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HomeMy WebLinkAbout2011-285 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 III 28 III RESOLUTION NO. 2011-285 RESOLUTION OF THE MAYOR AND COMMON COUNCIL OF THE CITY OF SAN BERNARDINO AUTHORIZING EXECUTION OF AN PROFESSIONAL SERVICES AGREEMENT WITH BURRTEC WASTE INDUSTRIES, INC., PURSUANT TO SAN BERNARDINO MUNICIPAL CODE SECTION 3.04.010 PARAGRAPH B3, TO ALLOW BURRTEC WASTE INDUSTRIES, INC., TO PROVIDE COMMINGLED RECYCLING AND COMMERCIAL RECYCLING PROCESSING. WHEREAS, the City has an existing non-exclusive Professional Services Agreement with Burbank Recycling Inc. (BRI) to process recycling materials for the City; WHEREAS, pursuant to San Bernardino Municipal Code Section 3.04.010 Paragraph B3, the City would like to enter into one or more Professional Services Agreements to process recycling; BE IT RESOLVED BY THE MAYOR AND COMMON COUNCIL OF THE CITY OF SAN BERNARDINO AS FOLLOWS: SECTION 1. That the Mayor and Common Council authorize execution of the Professional Services Agreement attached as Exhibit "A" with Burrtec Waste Industries, Inc., pursuant to San Bernardino Municipal Code Section 3.04.010 Paragraph B3, to allow Burrtec Waste Industries, Inc., to provide commingled recycling and commercial recycling processmg. SECTION 2. The authorization to execute the above-mentioned Agreement is rescinded if the parties to the Agreement fail to sign it within sixty (60) days of the passage of this resolution. III III 2011-285 RESOLUTION OF THE MAYOR AND COMMON COUNCIL OF THE CITY 1 OF SAN BERNARDINO AUTHORIZING EXECUTION OF AN PROFESSIONAL 2 SERVICES AGREEMENT WITH BURRTEC WASTE INDUSTRIES, INC., PURSUANT TO SAN BERNARDINO MUNICIPAL CODE SECTION 3.04.010 3 PARAGRAPH B3, TO ALLOW BURRTEC WASTE INDUSTRIES, INC., TO 4 PROVIDE COMMINGLED RECYCLING AND COMMERCIAL RECYCLING PROCESSING. 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 I HEREBY CERTIFY that the foregoing Resolution was duly adopted by the Mayor and Common Council of the City of San Bernardino at a regular meeting thereof, held on the 1ltlUayof October ,2011, by the following vote, to wit: Council Members: AYES NAYS ABSTAIN ABSENT MARQUEZ x JENKINS x BRINKER x SHORETT x KELLEY x JOHNSON x MCCAMMACK x Q~k-~. Racnel G. Clark, CMC, City Clerk The foregoing resolution is hereby approved this I q .,.. day of Oc-hb.u' , 20 I I. ~~~ Patri k J. Morns, 1 y of San Bernardino Approved as to form: JAMES F. PENMAN, City Attorney By: - , . 2011-285 Exhibit A Form of Agreement PROFESSIONAL SERVICES AGREEMENT FOR PROCESSING RECYCLING MATERIALS THIS AGREEMENT is made and entered into this 1 ih day of October, 2011 ("Effective Date"), by and between the CITY OF SAN BERNARDINO, a municipal corporation ("City"), and Burrtec Waste Industries, Inc., a California corporation ("Contractor") . WIT N E SSE T H: WHEREAS, The Legislature of the State of California, by enactment of the California Integrated Waste Management Act of 1989 ("AB 939"), incorporated into the California Public Resources Code as Section 40000 et seq., has declared that it is in the public interest to authorize and require local agencies to make adequate provision for the disposal of Solid Waste within their jurisdictions; and WHEREAS, City and Contractor are mindful of the provisions of the laws governing the safe collection, transport, recycling, and disposal of Solid Waste, including AB 939 (as amended), the Resource Conservation and Recovery Act ("RCRA"), and the Comprehensive Environmental Response, Compensation and Liability Act ("CERCLA"). City and Contractor desire to leave no doubts as to their respective roles and to memorialize that by entering into this Agreement. City is not thereby becoming an "arranger" or a "generator" as those terms are used in CERCLA, and that it is Contractor, not City, who is "arranging for" the disposal, composting, and recycling of Recyclable Material which may contain hazardous substances; and further to confirm that Contractor has agreed to indemnify the City in connection with any claims relating to the inadvertent or intentional disposal of hazardous materials that may occur in connection with Contractor's performance under this Agreement. WHEREAS, City and Contractor understand and agree that it is Contractor, and not City, who will take title to the Recyclable Materials, that City has not, and, by this Agreement does not, instruct Contractor on its methods of performing the duties under this Agreement. Any title in and to such Recyclable Materials that otherwise might exist in or with City in the absence of this Agreement is hereby transferred to Contractor. WHEREAS, Contractor has agreed, as part of this Agreement, to provide such services as are necessary to ensure City complies with the requirements of Public Resources Code Section 40000, et seq. WHEREAS, City proposes to have Contractor perform the services described in the City's Request for Proposal and incorporated herein by reference; and WHEREAS, Contractor represents that it has that degree of specialized expertise contemplated within California Government Code, Section 37103, and holds all necessary licenses to practice and perform the services herein contemplated; and 1 Professional Services Agreement For Processing Recycling Materials 9-21-2011 Final . . 2011-285 WHEREAS, City and Contractor desire to contract for specific services in connection with the Recycling of Recyclable Materials and desire to set forth their rights, duties and liabilities in connection with the services to be performed; and WHEREAS, no official or employee of City has a financial interest, within the provisions of California Government Code, Sections 1090-1092, in the subject matter of this Agreement. NOW, THEREFORE, for and in consideration of the mutual covenants and conditions contained herein, the parties hereby agree as follows: SECTION 1.00 RECITALS The Parties acknowledge the above recitals are true and correct and incorporate them herein as if they were fully restated. SECTION 2.00 DEFINITIONS Whenever any term used in this Agreement has been defined by Division 30, Part 1, Chapter 2 of the California Public Resources Code, or Chapter 8.24 of the City of San Bernardino Municipal Code, the definition of such term set forth therein shall apply unless the term is otherwise defined in this Agreement. The terms defined herein shall have the meaning set forth in this Agreement. Otherwise, the terms herein shall have their ordinary meaning. 2.1 AB 939. "AB 939" shall mean the California Integrated Waste Management Act of 1989, currently codified as California Public Resources Code Section 40000 et seq. as it may be amended from time to time. 2.2 City. "City" means the City of San Bernardino, a municipal corporation. 2.3 Contractor. "Contractor" shall mean Burrtec Waste Industries, Inc., the entity entering this Agreement with the City, or any party permitted pursuant to the terms hereof to become the successor or assignee thereof. 2.4 Effective Date. "Effective Date" shall mean November 1, 2011. 2.5 Hazardous Waste. "Hazardous Waste" means (i) all waste defined or characterized as hazardous waste by the federal Solid Waste Disposal Act (42 U.S.C. 9 3251 et seq.), as amended, including the Resource Conservation and Recovery Act of 1976 (42 U.S.C. 9 6901 et seq.) and all future amendments thereto, or regulations promulgated thereunder and (ii) all waste defined or characterized as hazardous waste by the principal agencies of the State of California (including without limitation the Department of Health Services and the California Waste Management Board) having jurisdiction over hazardous waste generated by facilities within such state, provided that the term "Hazardous Waste": A. Is intended to mean and include those substances that are not normally expected to be disposed of by generally accepted sanitary landfill disposal 2 Professional Services Agreement For Processing Recycling Materials 9-21-2011 Final 2011-285 methods; B. Shall include radioactive wastes; and C. Shall be construed to have the broader, more encompassing definition where there exists a conflict in the definitions employed by two or more governmental agencies having concurrent or overlapping jurisdiction over hazardous waste. 2.6 Municipal Code. "Municipal Code" shall mean the "San Bernardino Municipal Code" of the City of San Bernardino 2.7 Recycling. "Recycling" means the process of collecting and turning used products, including, but not limited to, newspapers, cans, corrugated cardboard and bottles, into new products by reprocessing or remanufacturing them. 2.8 Recyclable Material. "Recyclable Material" or "Recyclables" shall mean all Solid Waste, garbage, trash, refuse, construction and demolition debris, and any other Solid Waste which is capable of being recycled. 2.9 RFP. "RFP" means the City's Request for Proposal attached hereto as Exhibit "A" and incorporated herein as though set forth in full. 2.10 Response. "Response" means Contractor's response to honor the terms of the current agreement in place with Burbank Recycling Inc. to process curbside and commercial recycling and remit payments to the City based upon the overall recycling percentage. 3.0. SERVICES PROVIDED BY CONTRACTOR 3.1 Scope of Services. Contractor shall provide the services described in Contractor's Response. Specifically, Contractor shall collect City's recyclable material at a designated location, acceptable to the City, transport the material for processing at an approved recycling facility, and dispose of non-recyclable residue at an approved County of San Bernardino disposal facility per the Waste Disposal Agreement. Contractor will accept materials for recycling from the City's recycling Program serving single-family residences and commercial accounts. Contractor will provide a facility at the location specified below for Off-loading City recycling trucks. The facility will be available to begin accepting materials by November 1, 2011. The designated facilities are: Burrtec Waste Industries, Inc. " ~ \ ~1:.D t65e Agua Mansa Road ~ Riverside, CA 92509 Burrtec Waste Industries, Inc. 5455 Industrial Parkway San Bernardino, CA 92407 Unloading TimelTruck Turn-around Time-Each City recycling truck entering the Contractor's facility shall have a maximum of 15 minutes turnaround time from the time the truck arrives at the facility until the time the truck exits the facility. The 15-minute 3 Professional Services Agreement For Processing Recycling Materials 9-21-2011 Final 2011-285 turnaround time shall apply under all circumstances. The Contractor shall either provide separate scales, ingress and egress from their facility or otherwise accommodate City vehicles to avoid queuing City vehicles behind self-haul trucks. Contractor shall provide a means to avoid "stacking" of recycling trucks on public streets as they enter their facility(s). Contractor shall provide City trucks preference over the general public to facilitate off-loading efficiencies and turn-around time. Accounting System - Contractor shall design an accounting system for all Recyclable materials delivered by City trucks. The accounting system must be developed by the Contractor and approved by the City prior to program start-up. Commingled materials on City trucks shall be accounted for based on factors derived from periodic sampling, separate processing, or by other means as agreed to by the City, to establish factors for the percent of each material. The Contractor shall comply with all Federal, State and local regulations that apply to recyclable materials delivered to them by City recycling trucks under the terms of this agreement. Unmarketable Materials - In no case shall the Contractor take any City delivered recyclable materials to a disposal facility unless permission in writing is provided by the City on a load-by-Ioad basis. If the Contractor can demonstrate that a material is not marketable, such permission shall not be unreasonably withheld. This provision does not apply to residue that is incidental to processing recyclables. Contractor will provide for alternative off-loading methods in the event of reasonable down -time due to repair and maintenance of equipment. Contractor shall maintain adequate space to stockpile recyclable materials during such reasonable down time for acceptance of material without a break in service. "Reasonable down time" shall be defined as less than one day each operating month. Contractor shall be responsible for disposal of residue from processing of City recyclables at no charge to City and in compliance with the Waste Disposal Agreement. Contractor's facilities shall be open to receive materials from City trucks Monday through Saturday, year round. Facilities shall be open to receive City materials from 6:30 a.m. to 5:00 p.m. Contractor shall provide an area for tipping of City vehicles separate from the general public. Contractor shall provide spotting of City trucks in areas at their facility with tight maneuverability. Contractor shall allow the City's representatives to inspect their facilities during normal business hours to assure compliance with the service agreement. With the exception of what is recognized by the recycling industry as "residue" or "contaminants", Contractor agrees to divert all materials from landfill delivered to them by City recycling trucks. 4 Professional Services Agreement For Processing Recycling Materials 9-21-2011 Final . . 2011-285 Contractor shall provide use of a phone to City employees in the event a City driver needs to contact their supervisor regarding City business. Contractor shall provide paved surfaces for all areas where City trucks will operate at their facility. All ingress and egress from the Contractor's facility shall be paved. Contractor shall make reasonable accommodations to provide tours of their facilities to the public upon request by the City's representative. The City will not furnish facilities or equipment for this Agreement. 3.2 Equipment. Contractor shall furnish all labor, materials and equipment necessary to perform the services contemplated by this Agreement. 3.3. Professional Practices. All professional services to be provided by Contractor pursuant to this Agreement shall be provided by personnel experienced in their respective fields and in a manner consistent with the standards of care, diligence and skill ordinarily exercised by professional Contractors in similar circumstances in accordance with sound professional practices. Contractor also warrants that it is familiar with all laws that may affect its performance of this Agreement and shall advise City of any changes in any laws that may affect Contractor's performance of this Agreement. 3.4 Restriction on Manner of Collection. In order to ensure City complies with the provisions of AS 939, and to accurately account for and report the amount of Solid Waste including Recyclable Material collected within the City Limits and processed, recycled and/or disposed pursuant to this Agreement, City Recyclable Material shall not be commingled with any other Recyclable Material until City Recyclable Material has been weighed and/or accounted for in some other manner. 3.5 Pursuit and Manaqement of Grants. Contractor shall assist City in pursuing grants and other funding as may become available for recycling, public education and other recycling related programs. Contractor shall manage any such funding obtained, and implement any programs that may be funded, if requested to do so by City, and shall be entitled to compensation for such management services if the funding in question may be utilized to so compensate Contractor. 3.6. Warranty. Contractor warrants that it shall perform the services required by this Agreement in compliance with all applicable Federal and California employment laws including but not limited to those laws related to minimum hours and wages; occupational health and safety; fair employment and employment practices; workers' compensation insurance and safety in employment; and all other Federal, State and local laws and ordinances applicable to the services required under this Agreement. Contractor shall indemnify and hold harmless City from and against all claims, demands, payments, suits, actions, proceedings, and judgments of every nature and description including attorneys' fees and costs, presented, brought, or recovered against City for, or on account of any liability under any of the above-mentioned laws, which may be incurred by reason of Contractor's performance under this Agreement. 3.7. Non-discrimination. In performing this Agreement, Contractor shall not 5 Professional Services Agreement For Processing Recycling Materials 9-21-2011 Final 2011-285 engage in, nor permit its agents to engage in, discrimination in employment of persons because of their race, religion, color, national origin, ancestry, physical handicap, medical condition, marital status, sexual gender or sexual orientation, except as permitted pursuant to Section 12940 of the Government Code. Violation of this provision may result in the imposition of penalties referred to in Labor Code, Section 1735. 3.8. Business License. Contractor/ConsultanWendor warrants it possesses, or shall obtain, and maintain during the term of this Agreement a business registration certificate pursuant to Title 5 of the City of San Bernardino Municipal Code, and any and all other licenses, permits, qualifications, insurance and approvals of whatever nature that are legally required of contractor/consultants/vendor to practice its profession, skill or business. 3.9. DeleQation and AssiQnment. This is a personal service contract, and the duties set forth herein shall not be delegated or assigned to any person or entity without the prior written consent of City. Contractor may engage a subcontractor(s) as permitted by law and may employ other personnel to perform services contemplated by this Agreement at Contractor's sole cost and expense. . 3.10 Duty to Notify City. Contractor shall have a duty pursuant to this Agreement to notify the City of any charges, accusations, or lawsuits commenced, filed, prosecuted, or instituted by the California Deparment of Resources, Recycling and Recovery (aka "CaIRecycle"), the State of California, the Attorney General, and any other similar regulatory agency. The duty to notify the City shall extend to and include investigations by the applicable regulatory agency. 4.0 CITY RESPONSIBLlLlTIES 4.1 Access to City Documents. City shall provide to Contractor access to all information and documents in City's possession that are relevant and material with respect to Contractor's performance of this Agreement. 4.2 Access to City Owned Property. City will provide access to and make provisions for Contractor to enter upon City-owned property as may be required by Contractor to perform the services contemplated by this Agreement. 5.0. TERM, TERMINATION AND CURE 5.1. Term. This Agreement shall commence on the Effective Date and end on December 31, 2012, unless previously terminated as provided herein or as otherwise agreed to in writing by the parties. Subject to the provisions herein, this Agreement may be renewed for up to three (3) successive one (1) year terms. Such renewal will be deemed automatic unless this Agreement is sooner terminated as provided for hereinafter, or upon written notice of intent not to renew given by City at least 90 days prior to the expiration of this Agreement, or any renewal period thereof. 5.2. Termination. The City reserves and has the right and privilege of canceling, suspending or abandoning the execution of all or any part of the work contemplated by this Agreement, with or without cause, at any time, by providing thirty 6 Professional Services Agreement For Processing Recycling Materials 9-21-2011 Final 2011-285 (30) days written notice to Contractor. In the event of such termination, Contractor shall immediately stop rendering services under this Agreement unless directed otherwise by the City. 5.3. Cure. In the event Contractor defaults in the performance of any of the terms or conditions of this Agreement or fails to conform to the rules, and regulations, or any of the directions or instructions that may be properly made by City in the exercise of its powers, or fails, neglects or refuses to pay the consideration of any part thereof within 30 days after the same shall become due, or becomes unable to fulfill its obligations under this Agreement, or defaults in the performance of any of the other terms or provisions therein required, City shall have the following options without any further notice or authorization from Contractor, and its choice of any option shall in no way waive its rights to select any other option at any time. 5.3.1 City may give Contractor notice of such default. If the Contractor does not cure said default within 30 days after it was first discovered (forthwith for a default involving any condition involving safety) or make reasonable progress to cure said default (reasonable progress to be determined at City's sole and absolute discretion), City may terminate this Agreement on a date of its choice. 5.3.2 The acceptance of all or part of recycling revenues by City for any period after a default shall not be deemed a waiver of any of these options, nor a waiver of the default of any subsequent default of the same or any other term, covenant and condition. Any waiver by City of a default on the part of Contract shall not be construed as, or constitute a waiver of, any subsequent default of the same or any other term, covenant and condition. 5.3.3 In the event City defaults in the performance of any of the terms or conditions of this Agreement, and if a written notice of such default is issued to City by Contractor by registered mail, and if City does not cure said default within thirty (30) days of receipt of said notice or makes reasonable progress in curing such default, then Contractor may immediately terminate this Agreement, and recover at law any and all claims which may be due. 5.4 Compensation. In the event of early termination, Contractor shall pay City compensation for all Recyclable Materials delivered by the City as of the date of termination. 5.5 Documents. In the event of termination of this Agreement, all writings prepared by Contractor in its performance of this Agreement including, but not limited to, data, reports and materials as may have been accumulated by Contractor in the performance of this Agreement, shall be delivered or otherwise made available to City within ten (10) days of Contractor's receipt of termination notice, at no cost to City. The term "writings" shall be construed to mean and include: handwriting, typewriting, printing, photographing, electronic communication, and every other means of recording upon any tangible thing any form of communication or representation, including letter, 7 Professional Services Agreement For Processing Recycling Materials 9-21-2011 Final 2011-285 works, pictures, drawings, sounds, or symbols, or combinations thereof. City shall have full ownership and control of all such writings delivered by Contractor pursuant to this Agreement. 6.0. COMPENSATION AND ACCOUNTING 6.1. Revenue Calculation. Revenue calculation shall be calculated as set forth below: Contractor will pay City $15 per ton less a 40% weight deduction for residual. Example: If the City delivers 1500 tons during a given month to Contractor the following year-one calculation will apply: 1500 tons less 40% = 900 tons x $15 per ton = $13,500 net payment. At the end of 60 days, a mutually audited waste characterization will be performed that will potentially increase the Contractor payment to the City. If the said waste characterization demonstrates that the City's residual reduces to 30% or below, the Contractor's payment to the City increases from $15 per ton to $20 per ton. If the said waste characterization demonstrates that the City's residual reduces to 25% or below, the Contractor's payment to the City increases from $15 per ton to $22.50 per ton. If the said waste characterization demonstrates that the City's residual reduces to 20% or below, the Contractor's payment to the City increases from $15 per ton to $25 per ton. If the said waste characterization demonstrates that the City's residual reduces to 15% or below, the Contractor's payment to the City increases from $15 per ton to $30 per ton. If the said waste characterization demonstrates that the City's residual reduces to 10% or below, the Contractor's payment to the City increases from $15 per ton to $40 per ton. Quarterly waste characterizations and potential per ton price change will happen upon mutual agreement by both parties. At no time during the contract will the Contractor charge the City or increase the residual deduction to more than 40%. The parties agree that the characterization of 40% residue is material to this Agreement and that the City relied on such characterization in entering into the Agreement. Contractor shall be responsible to perform periodic characterizations in accordance with best management practices. The City's representatives shall observe any future characterizations. Any recalculation of revenue from subsequent characterizations shall not result in the Contractor charging City for receipt of material, nor shall such characterization cause the level of residue to exceed 40%. In no event, shall the value of the City's material, net of residue disposed, be less than $zero ($0). 6.2 Payment to City. Contractor shall pay the Compensation for the preceding month to the City no later than thirty (30) calendar days from the end of each month. Payments to the City will include California Redemption Value applicable to curbside Recycling programs. 6.3 Late Payments. Interest on amounts past due will be assessed at the rate of 1.5% per month. 6.4 Monthly Summary Reports. Contractor will provide the City with a monthly report on the overall amount of Recyclable Materials delivered by the City recycling trucks. Monthly Invoices shall reflect the established percentages of each commodity type. Contractor shall submit the weight tickets and monthly summary report to the City within thirty (30) calendar days following the end of each month. 8 Professional Services Agreement For Processing Recycling Materials 9-21-2011 Final 2011-285 6.5. Additional Services. Contractor shall not receive compensation for any services provided outside the scope of services specified in the Response unless the City or its Project Manager, prior to Contractor performing the additional services, approves such additional services in writing. It is specifically understood that oral requests and/or approvals of such additional services or additional compensation shall be barred and are unenforceable. 6.6. Records and Audits. Records of Contractor's services relating to this Agreement shall be kept on a generally recognized accounting basis and shall be made available to City or its Project Manager for inspection and/or audit at mutually convenient times for a period of five (5) years from the commencement of this Agreement. Contractor shall maintain books and accounts of all project related weights by material type. Such records shall be available at all reasonable times for examination by the City at the office of Contractor. 7.0. TIME OF PERFORMANCE 7.1. Commencement of Work. The professional services to be performed pursuant to this Agreement shall commence within five (5) days from the Effective Date of this Agreement. 7.2. Excusable Delavs. Neither party shall be responsible for delays or lack of performance resulting from acts beyond the reasonable control of the party or parties. Such acts shall include, but not be limited to, acts of God, fire, strikes, material shortages, riots, acts of war, or any other conditions beyond the reasonable control of a party. 8.0. INSURANCE 8.1. Minimum Scope and Limits of Insurance. Contractor shall obtain and maintain during the life of this Agreement all of the following insurance coverages: (a) Comprehensive general liability, including premises-operations, products/completed operations, broad form property damage, blanket contractual liability, independent contractors, personal injury with a policy limit of not less than One Million ($1,000,000.00) Dollars per occurrence and Two Million ($2,000,000.00) Dollars, aggregate. (b) Automobile liability for owned vehicles, hired, and non-owned vehicles, with a policy limit of not less than One Million ($1,000,000.00) Dollars, combined single limits, per occurrence and aggregate. (c) Workers' compensation insurance as required by the State of California. 8.2. Endorsements. The comprehensive general liability and automobile liability insurance policies shall contain or be endorsed to contain the following provisions: 9 Professional Services Agreement For Processing Recycling Materials 9-21-2011 Final 2011-285 (a) Additional insureds: "The City of San Bernardino and its elected and appointed boards, officers, agents, and employees are additional insureds with respect to this subject project and contract with City." (b) Notice: "Said policy shall not terminate, nor shall it be cancelled, nor the coverage reduced, until thirty (30) days after written notice is given to City." (c) Other insurance: "Any other insurance maintained by the City of San Bernardino shall be excess and not contributing with the insurance provided by this policy." 8.3. Certificates of Insurance. Contractor shall provide to City certificates of insurance showing the insurance coverages and required endorsements described above, in a form and content approved by City, prior to performing any services under this Agreement. 8.4. Non-limitinq. Nothing in this Section shall be construed as limiting in any way, the indemnification provision contained in this Agreement, or the extent to which Contractor may be held responsible for payments of damages to persons or property. 9.0. GENERAL PROVISIONS 9.1. Entire Aqreement. This Agreement constitutes the entire Agreement between the parties with respect to any matter referenced herein and supersedes any and all other prior writings and oral negotiations. This Agreement may be modified only in writing, and signed by the parties in interest at the time of such modification. The terms of this Agreement shall prevail over any inconsistent provision in any other contract document appurtenant hereto, including exhibits to this Agreement. 9.2. Representatives. The City Manager or his designee shall be the representative of City for purposes of this Agreement and may issue all consents, approvals, directives and agreements on behalf of the City, called for by this Agreement, except as otherwise expressly provided in this Agreement. Contractor shall designate a representative for purposes of this Agreement who shall be authorized to issue all consents, approvals, directives and agreements on behalf of Contractor called for by this Agreement, except as otherwise expressly provided in this Agreement. 9.3. Proiect Manaqers. City designates the Public Works Director to act as the Project Manager to work directly with Contractor in the performance of this Agreement. Contractor shall designate a Project Manager who shall represent it and be its agent in all consultations with City during the term of this Agreement. Contractor or its Project Manager shall attend and assist in all coordination meetings called by City. 9.4. Notices. Any notices, documents, correspondence or other 10 Professional Services Agreement For Processing Recycling Materials 9-21-2011 Final 2011-285 communications concerning this Agreement or the work hereunder may be provided by personal delivery, facsimile or mail and shall be addressed as set forth below. If such communication is sent through regular United States mail, it shall be deemed served or delivered 48 hours after deposit in the U.S. Mail as reflected by the official U.S. postmark. In all other instances, notices, bills, and payments shall be deemed given at the time of actual delivery. Changes may be made in the names and addresses of the person to whom notices, bills, and payments are given by giving notice pursuant to this paragraph. IF TO CONTRACTOR: Burrtec Waste Industries, Inc., 9890 Cherry Ave, Fontana, Ca 92324 IF TO CITY: City of San Bernardino Public Works Director 300 North "0" Street San Bernardino, CA 92418-0001 Attn: Michael Arreguin Attn: Nadeem Majaj 9.5. Attornevs' Fees. In the event that litigation is brought by any party in connection with this Agreement, the prevailing party shall be entitled to recover from the opposing party all costs and expenses, including reasonable attorneys' fees, incurred by the prevailing party in the exercise of any of its rights or remedies hereunder or the enforcement of any of the terms, conditions, or provisions hereof. The costs, salary and expenses of the City Attorney and members of his office in enforcing this Agreement shall be considered as "attorneys fees" for purposes of this Agreement. 9.6. GoverninQ Law. This Agreement shall be governed by and construed under the laws of the State of California without regard to principles of conflict of laws. 9.7. Venue. The parties hereto agree that all actions or proceedings arising in connection with this Agreement shall be tried and litigated either in the State courts located in the County of San Bernardino, State of California or the U.S. District Court for th~ Central District of California. The aforementioned choice of venue is intended by the parties to be mandatory and not permissive in nature. 9.8. AssiQnment. Contractor shall not voluntarily or by operation of law assign, transfer, sublet or encumber all or any part of Contractor's interest in this Agreement without City's prior written consent. Any attempted assignment, transfer, subletting or encumbrance shall be void and shall constitute a breach of this Agreement and cause for termination of this Agreement. Regardless of City's consent, no subletting or assignment shall release Contractor of Contractor's obligation to perform all other obligations to be performed by Contractor hereunder for the term of this Agreement. In the event of mutual agreement between the parties to sublet a portion of the services to be performed pursuant to this Agreement, Contractor shall add the subcontractor as an additional insured to Contractor's insurance policy and provide City with the insurance endorsements prior to any work being performed by the subcontractor. Assignment does not include printing or other customary reimbursable expenses that may be provided in this Agreement. 9.9. Indemnification and Hold Harmless. Contractor shall protect, defend, indemnify, save and hold harmless City and its elected and appointed officials, officers, 11 Professional Services Agreement For Processing Recycling Materials 9-21-2011 Final 2011-285 and employees from any and all claims, liabilities, expenses, including attorney fees, damage to property or injuries to or death of any person or persons or damages of any nature including, but not by way of limitation, all civil claims or workers' compensation claims arising out of or in any way connected with the intentional or negligent acts, errors or omissions of Contractor, its employees and/or authorized agents or subcontractors in the performance of this Agreement. 9.10. Emplovment Indemnification. Contractor expressly waives all rights to subrogation against City, its Officers, employees and volunteers for losses arising from work performed by Contractor for City by expressly waiving Contractor's immunity for injuries to Contractor's employees and agrees that the obligation to indemnify, defend, save and hold harmless provided for in this Agreement extends to claims brought by or on behalf of any employee of Contractor. The parties mutually negotiate this waiver. This shall not apply to any damage resulting from the sole negligence of City, its agents and employees. 9.11. Hazardous Substances Indemnification. Without regard to any insurance coverage or requirements, and without limiting the above general indemnification obligation in any way, Contractor specifically agrees to and shall, to the maximum extent permitted by law, defend (with counsel acceptable to City) reimburse, indemnify, and hold City and its past and present officers, council members, employees, consultants and agents (hereinafter "Indemnified Parties") harmless from and against any and all claims, actions, liabilities, damages, demands, judgments, losses, costs, liens, expenses, suits, actions, attorneys' fees, consultant fees, penalties and any and all other losses, damages, fees and expenses of whatever kind or nature ("Claims") (including but not limited to response costs, investigative costs, assessment costs, monitoring costs, treatment costs, cleanup costs, removal costs, remediation costs, and similar costs, damages and expenses) that arise out of or are alleged to arise out of or in any way relate to any action, inaction or omission of Contractor that: (a) results in any demand, claim, notice, order, or lawsuit, asserting that any Indemnified Party is liable, responsible or in anyway obligated to investigate, assess, monitor, study, test, treat, remove, remediate, or otherwise cleanup, any Hazardous Contaminant (as defined herein); or (b) relates to material collected, transported, recycled, treated or disposed of by Contractor. Contractor's obligations pursuant to this Section shall apply, without limitation, to: (a) any Claims brought pursuant to or based on the provisions of the Comprehensive Environmental Response, Compensation and Liability Act ("CERCLA"), 42 U.S.C. 9 9601 et seq., the Resource Conservation and Recovery Act ("RCRA"), 42 U.S.C. 9 9601 et seq., the California Hazardous Substances Account Act (California Health & Safety Code Sections 25300 et seq.), the California Hazardous Waste Control Laws (California Health and Safety Code Sections 25100 et seq.), the California Porter- Cologne Act (California Water Code Section 13000 et seq.), and any and all amendments and regulations thereto, and any other Federal, State, regional or local environmental statutory or regulatory provision; 12 Professional Services Agreement For Processing Recycling Materials 9-21-2011 Final 2011-285 (b) any Claims based on or arising out of or alleged to be arising out of the ownership, use, lease, sale, design, construction, maintenance or operation of Contractor of any facility; (c) any Claims based on or arising out of or alleged to be arising out of the marketing, sale, distribution, storage, transportation, disposal, processing or use of any materials recovered by Contractor; (d) any Claims based on or arising out of or alleged to be arising out of any breach of any express or implied warranty, representation or covenant arising out of or in connection with this Agreement. The foregoing indemnity shall apply irrespective of the negligence or willful misconduct of Contractor or any affiliate of Contractor. For purposes of this Section, the term "Hazardous Contaminant" shall mean any "hazardous material," as that term is defined under California Health & Safety Code Section 25501(1); any "hazardous substance," as that term is defined under California Health & Safety Code Sections 25281(f), 25501 (e), 25501.1 and under Title 42, Section 9601(14) of the United States Code; any "hazardous waste," as that term is defined under Title 42, Section 6093(5) of the United States Code and under California Health & Safety Code Section 25550(m); any chemical which the Governor has identified as a chemical known to the State to cause cancer or reproductive toxicity pursuant to California Health & Safety Code Section 25249.8; any crude oil or refined or unrefined petroleum product or any fraction or derivative thereof; and any asbestos or asbestos- containing material. The term "Hazardous Contaminant" shall also include any and all amendments to the above-referenced statutory and regulatory provisions made before or after the date of execution of this Agreement. The provisions of this Section shall not terminate or expire and shall survive the termination or expiration of this Agreement. 9.11. Independent Contractor. Contractor is and shall be acting at all times as an independent contractor and not as an employee of City. Contractor shall secure, at his expense, and be responsible for any and all payment of Income Tax, Social Security, State Disability Insurance Compensation, Unemployment Compensation, and other payroll deductions for Contractor and its officers, agents, and employees, and all business licenses, if any are required, in connection with the services to be performed hereunder. 9.12 Public Records Act Disclosure. Contractor has been advised and is aware that all reports, documents, information and data including, but not limited to, computer tapes, discs or files furnished or prepared by Contractor, or any of its subcontractors, and provided to City may be subject to public disclosure as required by the California Public Records Act (California Government Code Section 6250 et. seq.). Exceptions to public disclosure may be those documents or information that qualify as trade secrets, as that term is defined in the California Government Code Section 6254.7, and which Contractor informs City of such "Trade Secret." "Confidential," or "Proprietary" status. The City will endeavor to maintain as confidential all information obtained by it that is designated as proprietary. The City shall not, in any way, be liable or responsible for the 13 Professional Services Agreement For Processing Recycling Materials 9-21-2011 Final 2011-285 disclosure of any such records including, without limitation, those so marked if disclosure is deemed to be required by law or by order of the Court. 9.13. Confidentiality. All findings, reports, information and exhibits prepared or assembled by Contractor in connection with the performance of its professional services pursuant to this Agreement are confidential and Contractor agrees that they shall not be made available to any individual or organization without the prior consent of City. 9.14. Responsibility for Errors. Contractor shall be responsible for its work and results under this Agreement. Contractor, when requested, shall furnish clarification and/or explanation as may be required by the City's representative, regarding any services rendered under this Agreement at no additional cost to City. In the event that an error or omission attributable to Contractor occurs, then Contractor shall, at no cost to City, provide all necessary design drawings, estimates and other Contractor professional services necessary to rectify and correct the matter to the sole satisfaction of City and to participate in any meeting required with regard to the correction. 9.15. Prohibited Employment. Contractor will not employ any regular employee of City while this Agreement is in effect. 9.16. Order of Precedence. In the event of an inconsistency in this Agreement and any of the attached Exhibits, the terms set forth in this Agreement shall prevail. If and to the extent this Agreement incorporates by reference any provision of the RFP or the Response, such provision shall be deemed a part of this Agreement. Nevertheless, if there is any conflict among the terms and conditions of this Agreement and those of any such provision or provisions so incorporated by reference, this Agreement shall govern over both the Response and the RFP and the Response shall govern over the RFP. 9.17. Costs. Each party shall bear its own costs and fees incurred in the preparation and negotiation of this Agreement and in the performance of its obligations hereunder except as expressly provided herein. 9.18. No Third Party Beneficiary Riqhts. This Agreement is entered into for the sole benefit of City and Contractor and no other parties are intended to be direct or incidental beneficiaries of this Agreement and no third party shall have any right in, under or to this Agreement. 9.19. Headinqs. Paragraphs and subparagraph headings contained in this Agreement are included solely for convenience and are not intended to modify, explain or to be a full or accurate description of the content thereof and shall not in any way affect the meaning or interpretation of this Agreement. 9.20. Construction. The parties have participated jointly in the negotiation and drafting of this Agreement. In the event an ambiguity or question of intent or interpretation arises with respect to this Agreement, this Agreement shall be construed as if drafted jointly by the parties and in accordance with its fair meaning. There shall be no presumption or burden of proof favoring or disfavoring any party by virtue of the authorship of any of the provisions of this Agreement. 14 Professional Services Agreement For Processing Recycling Materials 9-21-2011 Final 2011-285 9.21. Amendments. Only a written amendment executed by the parties hereto or their respective successors and assigns may amend this Agreement. 9.22. Waiver. No waiver of any provision of this Agreement shall be effective unless in writing and signed by a duly authorized representative of the party against whom enforcement of a waiver is sought. The waiver of any right or remedy in respect to any occurrence or event shall not be deemed a waiver of any right or remedy in respect to any other occurrence or event, nor shall any waiver constitute a continuing waiver. 9.24. Severabilitv. If any provision of this Agreement is determined by a court of competent jurisdiction to be unenforceable in any circumstance, such determination shall not affect the validity or enforceability of the remaining terms and provisions hereof or of the offending provision in any other circumstance. 9.25. Counterparts. This Agreement may be executed in one or more counterparts, each of which shall be deemed an original. All counterparts shall be construed together and shall constitute one agreement. 9.26. Corporate Authoritv. The persons executing this Agreement on behalf of the parties hereto warrant that they are duly authorized to execute this Agreement on behalf of said parties and that by doing so, the parties hereto are formally bound to the provisions of this Agreement. IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed by and through their respective authorized officers, as of the date first above written. atn k J. Morris, Ci y of San Bernardino J1~ ~.~ Rachel G. Clark, City Clerk City of San Bernardino CITY OF SAN BERNARDINO, A municipal corporation APPROVED AS TO FORM: - -- James F. Penman, City Attorney 15 Professional Services Agreement For Processing Recycling Materials 9-2]-20]] Fina]