HomeMy WebLinkAbout05.CD- Public Works RESOLUTION (ID #3272) DOC ID: 3272 D
CITY OF SAN BERNARDINO—REQUEST FOR COUNCIL ACTION
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Agreement/Contract Amendment
From: Tony Frossard M/CC Meeting Date: 06/16/2014
Prepared by: Timothy J. O'Neal, (909) 384-
5353 x1054
Dept: Public Works Ward(s): All
Subject:
Resolution of the Mayor and Common Council of the City of San Bernardino Authorizing the
Execution of Amendment No. One to the Professional Service Agreement for Municipal Waste
Hauling Between the City of San Bernardino and Burrtec Waste Industries, Inc. (#3272)
Current Business Registration Certificate: Not Applicable
Financial Impact:
Account Budgeted Amount: $2,803,000
Account No. 527-400-0095*5179
Account Description: Residential DumpWaste Fees
Balance as of. 6/5/2014 - $250,610
Account balance after approval: $50,610.00
0 Account Budgeted Amount: $3,128,700
Account No. 527-400-0096*5179
Account Description: Commercial DumpWaste Fees
Balance as of. 06/5/2014 - $962,520.07
Account balance after approval: $662,520.00
Please note this balance does not indicate available funding. It does not include non-encumbered
reccurring expenses or expenses incurred,but not yet processed.
Motion: Adopt the Resolution.
Synopsis of Previous Council Action:
October 17,2011 - Burrtec Waste Industries, Inc. Resolution and Agreement
July 18,2012 -Discussion of County Waste Delivery Agreement(WDA) and Possible Solutions
for Waste, Recyclables and Green Waste Processing in Anticipation of the Expiration of the
County WDA on December 31, 2012. Recommend Approval of Sealed Bids for Solid Waste
Processing to Council on August 6, 2012.
August 6, 2012 -Tabled- Solicitation of Sealed Bids for Solid Waste Material Processing, Green
Waste, Commingled Recycling and Construction and Demolition Debris
October 1,2012 -Continued-Discussion and Possible Action Re: Request for Proposals for
Franchising of All Components of the City's Solid Waste Services
Updated:6/12/2014 by Georgeann"Gigi"Hanna D Packet Pg. 992
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3272
October 15, 2012 - Tabled-Discussion and Possible Action Re: Request for Proposals for
Franchising of All Components of the City's Solid Waste Services (Continued from October 1,
2012 Meeting)
October 15,2012 -Authorize Staff to Extend and Expand Upon Existing Recycling Agreements
with Local Vendors on a Month-to-Month Basis and Authorize the City Manager to Give Notice
to the County of San Bernardino of the City's Intention Not to Extend the Waste Delivery
Agreement(WDA).
November 19, 2012 -Approval of a Month-to-Month Extension to Existing Agreements with
Burrtec Waste Industries, Inc. and Direct Staff to Further Negotiate with Vendors for Five and
Ten Year Pricing.
January 1, 2013 -Approval of a Five-Year agreement with one Five-year Extension with Burrtec
Waste Industries, Inc.
Background:
The City's ability to take refuse and other materials to County landfills ceased when the Waste
Disposal Agreement("WDA") expired on December 16, 2012. As such, the City made
arrangements to properly dispose of the waste not only for health and safety reasons but also to
comply with the law. Council directed staff to negotiate with vendors, one of which was Burrtec
Waste Industries, Inc.
On January 1, 2013, Council approved a five-year agreement,with one five-year extension
option with Burrtec Waste Industries, Inc. for processing of waste, recyclable and green waste.
The parties negotiated the agreements, and while Burrtec Waste Industries, Inc. would not agree
to a 30-day nor 12-month termination clause because their pricing structures are based on a five-
year agreement, they did agree to a"New Technology" provision that allows the City to avail
itself of new technologies that arise during the course of the contract.
The current purchase order is set at$2,500,000. This amount is not based on a contractual value
as the agreement does not indicate a fixed value, only a per-ton price. The proposed amendment
will incorporate a not-to-exceed value of$3,000,00 per year. This amount is based on tonnages
and per ton pricing over a 12-month period.
Staff recommends that the Mayor and Common Council authorize and direct the Director of
Administrative Services to authorize an amendment of the Professional Services Agreement with
Burrtec Waste Industries, Inc. for the processing of organic materials, recycling materials, and
municipal non-recyclable solid waste.
City Attorney Review:
Supporting Documents:
reso 3272 (PDF)
agrmt 3272 (PDF)
San Bernardino-Disposal -01_13 contract (PDF)
Updated:6/12/2014 by Georgeann"Gigi"Hanna D Packet Pg. 993
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I RESOLUTION NO.
2 RESOLUTION OF THE MAYOR AND COMMON COUNCIL OF THE CITY
OF SAN BERNARDINO AUTHORIZING THE EXECUTION OF AMENDMENT NO.
3 ONE TO THE PROFESSIONAL SERVICE AGREEMENT FOR MUNICIPAL
4 WASTE HAULING BETWEEN THE CITY OF SAN BERNARDINO AND BURRTEC
WASTE INDUSTRIES,INC.
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WHEREAS, the City of San Bernardino and Burrtec Waste Industries, Inc. entered
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7 into a Professional Service Agreement for the processing of Organic Materials, Recycling
8 Materials and Municipal Non-Recyclable Solid Waste,pursuant to San Bernardino Municipal
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9 Code 3.04.010(B)(3); 5
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10 WHEREAS, the agreement calls for a five-year agreement with one five-year
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11 extension as of January 1, 2013;
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WHEREAS,the Department of Public Works Integrated Waste Management Division 'r-
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14 desires to amend the current PSA to increase the current budgeted $2,500,000 to an amount
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15 not to exceed $3,000,000 in Auto Residential Collection's Dump Waste Fees for the
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16 establishment of a fixed budget amount for said agreement;
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7 NOW, THERFORE, BE IT RESOLVED BY THE MAYOR AND THE M
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COMMON COUNCIL OF THE CITY OF SAN BERNARDINO AS FOLLOWS-
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20 SECTION 1. The City Manager is hereby authorized and directed, pursuant to s
21 Section 3.04.010(B)(3) of the San Bernardino Municipal Code, to execute Amendment No. a
22 One, attached as Exhibit"1"hereto and incorporated as though set forth herein.
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I RESOLUTION OF THE MAYOR AND COMMON COUNCIL OF THE CITY
OF SAN BERNARDINO AUTHORIZING THE EXECUTION OF AMENDMENT NO.
2 ONE TO THE PROFESSIONAL SERVICE AGREEMENT FOR MUNICIPAL
WASTE HAULING BETWEEN THE CITY OF SAN BERNARDINO AND BURRTEC
3 WASTE INDUSTRIES,INC.
4 1 HEREBY CERTIFY that the foregoing Resolution was duly adopted by the Mayor
5 and Common Council of the City of San Bernardino at a meeting
6 thereof,held on the day of , 2014,by the following vote,to wit:
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8 Council Members: AYES NAYS ABSTAIN ABSENT
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9 MARQUEZ m
10 BARRIOS
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VALDIVIA o.
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13 SHORETT
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14 NICKEL
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15 JOHNSON
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16 MULVIHILL
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Georgeann Hanna, City Clerk `.
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20 The foregoing resolution is hereby approved this day of , 2014.
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22 R. CAREY DAVIS, Mayor
23 City of San Bernardino
24 Approved as to form.:
25 GARY D. SAENZ, City Attorney
26 By.
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1 AMENDMENT NUMBER ONE TO PROFESSIONAL SERVICES AGREEMENT
BETWEEN THE CITY OF SAN BERNARDINO AND BURRTEC WASTE
2 INDUSTRIES,INC.
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4 THIS AMENDMENT NUMBER ONE is made and entered into as of June 16, 2014
5 by and between the CITY OF SAN BERNARDINO, a charter city ("CITY") and BURRTEC
WASTE INDUSTRIES, INC. ("VENDOR"). In consideration of the mutual covenants and
6 conditions set forth herein,the parties agree as follows:
7 1. This Amendment is made with respect to the following facts and purposes:
8 a. On December 3, 2012, the City and Vendor entered into that certain
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9 agreement entitled "Professional Service Agreement" ("Agreement") for a 'm
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10 Five —Year agreement with one Five-year Extension with Burrtec Waste r
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11 Industries, Inc. effective January 1, 201.3.
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12 2. "Section 3.9A-Annual Budget Amount" is hereby added to the agreement to read o
as follows: "This agreement shall not to exceed the budget amount of d
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$3,000,000.00 per year.
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14 3. Except for the changes specifically set forth herein, all other terms and conditions a
15 of the Agreement shall remain in full force and effect. N
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16 IN WITNESS THEREOF, the parties hereto have caused this Amendment Number
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17 One to be executed by and through their respective authorized officers, as the date first M
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18 above written. E
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20 CITY OF SAN BERNARDINO, VENDOR
A Municipal Corporation Burrtec Waste Industries, Inc.
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Allen Parker, City Manager
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25 APPROVED AS TO FORM:
Gary D. Saenz, City Attorney
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PROFESSIONAL SERVICES AGREEMENT FOR THE
PROCESSING OF ORGANIC MATERIALS, RECYCLING MATERIALS
AND MUNICIPAL NON-RECYCLABLE SOLID WASTE BETWEEN THE
CITY OF SAN BERNARDINO AND BURRTEC WASTE INDUSTRIES,
INC.
THIS AGREEMENT is effective as of January 1, 2013 (the "Effective Date"),
by and between the CITY OF SAN BERNARDINO, a municipal corporation ("City"),
and Burrtec Waste Industries, Inc. ("Contractor").
WITNESSETH:
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 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
EXHIBIT 1
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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 this agreement; 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,
WHEREAS, City and Contractor desire to contract for specific services
in connection with the Diversion of Organic Materials, the Recycling of Recyclable
Materials and the disposal of Municipal Non-Recyclable Solid Waste, 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 the 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:
1.0 Recitals.
The Parties acknowledge the above recitals are true and correct and incorporate
them herein as if they were fully restated.
2.0 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.
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2-1 AB 939. "AB 939" shall mean the California Integrated Waste Management a
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 Beneficial Reuse. "Beneficial Reuse" shall mean the Diversion of Organic
Material from landfilling through the beneficial reuse of such materials, which
qualifies as Diversion credit under the statutes and regulations applicable to the
California Department of Resources Recycling and Recovery(CalRecycle).
2.3 City. "City" means the City of San Bernardino, a municipal corporation.
2.4 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.
2.5 Diversion. 'Diversion"means landfill diversion in compliance with AB 939.
26 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. § 3251 et seq.), as amended, including the Resource Conservation and
Recovery Act of 1976 (42 U.S.C. § 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 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.
27 Municipal Code. "Municipal Code" shall mean the "San Bernardino
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Municipal Code" of the City of San Bernardino. a`'
2.8 "Organic Material" or "Organics" shall mean all City collected yard
waste, including leaves, grass, and trimmings, which is capable of being diverted
through Beneficial Reuse or other means. '
29 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.
210 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.
3.0. Services Provided by Contractor; Organics, Recycling and Waste
Commitment.
3.1 Scope of Recycling Processing Services.
City will deliver to Contractor, or will cause its franchised haulers to deliver to
Contractor, approximately one half(+/- 5%) of all Recyclable Materials generated
in the City each month (or portion thereof) during the Term of this Agreement,
which is collected by City or its franchised haulers.
Contractor shall collect City's Recyclable Material at designated locations
acceptable to the City, transport the material for processing at an approved
recycling facility, and dispose of non-recyclable residue at an approved disposal site
selected by the Contractor.
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
January 1, 2013. The designated facility is:
East Valley Recycling and Transfer Facility
0. 1150 & 1250 South Tippecanoe Avenue
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Unloading Time/Truck 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 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-load 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.
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Contractor shall be responsible for disposal of residue from the processing of
City Recyclables at no charge to City.
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.
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 Disposal of City Municipal Non-Recyclable Solid Waste
City will deliver to Contractor, or will cause its franchised haulers to deliver to
Contractor, approximately one half(+/- 5%) of all Municipal Non-Recyclable
Solid Waste generated in the City each month(or portion thereof] during the Term
of this Agreement, which is collected by City or its franchised haulers and which
requires disposal in a landfill, including, but not limited to non-Recyclable Solid
Waste ("Refuse").
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3.3 Scope of Services for Organics Diversion.
City will deliver to Contractor, or will cause its franchised haulers to deliver to
Contractor, approximately one half(+/- 5%) of all Organic Materials generated in
the City each month (or portion thereof) during the Term of this Agreement, which
is collected by City or its franchised haulers. Contractor shall provide the service
of processing Organic Materials.
3.4 Price per Ton for Solid Waste Disposal.
The City shall pay Contractor the following initial per ton rate for Refuse delivered
by City or its franchised hauler to Contractor for transportation, and disposal. This
rate includes all governmental fees, taxes, surcharges, and assessments as of the
Effective Date that are currently applicable to these materials to be disposed of by
Contractor under this Agreement:
Refuse $37.75 per ton
3.5 Price per Ton for Organics Processing.
The City shall pay Contractor the following initial per ton rate for Organic
Materials delivered by City or its franchised hauler to Contractor for
transportation, Diversion and residual disposal. This rate includes all governmental
fees, taxes, surcharges, and assessments as of the Effective Date that are currently
applicable to these Organic Materials processed by Contractor under this
Agreement:
Organic Materials $37.22 per ton
3.6 Price Adjustments.
Beginning January 1, 2014 and each anniversary thereafter, the respective rates
per Ton charged to City for Refuse and Organic Materials delivered to Contractor
pursuant to this Agreement shall be increased based on changes in the Consumer
Price Index for all Urban Consumers for the Los Angeles — Riverside —Orange
County Area, as published by the US. Bureau of Labor Statistics, for the prior
twelve month period beginning September 1 and ending August 30. The
Contractor will give the City thirty days advance written notice before any such
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�. CPI increase will take effect.
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Beginning January 1, 2014 and each anniversary thereafter throughout the term of
this Agreement, the rates per�Ton, shall be further adjusted, if necessary, to account
for any change in the Average Fuel Price for diesel fuel during the preceding
twelve month period beginning September 1 and ending August 30, that is in
excess of the adjustment as applied to fuel costs resulting from the CPI adjustment
made pursuant to this Section above. The initial Base Fuel Rate will be $4.00 per
gallon. Once adjusted, the Average Fuel Price for the adjustment year shall
become the Fuel Peg for purposes of measuring changes in the next succeeding
year. The term "Average Fuel Price" as used herein shall mean the average diesel
fuel cost for California as published by the U.S. Department of Energy.
Contractor may also increase the Gate Rates at any time, to pass through any new
or increased governmental fees, taxes, surcharges, or assessments applicable to
Solid Waste processed or disposed of by Contractor under this Agreement.
Contractor shall give the City thirty days advance written notice of any increase in
City's Gate Rates based on any new or increased governmental fees, taxes,
surcharges, or assessments.
3.7 Volume Commitments and Capacity Guaran1y for Organics, Recyclables and
Solid Waste.
At the end of each calendar quarter(or portion thereof if this Agreement
becomes effective or terminates midway through a calendar quarter), the City's
compliance with its waste delivery obligations shall be assessed. In the event of
any shortfall in the City's waste deliveries in any waste category (i.e., Non-
recyclable Solid Waste, Organics or Recyclable materials) to Contractor greater
than 5% compared to the City's waste delivery commitment, the City will deliver
the shortfall tonnage for that waste category to Contractor by the end of the
following calendar quarter (or portion thereof if this Agreement is terminated
earlier) in addition to City's waste delivery obligations for each month of the
following calendar quarter.
Contractor guarantees to City that Contractor shall provide adequate disposal
capacity for the Organic Materials and the Non-Recyclable Solid Waste that City
is obligated to deliver or cause to be delivered to Contractor hereunder.
3.8 Additional Volumes.
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Should the City require Contractor to accept additional Organics, Refuse or
Recyclable Materials above and beyond the commitment amounts in this
Agreement, Contractor agrees to accept such amounts subject to the same rates and
conditions described below. Contractor shall receive such materials at
Contractor's facility at 1150 & 1250 South Tippecanoe Ave., San Bernardino, CA,
and shall transport and lawfully dispose of such Solid Waste at a permitted
disposal site selected by Contractor. Y
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3.9 Payment Terms. Contractor shall invoice City bi-weekly for the
transportation and disposal of Solid Waste delivered to Contractor for disposal 3
under this Agreement. The total invoice amount shall be the product of all Tons of a
Solid Waste delivered to Contractor during the prior month, multiplied by the o
applicable rates per Ton then in effect. The total invoice shall be due and payable
on receipt and unpaid invoices shall bear interest at the rate of 1.5% per month E
beginning 15 days after receipt by the City.
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4.0 Non-Assignment. N
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C, This agreement may not be subcontracted and shall not be transferrable, assignable
or delegable by City to any other public agency or private company without the
prior written consent of Contractor.
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5.0 New Technologies.
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In the event that new technology related to use, re-use or disposal of refuse, green N
waste or recycling is developed City may direct Contractor to modify the scope of o
services hereunder to include such new technologies and direct the delivery of
Solid Waste hereunder in accordance therewith. City direction pursuant to this
provision shall not affect the exclusive nature of this Agreement unless it relates to FE
a service that the Contractor is unable or unwilling to provide. m
In the event City directs the use of new technology, Contractor shall submit a
written proposal on providing the additional services. The proposal shall contain a E
complete description of the expanded services, including but not limited to the
following: (i) equipment to be used and staffing requirements by number and a
classification; (ii) projection of amount of new diversion tonnage expected; and
(iii) projection of annual operating costs, including documentation of and support
for key assumptions underlying projections. If City directs a change of scope and
such change causes an increase or decrease in the cost of performing the services,
an equitable adjustment in the Contractor's compensation shall be made.
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In the event Contractor is unwilling or unable to provide such new technology,
City may avail itself of the technology through the use of third parties, which
action shall not be construed to be a violation of any provision of this agreement.
6.0 Equipment.
Contractor shall furnish all labor, materials and equipment necessary to perform the
services contemplated by this Agreement.
7.0 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.
&0 Restriction on Manner of Collection.
In order to ensure City complies with the provisions of AB 939, and to accurately
account for and report the amount of Organic Materials and Solid Waste, including
Recyclable Material, collected within the City Limits and processed,recycled
and/or disposed pursuant to this Agreement, City Recyclable Material and Organic
Material shall not be commingled with any other Recyclable Material or Organic
Material until City Recyclable Material or Organic Material has been weighed
and/or accounted for in some other manner.
9.0 Pursuit and Management 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.
10.0 Warranty.
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Contractor warrants that it shall perform the services required by this Agreement a
in compli ce 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.
11.0 Non-discrimination.
In performing this Agreement, Contractor shall not engage in,nor permit its agents to
engage in,discrimination in employment ofpersons 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.
12.0 Business License.
Contractor warrants it possesses, or shall obtain,and maintain during the tern 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.
13.0 Delegation and AssiLmment.
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.
14.0 Duty to Notify City.
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Contractor acknowledges that it has a duty pursuant to this Agreement to notify the °'
CI of any charges,accusations, or lawsuits commenced or instituted by the California
Department of Resources,Recycling and Recovery(aka"CalRecycle"),the State of
California,the Attorney General,and any other similar regulatory agency. This duty to
notify the City shall extend to and include investigations by the applicable regulatory
agency prior to any formal action being taken.
15.0 Additional City Responsibilities.
15-1 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 upon reasonable request
15.2 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 upon reasonable request.
16.0. Term, Termination And Cure.
IL 16.1.Term.
The effective date ("Effective Date") of this Agreement shall be January 1, 2013.
The term of this agreement shall be an initial term of five (5) years from the
Effective Date expiring on December 31, 2017, with one additional five (5) year
renewal option by mutual consent.
The renewal option will be deemed automatically mutually exercised and approved
for the additional period of five (5) years unless either party shall give written
notice to the other party of its intent to terminate not less than 180 days prior to the
expiration of the initial term.
16.2. Default and Termination.
This agreement may be terminated at the option of the non-defaulting party
for good cause, defined as follows:
i. As to the performance of the City, (a) the failure of City to deliver
and to pay Contractor's gate rates for, all of the Recyclables,
Organics and non-Recyclable Solid Waste that City has committed
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to deliver to Contractor hereunder, or (b) the breach by City of any
other material term or provision of the agreement to be performed
by City; and
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ii. As to the performance of the Contractor, (a) the failure of
Contractor to accept and receive all Recyclables, Organics and
non-Recyclable Solid Waste (other than"Excluded Waste" as
defined below) delivered by City to Contractor pursuant to this
Agreement, or (b) the breach by Contractor of any other material
term or provision of the agreement to be performed by Contractor.
The foregoing remedy of termination is in addition to, and not in
derogation of, any other remedy a party may have for breach of
this Agreement
16.3. 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
R 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.
163.1 City shall 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.
16.3.2 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 Contractor shall not
be construed as, or constitute a waiver of, any subsequent
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default of the same or any other term, covenant and condition.
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16.3.3 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.
16.3.4 The acceptance of all or part of City's payment or performance
by Contractor 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 Contractor of a default on the
part of City shall not be construed as, or constitute a waiver
of, any subsequent default of the same or any other term,
covenant and condition.
16.4 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 and City shall pay Contractor for all Organics processed and Solid
Waste disposed of through the termination date.
16.5 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 City's reasonable request and
following 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, 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.
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17.0 Compensation for Recyclable Materials And Accounting.
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17.1 Revenue Calculation. Revenue calculation for City Recyclable Materials
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 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).
17.2 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.
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Payments to the City will include California Redemption Value applicable to
curbside Recycling programs.
17.3 Late Payments. Interest on amounts past due will be assessed at the rate
of 1.5% per month.
17.4 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.
17.5 Additional Services. Contractor shall not receive compensation for any
services provided outside the scope of services specified in this Agreement
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.
17.6 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 three (3) 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.
18.0 Time of Performance.
18.1 Commencement of Work. The professional services to be performed
pursuant to this Agreement shall commence upon the Effective Date of this
Agreement.
18.2 Excusable Delays. 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.
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19.0 Insurance.
19.1 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 b the State of
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California.
19.2. Endorsements. The comprehensive general liability and automobile liability
insurance policies shall contain or be endorsed to contain the following provisions:
(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."
19.3. Certificates of Insurance. Contractor shall provide to City certificates of
insurance showing the insurance coverages and required endorsements described above,
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in a form and content approved by City, prior to performing any services under this
Agreement.
19.4 Non-limiting. 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.
20.0 General Provisions.
20.1. Entire Agreement.ement. 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.
20.2. Representatives. The City Manager or his or her 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.
20.3. Project Managers. City designates the Public Works Director,or his or her
designee,to act as the Project Manager to work directly with Contractor in the perfmnance
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.
20.4. Notices. Any notices, documents, correspondence or other 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.
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CONTRACTOR: City of San Bernardino
Cole Burr Public Works Director
Burrtec Waste 300 North "D" Street
Industries, Inc. San Bernardino, CA 92418-0001
9890 Cherry Avenue
Fontana, CA92335
20.5. Attorneys'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.
20.6. Governing 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.
20.7. 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 the Central District of California. The aforementioned choice of
venue is intended by the parties to be mandatory and not permissive in nature.
20.8. Assignment. 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
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prior to any work being performed by the subcontractor. Assignment does not 0
include printing or other customary reimbursable expenses that may be provided
in this Agreement.
20.9. Indemnification and. Hold Harmless. Subject to 20.11 herein,
Contractor shall protect, defend, indemnify, save and hold harmless City and its
elected and appointed officials, officers, and employees from any and all claims,
liabilities, expenses, including attomey 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.
20.10. Employment 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 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.
20.11. Hazardous Substances Indemnification.
(1) Non-Recyclable Solid Waste.
With respect to Non-Recyclable Solid Waste, City shall not knowingly
deliver to Contractor any Hazardous Waste, infectious or medical waste or other
waste that Contractor is not allowed under applicable permits, laws or regulations
to transport or dispose of at the landfill selected by Contractor ("Excluded
Waste"). Contractor may from time to time notify City in writing of any
additional categories of waste that Contractor is not permitted to receive under
applicable permits, laws and regulations.
Under no circumstances will Contractor take ownership of or be responsible
for the transportation or disposal of any Excluded Waste delivered to Contractor in
loads of Non-Recyclable Solid Waste. City shall defend, indemnify and hold
harmless Contractor from all costs, losses and claims associated with the removal,
cleanup, transportation and/or disposal of any Excluded Waste delivered to
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(2) Organics Materials and Recyclable Materials.
With respect to Organic Materials and Recyclable Materials, and 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, save 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:
(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 other than excluded waste delivered by City or its
franchised hauler to Contractor.
Contractor's obligations pursuant to this Subsection (2) 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. § 9601 et seq., the Resource Conservation and
Recovery Act("RCRA"), 42 U.S.C. § 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,
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and any other Federal, State, regional or local environmental statutory or
regulatory provision; a
(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.
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(l); any "hazardous substance," as that term is defined under
California Health & Safety Code Sections 25281(D, 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.
20.12. 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,
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and employees, and all business licenses, if any are required, in connection with the
services to be performed hereunder.
20.13 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 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.
20.14. 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.
20.15. 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.
20.16. Prohibited Employment. Contractor will not employ any regular
employee of City while this Agreement is in effect.
20.17. 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.
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20.18. No Third Party Beneficiary Rights. This Agreement is entered into for a°
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 havg
any right in, under or to this Agreement.
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20.19. Headings. 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.
20.20. 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.
20.21. Amendments. Only a written amendment executed by the parties hereto or
their respective successors and assigns may amend this Agreement.
20.22. 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.
20.23. Severability. 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.
20.24. 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.
20.25. Corporate Authority. 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.
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PROFESSIONAL SERVICES AGREEMENT FOR THE
PROCESSING OF ORGANIC MATERIALS,RECYCLING MATERIALS
AND MUNICIPAL NON-RECYCLABLE SOLID WASTE BETWEEN THE
CITY OF SAN BERNARDINO AND BURRTEC WASTE INDUSTRIES,
INC. "
20.26. Prior Agreements Superseded. As of the Effective Date, this Agreement
supersedes prior agreements for the services described herein. Claims of either
party associated with any such earlier agreements are preserved without
prejudice, to the extent allowed by law.
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.
CITY OF SAN BERNARDINO, CONTRACTOR
A municipal corporation Burrtec st Indus es, Inc.
Iz I A
I
Andrea Travis-Miller, B
Acting City Manager Cole Burr
City of San Bernardino
By
George "Gigi' a,
City Clerk
APPROVED AS T FORM:
James F. P , �i A o
s � __ �
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