Contract - Harbor Compounding Pharmacy - 2017-06-06 AGREEMENT
Home Generated Pharmaceutical Waste Collections
This Agreement is entered into on June 6, 2017 by WM Curbside, LLC ("WM"), Costa Mesa
Sanitary District ("CMSD"), and Harbor Compounding Pharmacy ("Harbor") (CMSD and Harbor
collectively "Customer").
Customer agrees to utilize CMSD's, one (1)20-gallon drop-box(hereinafter"Box")for the purpose
of collecting home generated non-controlled pharmaceutical waste from the public.
The Box is located at Harbor Compounding Pharmacy, 2000 Harbor Blvd., Costa Mesa, CA
92627.
The Box is the property of Costa Mesa Sanitary District. WM is not responsible for any incidents
that occur as a result of the use and/or placement and/or installation of the Box. The sponsor,
CMSD, shall determine the rules and regulations for use of the Box by Customer, Customer's
patrons and others. WM assumes no responsibility for the CMSD's or Customer's rules or usage
of the Box, and the CMSD and Customer agree that WM has made no representations as to how
the Box should or should not be used. However, Customer shall maintain signage on or
associated with the Box stating that "only non-controlled pharmaceuticals" may be placed in the
non-controlled pharmaceuticals Box. Customer is responsible for all incidents related to the Box.
Term and Termination. The term of this Agreement ("Term") is 10 months, starting on the
effective date, unless terminated earlier, as provided herein. WM and/or the CMSD may extend
the Term on the same terms and conditions for an additional one year by giving written notice to
the other. WM, the CMSD and/or Customer may terminate this agreement, without cause, by
giving the other parties written notice 30 days prior to the end of a term. There is no early
termination fee. WM may terminate this Agreement for the CMSD's and/or Customer's breach of
this Agreement, including but not limited to non-payment of services, if after notice to the CMSD
and/or Customer that such breach is not cured within five (5) days.
Compensation. CMSD agrees to pay WM for collection and disposal of the waste as set forth
herein. WM will be compensated by the CMSD as follows: WM will per a chargestopfee of
$100.00; and WM will charge a disposal fee of$4.50 per lb of medicines collected from the Box.
Waiver of Liability. Customer waives all claims it may have against WM and any other person
or entity working for or at the direction of WM for the safekeeping or safe delivery or damage to
any property of Customer or of any customer of Customer, because of (a) any act or omission
associated with the collection of waste from the Box; (b) leaks from the Box, any casualty, or
odors on Customer's premises; or (c) any other such cause whatsoever; except for damage
caused by WM's gross negligence.
Notwithstanding anything stated in the Agreement to the contrary, Customer will not assert any
claims against WM for any federal laws associated with pharmaceutical waste collection
programs, and WM may modify the Agreement to comply with any applicable laws, or terminate
the Agreement if the services under the Agreement are prohibited or made impracticable under
applicable laws.
Indemnification. Customer shall defend, hold harmless and indemnify WM and its affiliates and
their respective directors, employees, successors, assigns, insurers, licensees, distributors,
agents, and the CMSD (the "Indemnified Party") against any claim, suit, proceeding, loss,
damage, settlement, cost, expense (including but not limited to reasonable attorneys' fees and
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expenses and costs of investigation) and liabilities ("Liabilities") involving an allegation
(regardless of whether it is false, fraudulent or groundless, or whether it alleges any negligence,
willful misconduct or culpability by Indemnified Parties) between any Indemnified Party and any
third party claim or action that arises, directly or indirectly, from the Box (the "Claims"), that are
incurred by any Indemnified Party relating to any Claim. If a portion of the Liability is caused by
the gross negligence or willful misconduct of an Indemnified Party, however, Customer is not
obligated to indemnify that Indemnified Party to the proportional extent of its Liability as
determined by a final, non-appealable order of a court having jurisdiction.
Contribution. Where Indemnification is not enforceable and where any Indemnified Party or
Customer is found liable to a third party with respect to the performance of Services, WM and
Customer each shall contribute to any judgment awarded in favor of the third party in proportion
to its comparative degree of culpability.
Claim. An Indemnified Party need not seek recovery from a third party or otherwise mitigate its
losses in order to make a claim under Indemnification. Customer shall not consent to the entry of
any judgment or enter into any settlement without WM's prior written consent.
Independent Obligation. Customer's obligations under the Indemnification section are
independent of any other obligation of Customer under this Agreement.
Assignment. WM and Customer shall not assign any part or all of this Agreement, or subcontract
or delegate any rights under this Agreement, without the prior written consent of the other party.
Any attempt to assign, subcontract or delegate in violation of this section is void in each instance,
except that WM may assign its rights to any affiliate. This Agreement will inure to the benefit of
WM and its assigns and its current and future affiliates.
Governing Law. This Agreement is governed by California law, excluding its conflicts of law
rules.
Notices. Notices hereunder shall be in writing and shall be deemed duly given upon delivery if
delivered by hand (against receipt), by facsimile (with confirmation of receipt) or by a nationally
recognized courier service (signature requested), to the undersigned at the address or facsimile
number set forth below.
If to Customer:
Costa Mesa Sanitary District
628 W. 19th St.
Costa Mesa, CA 92627
Copy to:
Harbor Compounding Pharmacy
2000 Harbor Blvd.
Costa Mesa, CA 92626
If to WM Curbside, LLC:
Paul Schlich, Sales Manager
5101 E. La Palma Ave, Ste 206
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Anaheim, CA 92807
Copy to:
WM Curbside, LLC
1001 Fannin, Suite 4000
Houston, TX 77002
Attention General Counsel
Notice is effective: (i) when delivered personally, (ii) three business days after sent by certified
mail, (iii) on the business day after sent by a nationally recognized courier service, or (iv) on the
business day after sent by facsimile with electronic confirmation to the sender. A party may
change its notice address by giving notice in accordance with this section.
Severability. If any provision of this Agreement is determined to be unenforceable, the parties
intend that this Agreement be enforced as if the unenforceable provisions were not present and
that any partially valid and enforceable provisions be enforced to the extent that they are
enforceable.
No Waiver. A partydoes not waive anyright under this Agreement byfailingto insist on
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compliance with any of the terms of this Agreement or by failing to exercise any right hereunder.
Any waivers granted hereunder are effective only if recorded in a writing signed by the party
granting such waiver.
Cumulative Rights. The rights and remedies of the parties under this Agreement are cumulative,
and either party may enforce any of its rights or remedies under this Agreement or other rights
and remedies available to it at law or in equity.
Construction. The Section headings of this Agreement are for convenience only and have no
interpretive value. In this Agreement, defined terms include the plural as well as the singular, and
references to "include" and its derivatives (including, "e.g.") mean "including but not limited to".
This Agreement may be executed in counterparts,which together will constitute one and the same
agreement.
Survival. The following provisions survive termination or expiration of this Agreement:
Compensation; Waiver of Liability; Indemnification; and Term and Termination.
Costs and Legal Fees. In the event of any legal action between the parties arising from this
Agreement, the prevailing party may recover from the other party all of its reasonable costs and
expenses, including attorneys' fees and court costs.
Limitations on Liability. Neither party is liable under any circumstances for lost
opportunities or profits, or for consequential, special, punitive or indirect damages of any
kind, even if it has been apprised of the likelihood of such damages.
Entire Agreement. This Agreement, together with all attachments, constitute the complete and
final agreement of the parties pertaining to the contents herein and supersede the parties' prior
agreements, understandings and discussions relating to the this agreement. No modification of
this Agreement is binding unless it is in writing and signed by WM, CMSD and Customer.
IN WITNESS WHEREOF, the parties have caused their respective duly authorized
representatives to execute this Agreement effective as of the Effective Date.
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