.
(F) Counterparts. This Guaranty may be executed in any number of original
counterparts. All such counterparts shall constitute but one and the same Guaranty.
(G) Applicable Law. This Guaranty shall be governed by and construed in
accordance with the applicable laws of the State of Texas.
(H) Severability. If any clause, provision, subsection, Section or Article of this
Guaranty shall be ruled invalid by any court of competent jurisdiction, the invalidity of any such
clause, provision, subsection, Section or Article shall not affect any of the remaining provisions
hereof, and this Guaranty shall be construed and enforced as if such invalid portion did not exist
provided that such construction and enforcement shall not increase the Guarantor's liability
beyond that expressly set forth herein.
(1) Approvals. All approvals, consents and acceptances required to be given
or made by any party hereto shall be at the sole discretion of the party whose approval, consent
or acceptance is required.
(J) Payments. All payments required to be made by the Guarantor
hereunder shall be made in lawful money of the United States of America.
ARTICLE II
REPRESENTATIONS AND WARRANTIES OF THE GUARANTOR
SECTION 11.1. REPRESENTATIONS AND WARRANTIES OF THE
GUARANTOR. The Guarantor hereby represents and warrants that:
(A) Existence and Powers. The Guarantor is a duly registered company
organized and validly existing under the laws of Delaware, with full legal right, power and
authority to enter into and perform its obligations under this Guaranty.
(B) Due Authorization and Binding Obligation. The Guarantor has duly
authorized the execution and delivery of this Guaranty, and this Guaranty has been duly
executed and delivered by the Guarantor and constitutes the legal, valid and binding obligation
of the Guarantor, enforceable against the Guarantor in accordance with its terms except insofar
as such enforcement may be affected by bankruptcy, insolvency, moratorium or by general
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equity principles of reorganization and other similar laws affecting creditors' rights generally and
general principles of equity.
(C) No Conflict. Neither the execution or delivery by the Guarantor of this
Guaranty nor the performance by the Guarantor of its obligations hereunder (1) to the
Guarantor's knowledge conflicts with, violates or results in a breach of any law or governmental
regulation applicable to the Guarantor, (2) conflicts with, violates or results in a material breach
of any term or condition of the Guarantor's corporate charter or by-laws or any judgment,
decree, agreement or instrument to which the Guarantor is a party or by which the Guarantor or
any of its properties or assets are bound, or constitutes a default under any such judgment,
decree, agreement or instrument, or (3) to the Guarantor's knowledge will result in the creation
or imposition of any material encumbrance of any nature whatsoever upon any of the properties
or assets of the Guarantor except as permitted hereby.
(D) No Governmental Approval Required. No approval, authorization, order
or consent of, or declaration, registration or filing with, any Governmental Body is required of the
Guarantor for the valid execution and delivery by the Guarantor of this Guaranty, except such as
shall have been duly obtained or made.
(E) No Litigation. Except as disclosed in the Guarantor's filings with the
Securities and Exchange Commission pursuant to the requirements of the Securities Exchange
Act of 1934, as amended, there is no action, suit or other proceeding, at law or in equity, before
or by any court or Governmental Body, pending or, to the Guarantor's knowledge, threatened
against the Guarantor which has a likelihood of an unfavorable decision, ruling or finding that
would materially and adversely affect the validity or enforceability of this Guaranty.
(F) No Legal Prohibition. The Guarantor has no knowledge of any Applicable
Law in effect on the date as of which this representation is being made which would prohibit the
performance by the Guarantor of this Guaranty and the transactions contemplated by this
Guaranty.
(G) Consent to Agreements. The Guarantor is fully aware of the terms and
conditions of the Contract.
(H) Consideration. This Guaranty is made in furtherance of the purposes for
which the Guarantor has been organized, and the assumption by the Guarantor of its
obligations hereunder will result in a material benefit to the Guarantor.
ARTICLE III
GUARANTY COVENANTS
SECTION 111.1. GUARANTY TO CITY. The Guarantor hereby absolutely,
presently, irrevocably and unconditionally guarantees to the City for the benefit of the City
(1) the full and prompt payment when due of each and all of the payments required to be
credited or made by the Company under the Contract (including all amendments and
supplements thereto) to, or for the account of, City, when the same shall become due and
payable pursuant to this Guaranty, and (2) the full and prompt performance and observance of
each and all of the Obligations. Notwithstanding the unconditional nature of the Guarantor's
obligations as set forth herein, the Guarantor shall have the right to assert the defenses
provided in Section 3.4 hereof against claims made under this Guaranty.
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SECTION 111.2. RIGHT OF CITY TO PROCEED AGAINST GUARANTOR.
This Guaranty shall constitute a guaranty of payment and of performance and not of collection,
and the Guarantor specifically agrees that in the event of a failure by the Company to pay or
perform any Obligation guaranteed hereunder subject to the applicable notice and cure
provisions as they apply to the Contractor, the City shall have the right to proceed first and
directly against the Guarantor under this Guaranty and without proceeding against the Company
or exhausting any other remedies against the Company which the City may have. Without
limiting the foregoing, the Guarantor agrees that it shall not be necessary, and that the
Guarantor shall not be entitled to require, as a condition of enforcing the liability of the
Guarantor hereunder, that the City (1) file suit or proceed to obtain a personal judgment against
the Company or any other person that may be liable for the Obligations or any part of the
Obligations, (2) make any other effort to obtain payment or performance of the Obligations from
the Company other than providing the Company with any notice of such payment or
performance as may be required by the terms of the Contract or required to be given to the
Company under Applicable Law, (3) foreclose against or seek to realize upon any security for
the Obligations, or (4) exercise any other right or remedy to which the City is or may be entitled
in connection with the Obligations or any security therefor or any other guarantee thereof,
except to the extent that any such exercise of such other right or remedy may be a condition to
the Obligations of the Company or to the enforcement of remedies under the Contract. Upon
any unexcused failure by the Company in the payment or performance of any Obligation and
the giving of such notice or demand, if any, to the Company and Guarantor as may be required
in connection with such Obligation and this Guaranty, the liability of the Guarantor shall be
effective and shall immediately be paid or performed. Notwithstanding the City's right to
proceed directly against the Guarantor, the City (or any successor) shall not be entitled to more
than a single full performance of the obligations in regard to any breach or non-performance
thereof.
SECTION 111.3. GUARANTY ABSOLUTE AND UNCONDITIONAL. The
obligations of the Guarantor hereunder are absolute, present, irrevocable and unconditional and
shall remain in full force and effect until the Company shall have fully discharged the Obligations
in accordance with their respective terms, and except as provided in Section 3.4 hereof, shall
not be subject to any counterclaim, set-off, deduction or defense (other than full and strict
compliance with, or release, discharge or satisfaction of, such Obligations) based on any claim
that the Guarantor may have against the Company, the City or any other person. Without
limiting the foregoing, the obligations of the Guarantor hereunder shall not be released,
discharged or in any way modified by reason of any of the following (whether with or without
notice to, knowledge by or further consent of the Guarantor):
(1) the extension or renewal of this Guaranty or the Contract up to the
specified Terms of each agreement;
(2) any exercise or failure, omission or delay by the City in the exercise of
any right, power or remedy conferred on the City with respect to this Guaranty or the
Contract except to the extent such failure, omission or delay gives rise to an applicable
statute of limitations defense with respect to a specific claim;
(3) any permitted transfer or assignment of rights or obligations under the
Contract by any party thereto (other than a permitted assignment to a replacement
contractor in the event of a termination of the Company pursuant to Section 20 of the
Contract), or any permitted assignment, conveyance or other transfer of any of their
respective interests;
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(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 Landfill, Disposal Site and/or Processing Facility (if applicable);
(7) the voluntary or involuntary liquidation, dissolution, sale or other
disposition of all or substantially all the assets, marshalling of assets and liabilities,
receivership, insolvency, bankruptcy, assignment for the benefit of creditors,
reorganization, moratorium, arrangement, composition with creditors or readjustment of,
or other similar proceedings against the Company or the Guarantor, or any of the
property of either of them, or any allegation or contest of the validity of this Guaranty in
any such proceeding (it is specifically understood, consented and agreed to that, to the
extent permitted by law, this Guaranty shall remain and continue in full force and effect
and shall be enforceable against the Guarantor to the same extent and with the same
force and effect as if any such proceeding had not been instituted and as if no rejection,
stay, termination, assumption or modification has occurred as a result thereof, it being
the intent and purpose of this Guaranty that the Guarantor shall and does hereby waive
all rights and benefits which might accrue to it by reason of any such proceeding);
(8) except as permitted by Sections 4.1 or 4.2 hereof, any sale or other
transfer by the Guarantor or any Affiliate of any of the capital stock or other interest of
the Guarantor or any Affiliate in the Company now or hereafter owned, directly or
indirectly, by the Guarantor or any Affiliate, or any change in composition of the interests
in the Company;
(9) any failure on the part of the Company for any reason to perform or
comply with any agreement with the Guarantor;
(10) the failure on the part of the City to provide any notice to the Guarantor
which is not required to be given to the Guarantor pursuant to this Guaranty and to the
Company as a condition to the enforcement of obligations pursuant to the Contract;
(11) any failure of any party to mitigate damages resulting from any default by
the Company or the Guarantor;
(12) the merger or consolidation of any party into or with any other person, or
any sale, lease, transfer, abandonment or other disposition of any or all of the property
of any of the foregoing to any person;
(13) any legal disability or incapacity of any party; or
(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
C-5
recoverable from the Guarantor as though the Guarantor were principal obligor in place of the
Company pursuant to the terms of the Contract and not merely a guarantor and shall be paid by
the Guarantor forthwith subject to the terms of this Guaranty. Notwithstanding anything to the
contrary expressed in this Guaranty, nothing in this Guaranty shall be deemed to amend,
modify, clarify, expand or reduce the Company's rights, benefits, duties or obligations under the
Contract. To the extent that any of the matters specified in subparagraphs (1) through (6) and
(8) through (14) would provide a defense to, release, discharge or otherwise affect the
Company's Obligations, the Guarantor's obligations under this Guaranty shall be treated the
same.
SECTION 111.4. DEFENSES, SET-OFFS AND COUNTERCLAIMS.
Notwithstanding any provision contained herein to the contrary, the Guarantor shall be entitled
to exercise or assert any and all legal or equitable rights or defenses which the Company may
have under the Contract or under Applicable Law (other than bankruptcy or insolvency of the
Company and other than any defense which the Company has expressly waived in the Contract
or the Guarantor has expressly waived in Section 3.5 hereof or elsewhere hereunder), and the
obligations of the Guarantor hereunder are subject to such counterclaims, set-offs or defenses
which the Company is permitted to assert pursuant to the Contract, if any.
SECTION 111.5. WAIVERS BY THE GUARANTOR. The Guarantor hereby
unconditionally and irrevocably waives:
(1) notice from the City of its acceptance of this Guaranty;
(2) notice of any of the events referred to in Section 3.3 hereof, except to the
extent that notice is required to be given as a condition to the enforcement of obligations
under the terms and conditions of the Contract;
(3) to the fullest extent lawfully possible, all notices which may be required by
statute, rule of law or otherwise to preserve intact any rights against the Guarantor,
except any notice to the Company required pursuant to the Contract or Applicable Law
as a condition to the performance of any obligation under the terms and conditions of
this Contract;
(4) to the fullest extent lawfully possible, any statute of limitations defense
based on a statute of limitations period which may be applicable to guarantors (or parties
in similar relationships) which would be shorter than the applicable statute of limitations
period for the underlying claim;
(5) any right to require a proceeding first against the Company;
(6) any right to require a proceeding first against any person;
(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
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the provisions of this Section 3.5, by rule of law or otherwise, constitute grounds for
relieving or discharging the Guarantor in whole or in part from its absolute, present,
irrevocable, unconditional and continuing obligations hereunder.
SECTION 111.6. PAYMENT OF COSTS AND EXPENSES. The Guarantor
agrees to pay the City on demand all reasonable costs and expenses, legal or otherwise
(including counsel fees), incurred by or on behalf of the City in successfully enforcing by Legal
Proceeding observance of the covenants, agreements and obligations contained in this
Guaranty against the Guarantor, other than the costs and expenses that the City incurs in
performing any of its obligations under the Contract.
SECTION 111.7. SUBORDINATION OF RIGHTS. The Guarantor agrees
that any right of subrogation or contribution which it may have against the Company as a result
of any payment or performance hereunder is hereby fully subordinated to the rights of the City
hereunder and that the Guarantor shall not recover or seek to recover any payment made by it
hereunder from the Company until the Company and the Guarantor shall have fully and
satisfactorily paid or performed and discharged the obligations giving rise to a claim under this
Guaranty.
SECTION 111.8. SEPARATE OBLIGATIONS: REINSTATEMENT. The
obligations of the Guarantor to make any payment or to perform and discharge any other duties,
agreements, covenants, undertakings or obligations hereunder shall (1) to the extent permitted
by Applicable Law, constitute separate and independent obligations of the Guarantor from its
other obligations under this Guaranty, (2) give rise to separate and independent causes of
action against the Guarantor, and (3) apply irrespective of any indulgence granted from time to
time by the City. The Guarantor agrees that this Guaranty shall be automatically reinstated if
and to the extent that for any reason any payment or performance by or on behalf of the
Company is rescinded or must be otherwise restored by the City, whether as a result of any
proceedings in bankruptcy, reorganization or similar proceeding, unless such rescission or
restoration is pursuant to the terms of the Contract or the Company's enforcement of such terms
under Applicable Law.
SECTION 111.9. TERM. This Guaranty shall remain in full force and effect
from the date of execution and delivery hereof until all of the Obligations of the Company have
been fully paid and performed. This Guaranty shall be effective irrespective as to when the
commencement date occurs.
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ARTICLE IV
GENERAL COVENANTS
SECTION IV.1. MAINTENANCE OF CORPORATE EXISTENCE.
(A) Consolidation, Merger, Sale or Transfer. The Guarantor covenants that during
the term of this Guaranty it will maintain its corporate existence, will not dissolve or otherwise
dispose of all or substantially all of its assets and will not consolidate with or merge into another
entity or permit one or more other entities to consolidate with or merge into it, unless the
successor is the Guarantor and the conditions contained in clause (B) below are satisfied;
provided, however, that the Guarantor may consolidate with or merge into another entity, or
permit one or more other entities to consolidate with or merge into it, or sell or otherwise transfer
to another entity all or substantially all of its assets as an entirety and thereafter dissolve if the
successor entity (if other than the Guarantor) (a) assumes in writing all the obligations of the
Guarantor hereunder and, if required by law, is duly qualified to do business in the State of
Texas, and (b) delivers to the City an opinion of counsel to the effect that its obligations under
this Guaranty are legal, valid, binding and enforceable subject to applicable bankruptcy and
similar insolvency or moratorium laws.
(B) Continuance of Obligations. If a consolidation, merger or sale or other
transfer is made as permitted by this Section 4.1, the provisions of this Section 4.1 shall
continue in full force and effect and no further consolidation, merger or sale or other transfer
shall be made except in compliance with the provisions of this Section 4.1. No such
consolidation, merger or sale or other transfer shall have the effect of releasing the initial
Guarantor from its liability hereunder unless a successor entity has assumed responsibility for
this Guaranty as provided in this Section 4.1.
SECTION IV.2. ASSIGNMENT. Without the prior written consent of the
City, this Guaranty may not be assigned by the Guarantor, except pursuant to Section 4.1
hereof.
SECTION IV.3. QUALIFICATION IN TEXAS. The Guarantor agrees that,
so long as this Guaranty is in effect, if required by law, the Guarantor will be duly qualified to do
business in the State of Texas.
SECTION IVA. CONSENT TO JURISDICTION. The Guarantor
irrevocably: (1) agrees that any Legal Proceeding arising out of this Guaranty shall be brought in
the State or federal courts in Fort Worth, Texas having appropriate jurisdiction; (2) consents to
the jurisdiction of such court in any such Legal Proceeding; (3) waives any objection which it
may have to the laying of the jurisdiction of any such Legal Proceeding in any of such courts;
and (4) waives its right to a trial by jury in any Legal Proceeding in any of such courts.
SECTION IV.5. BINDING EFFECT. This Guaranty shall inure to the
benefit of the City and its permitted successors and assigns and shall be binding upon the
Guarantor and its successors and assigns.
SECTION IV.6. AMENDMENTS, CHANGES AND MODIFICATIONS. This
Guaranty may not be amended, changed or modified or terminated and none of its provisions
may be waived, except with the prior written consent of the City and of the Guarantor.
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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
IESI Corporation
Attn: Mr. Thomas Fowler, General Counsel
6125 Airport Freeway, Suite 201
Haltom City, TX 76117
(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.
C-9 3/20/03
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.
IESI CORPORATION, as Guarantor
ATTEST: By:
Printed ame: Jeff Peckham
Title: Vice-President
Accepted and Agreed to by:
[City Seal] CITY OF RT WORTH
1
ATTE By:�_� U
Printed Name :Libby Watson
�. (5\8 IS --I Title: Assistant City Manager
Contra c Au-chor ' aatfon
I1
C-10 3/20/03
City of Fort Worth, Texas
"Agar And council COMI"U"icatio"
DATE REFERENCE NUMBER LOG NAME PAGE
11/5/02 C-19339 52YARD 1 of 2
SUBJECT AUTHORIZATION TO EXECUTE A CONTRACT WITH INDEPENDENT ENVIRONMENTAL
SERVICES, INC. TEXAS CORPORATION (IESI TX CORPORATION) FOR MUNICIPAL
YARD WASTE PROCESSING AND TYPE IV, C& D WASTE PROCESSING AND DISPOSAL
RECOMMENDATION:
It is recommended that the City Council:
1. Authorize the City Manager to negotiate and execute a contract with Independent Environmental
Services, Inc. Texas Corporation (IESI TX Corporation) for yard waste processing and Type IV, C & D
(construction and demolition) waste processing and disposal; and
2. Authorize this contract to begin April 1, 2003, and expire March 31, 2013, with three ten-year
renewal options. The estimated cost for FY2002-2003 is $1,639,180. The estimated value of this
contract over the ten-year term is $24,484,463.
DISCUSSION:
On July 2, 2002, the City received responses to a Request for Proposal (RFP) for a variety of solid
waste services to include yard waste processing and Type IV, C & D waste processing and disposal.
Following initial proposal evaluations, the evaluation committee comprised of 14 representatives from
the City Manager's Office, M/WBE Office, Internal Audit, the Finance Department, and the Law
Department, with significant input from the consulting firm of Gershman, Brickner and Bratton, solicited
best and final offers from the RFP respondents. After evaluation of these best and final offers, firms
were selected for interviews, presentations and negotiations. Independent Environmental Services, Inc.
Texas Corporation (IESI TX Corporation) is recommended as awardee for these processing and
disposal services based on evaluation factors enumerated on the attached RFP proposal evaluation
matrix.
These services shall include yard waste processing and Type IV, C & D waste processing and disposal.
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 three responses
for yard waste and brush processing, three for Type IV waste disposal, and one response for Type IV
waste processing.
PROPOSAL EVALUATION - See attached evaluation matrix.
City of Fort Worth, Texas
"61.4or And Council Communication
DATE REFERENCE NUMBER LOG NAME PAGE
11/5/02 C-19339 1 52YARD 2 of 2
SUBJECT AUTHORIZATION TO EXECUTE A CONTRACT WITH INDEPENDENT ENVIRONMENTAL
SERVICES, INC. TEXAS CORPORATION (IESI TX CORPORATION) FOR MUNICIPAL
YARD WASTE PROCESSING AND TYPE IV, C& D WASTE PROCESSING AND DISPOSAL
M/WBE - Independent Environmental Services, Inc. Texas Corporation (IESI TX Corporation) 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 consecutive ten-year terms at the
City's option. This action does not require specific City Council approval provided that the City Council
has appropriated sufficient funds to satisfy the City's obligations during the renewal term.
FISCAL INFORMATION/CERTIFICATION:
The Finance Director certifies that funds are available in the current operating budget, as appropriated,
of the Solid Waste Fund, and that subsequent year operating costs will be budgeted.
CB:k
Submitted for City Manager's FUND I ACCOUNT CENTER AMOUNT CITY SECRETARY
Office by: (to)
Charles Boswell 6183
Originating Department Head:
Brian Boerner 8079 (from) APPROVED 11/05/02
PE64 539120 0525004 $1,639,180.00
Additional Information Contact:
Brian Boerner 8079
F0RTWORTH SOLID WASTE SERVICES REQUEST FOR PROPOSALS
Page 1 of 4
PROPOSAL FORM C-5
FORM OF PERFORMANCE BOND
Bond #551694
THE STATE OF TEXAS )
COUNTY OF TARRANT ) SS.
KNOW ALL MIEN BY THESE PRESENTS: That we (1) IFSI TX Caeporaticn,
(2) of 6125 Airport Freeway, Suite 202, Haltom City, TX
hereinafter called Principal, and (3) Evergreen National Indemnity Company 76117
a corporation organized and
existing under the laws of the State of Ohio and fully
authorized to transact business in the State of Texas as Surety, are held and
firmly bound unto the City of t=ort Worth, a municipal corporation organized and
existing under the laws of the State of Texas hereinafter called City, in the penal
SUM of_ONE MILLION AND_NO/100 ($1,000,600.00) Dollars in lawful money of
the United States, to be paid in Fort Worth, Tarrant County, Texas, for the
payment of which sum well and truly to be made, we hereby bind ourselves, our
heirs, executors, administrators and successors, jointly and severally, firmly by
these presents.
THE CONDITION OF THIS OBLIGATION is such that whereas the
Principal entered into a certain Contract with the City of Fort Worth, dated /
i, 2 0�)_ _, a copy of which is hereto attached and made a part hereof, to
pr6vide the public service of as specifically directed by the Director of City
Services of the City of Fort Worth, such public service hereinafter referred to as
the"Work".
NOW, THEREFORE, if the Principal shall well, truly and faithfully perform
the Work in accordance with the Specifications and Contract Documents during
the original term thereof, and any extensions or renewals thereof without or
without notice to he Surety, and if Principal shall satisfy all claims and demands
of any kind incurred under such Contract, including but not limited to the payment
of all amounts owed by the Principal to persons who furnished labor, equipment,
materials, or services in connection with the Work, and if
*`* SEE ATTACHED SURETY LETTERS **'`
C-26
{� SOLID WASTE SERVICES REQUEST FOR PROPOSALS
Page 2 of 4
PROPOSAL FORM C-5
FORM OF PERFORMANCE BOND
(Continued)
the Principal shall fully indemnify and save harmless the City from all costs and damages
which it may suffer by reason of failure to do so, and shall reimburse and repay the City
all outlay and expense which the City may incur in making good any default, then this
obligation shall be void; otherwise to remain in full force and effect.
PROVIDED FURTHER, that if any legal action be filed upon this bond, venue shall fie
in Tarrant County, State of Texas.
PERFORMANCE BOND
AND PROVIDED FURHTER, THAT THE SAID Surety, for value received hereby
stipulates and agrees that no change, extension of time, renewal, alternations or additions
to the terms of the Contract or to the Work to be performed thereunder or the Specifications
accompanying the same shall in any ways affect its obligation on this bond, and it does
hereby waive notice of any change, extension of time, renewal, alteration or addition to the
terms of the Contract or to the work or to the Specifications.
TERM OF PERFORMANCE BOND AS STATED IN CONTRACT SECTION 24, Surety company shall
notify the City at least thirty (30) days in advance of lapse/non-renewal .
C-27
IRP-TWORTH SOLID WASTE SERVICES REQUEST FOR PROPOSALS
Page 3 of 4
PROPOSAL FORM C�5
FORM OF PERFORMANCE BOND
(Continued)
IN WITNESS WHEREOF, this instrument is executed in four counterparts, each one
of which shall be deemed an original dated March 11, 2003
IESI TX CORPORATION
Principal (4)
ATTEST. BY —
6125 Airport Freeway, Suite 202
Haltom City, Texas 76117
(Principal) Surety Address
Witness as to Principal
6125 Airport Freeway, Suite 202
Haltom City, Texas 76117 EVERGR EN NATIONAL INl2EYTY CO ANY
Address Sudety
ATTEST: �By:
tto ney-in-Fact (5) Kathleen P. Price
(SEAL)
Ka� p
Witness as to Surety T
6140 Parkland Boulevard, Suite 300
Cleveland, Ohio 44124
Address
C-28
EVERGREEN NATIONAL INDEMNITY COMPANY
COLUMBUS,OHIO
POWER OF ATTORNE V
PRINCIPAL IESI TX Corporation EFFECTIVE DATE April 1, 2003
CONTRACT AMOUNT AMOUNT OF BONDS 1,000,000.00
POWER NO. 551694
KNOW ALL MEN BY THESE PRESENTS: That the Evergreen National Indemnity Company, a corporation in the State of Ohio does hereby
nominate, constitute and appoint: Kathy J. Goe, Maria Jackson, William J. Koval, Jr., Kathleen P. Price and Patricia A. Temple its true and lawful
Attomey(s)-In-Fact to make, execute,attest,seal and deliver for and on its behalf,as Surety, and as its act and deed,where required,any and all bonds,
undertakings,recognizances and written obligations in the nature thereof,PROVIDED,however,that the obligation of the Company under this Power of
Attorney shall not exceed One Million Five Hundred Thousand Dollars(S1,500,000.00).
This Power of Attorney is granted and is signed by facsimile pursuant to the following Resolution adopted by its Board of Directors on the 23rd day of
February, 1994:
"RESOLVED,That any two officers of the Company have the authority to make,execute and deliver a Power of Attorney constituting as Attomey(s)-
in-fact such persons,firms,or corporations as may be selected from time to time.
FURTHER RESOLVED,that the signatures of such officers and the Seal of the Company may be affixed to any such Power of Attorney or any
certificate relating thereto by facsimile;and any such Power of Attorney or certificate bearing such facsimile signatures or facsimile seal shall be valid
and binding upon the Company;and any such powers so executed and certified by facsimile signatures and facsimile seal shall be valid and binding
upon the Company in the future with respect to any bond or undertaking to which it is attached."
IN WITNESS WHEREOF, the Evergreen National Indemnity Company has caused its corporate seal to be affixed hereunto, and these presents to be
signed by its duly authorized officers this 27th day of August,2001.
_
EVERGREEN NATIONAL INDEMNITY COMPANY
? �ppPORgTF y'�� QGl ��✓2/
W �+s-•p�=� 0 ; Roswell P.Ellis,President
\� OHIO ` Glenn D.Southwick,Treasurer
Notary Public)
State of Ohio) SS:
On this 27th day of August,2001,before the subscriber,a Notary for the State of Ohio,duly commissioned and qualified,personally came Roswell
P. Ellis and Glenn D. Southwick of the Evergreen National Indemnity Company, to me personally known to be the individuals and officers described
herein, and who executed the preceding instrument and acknowledged the execution of the same and being by me duly sworn,deposed and said that they
are the officers of said Company aforesaid, and that the seal affixed to the preceding instrument is the Corporate Seal of said Company, and the said
Corporate Seal and signatures as officers were duly affixed and subscribed to the said instrument by the authority and direction of said Corporation,and
that the resolution of said Company,referred to in the preceding instrument,is now in force.
IN TESTIMONY WHEREOF,I have hereunto set my hand and affixed my official seal at Columbus,Ohio,the day and year above written.
1 Of CXXP
•
WCOOIBBgNIXPP�Nlfi0.�c,WWYM sumanw Notary Public State of Ohio
' m00
My Commission expires.August 6.2004
State of Ohio) SS:
1, the undersigned. Secretary of the Evergreen National Indemnity Company, a stock corporation of the State of Ohio, DO HEREBY CERTIFY
that the foregoing Power of Attorney remains in full force and has not been revoked; and furthermore that the Resolution of the Board of Directors, set
forth herein above,is now in force.
Signed and sealed in Columbus.Oh)o this_ 11th day of March 2003
J? GpFPOR iTF��i -- -- —- - -
r —
t 1 r John A �9araz�a. Se�retar
6 SEAL, 1 AnN tcpr('dua:or,OF`a;;imiie o!this !;,gin i,% yid and in%alid
Texas Department of Insurance
CeiLificate No. 11142 Company No. 08-006002
Certificate of Authority
THIS IS TO CERTIFY THAT
EVERGREEN NATIONAL INDEMNITY COMPANY
COLUMBUS , OHIO
has complicd with the lau,` of the Statc of Texas applicable thereto and is hereby authorized to transact the
buxincss of
Fire ; Allied Coverages ; Inland Marine ; Automobile--Liability &
Physical Damage; Liability other than Automobile; Fidelity & Surety;
Burglary & Theft; Boiler & Machinery and Reinsurance on all lines
authorized to be written on a direct basis
insur-ance within the state of Texas. This Ceru(icate of Authority shall be in full force and effect until it is
rcvokcd. canceled or sutipcndcd according to law.
IN TESTIMONY witncs; m•: hand and seal 01
office at Austin, Te;2.s. this
26t:i day c a n r i l A.D. L i
ELTON BOM—HO
r CO`.1,,v:7 0 R OF I�,'S'„aa.NCE
C
Insurer Scr.;:;-cs
Evergreen National Indemnity Company
Certificate
2001
The following financial information was excerpted from the Statutory Annual Statement filed by
Evergreen National Indemnity Company with the Ohio Department of Insurance on March 1, 2002.
STATEMENT OF INCOME
Direct Written Premium $26,230,721
Reinsurance Assumed 9,361,337
Reinsurance Ceded (26,831,300)
Net Written Premium 8,760,758
Change in Unearned 436,423
Net Earned Premium 8,324,335
Losses & LAE Incurred 4,570,348
Commission Expense 2,816,315
Other Expenses 1,433,351
Underwriting Gain/(Loss) (495,679)
Investment Gain 1,045,178
Other Income/(Expense) 733,033
Income Before FIT 1,282,532
Federal Income Tax 393,500
Net Income 889,032
BALANCE SHEET
Assets
Invested Assets 21,168,200
Agents' Balances (net of Reins.) 307,156
Reinsurance Recoverable 19,253,747
Other Assets 2,201,992
Total Assets 42,931,095
Liabilities & Surplus
Unearned Premium Reserve 2,845,435
Loss & LAE Reserves 7,769,087
Other Liabilities 17,682,434
Total Liabilities 28,296,956
Surplus 14,634,139
1 hereby certify that the above information is that contained in the Statutory Annual
Statement filed by Evergreen National Indemnity Company with the Ohio Department of Insurance for the
year ending December 31, 2001.
John A. Marazza, Secretary
ACORDM CERTIFICATE OF LIABILITY INSURANCE DATE(MM/DWM
03/10/2003
PRODUCER Rob Machacek THIS CERTIFICATE IS ISSUED AS A MATTER OF INFORMATION
Talbot Agency, Inc. ONLY AND CONFERS NO RIGHTS UPON THE CERTIFICATE
HOLDER. THIS CERTIFICATE DOES NOT AMEND, EXTEND OR
P O Box 90756 87199 ALTER THE COVERAGE AFFORDED BY THE POLICIES BELOW.
7770 Jefferson NE, Suite 200 COMPANIES AFFORDING COVERAGE
Albuquerque, NM 87109 COMPANY American Cas Co of Reading, PA
(505) 828-4000 . fax (505) 828-0732 A
INSURED COMPANY Sheffield Insurance
B
IESI TX Corporation COMPANY Indian Harbor Insurance Company
6125 Airport Freeway #202
Haltom City, TX 76117 COMPANY Arch Specialty Insurance
D
COVERAGES
THIS IS TO CERTIFY THAT THE POLICIES OF INSURANCE LISTED BELOW HAVE BEEN ISSUED TO THE INSURED NAMED ABOVE FOR THE POLICY PERIOD
INDICATED, NOTWITHSTANDING ANY REQUIREMENT, TERM OR CONDITION OF ANY CONTRACT OR OTHER DOCUMENT WITH RESPECT TO WHICH THIS
CERTIFICATE MAY BE ISSUED OR MAY PERTAIN, THE INSURANCE AFFORDED BY THE POLICIES DESCRIBED HEREIN IS SUBJECT TO ALL THE TERMS,
EXCLUSIONS AND CONDITIONS OF SUCH POLICIES. LIMITS SHOWN MAY HAVE BEEN REDUCED BY PAID CLAIMS.
Go TYPE OF INSURANCE POLICY NUMBER POLICYEFFEL7WE POUCYEXPIRATION
LTR DATE(MM/DD/YY) DATE(MM/DD/YY) LIMITS
A GENERAL LIABILITY GL249215871 12/31/2002 12/31/2003 1 GENERAL AGGREGATE $ 2,000,000
X COMMERCIAL GENERAL LIABILITY PRODUCTS-COMP/OP AGG $ 2,000,000
CLAIMS MADE X❑OCCUR PERSONAL&ADV INJURY $ 1,000,000
OWNER'S&CONTRACTOR'S PROT EACH OCCURRENCE $ 1.000.000
rX Contractual Liabilit FIRE DAMAGE(Any one fire) $ 500,000
MED EXP(Any one person) $ 10, 000
A AUTOMOBILELIABILITY BUA249215854 12/31/2002 12/31/2003
X ANY AUTO COMBINED SINGLE LIMIT $ 1,000,000
ALL OWNED AUTOS
BODILY INJURY $
SCHEDULED AUTOS (Per Person)
X HIRED AUTOS
BODILY INJURY $
X NON-OWNED AUTOS (Per accident)
PROPERTY DAMAGE $
GARAGE LIAENLITY AUTO ONLY-EA ACCIDENT $
ANY AUTO OTHER THAN AUTO ONLY:
EACH ACCIDENT $
AGGREGATE $
B EXCESS LIABILITY UMB123102 12/31/2002 12/31/2003 EACH OCCURRENCE $10,000, 000
X UMBRELLA FORM AGGREGATE $10,000, 000
D OTHER THAN UMBRELLA FORM UMB 12 310 2-01 I $
A WORKHRSCCMPENSATIONAND WC249215837 12/31/2002 12/31/2003 X I ToRVLAT °Ea
EMPLOYERS LIABILITY
EL EACH ACCIDENT $ 1,000,000
THE PROPRIETOR/ INCL EL DISEASE-POLICY LIMIT $ 1,000,000
PARTNERS/EXECUTIVE
OFFICERS ARE: EXCL EL DISEASE-EA EMPLOYEE $ 1,000,000
C OTHER 12/31/2002 12/31/2003
S_pplemental PEC000197003 $5,000,000 Each Incident
Environmental Auto
Liability (Pollutio MCS-90 Endorsement $5,000,000 Aggregate
DESCRIPTION OF OPERATIONSJLOCATIONS/VEHICLES/SPEr.IAL ITEMS
City of Fort worth, its officers, agents, employees, and representatives are Additional Insured ATIMA.
CERTIFICATE HOLDER CANCELLATION
City of Fort Worth SHOULD ANY OF THE ABOVE DESCRIBED POLICIES BE CANCELLED BFI THE
Department of Environmental Management EXPIRATION DATE THEREDF, THE ISSUING COMPANY WILL ENDEAVOR TO MAIL
1000 Throckmorton St 3 0 DAYS WRITTEN NOTICE TO THE CERTIFICATE HOLDER NAMED TO THE LEFT,
1 Tjs notice foi I r pa/ment
BUT FAILURE TO MAIL SUCH NOTICE SHALL IMPOSE NO OBLIGATION OR LIABILITY
OF ANY KJND UPQtL THE COMPANY ITS AGENTS OR RIPRE:SENTATNES
AUTHORIZED REPRESEN E
ACORD 25-S (1/95) a/(/@ACORD CORPORA ON 1988