Contract - WM Curbside - 2019-12-09AGREEMENT
Home Generated Non -Controlled Pharmaceutical Waste Collections
This Agreement is entered into and effective on " " !�' "t 019 by WM Curbside, LLC j _ ,2
("WM"), and Costa Mesa Sanitary District ("CMSD").
WM shall provide CMSD with one (1) 43-gallon drop -box for the purpose of collecting home
generated non -controlled pharmaceutical waste ("Waste Materials") from the general public.
WM, itself or through its subsidiaries, affiliates or subcontractors, as approved by CMSD, shall
provide CMSD with collection, management, transportation, disposal, and treatment of Waste
Materials directly from, and generated by, the general public and patrons of CMSD, and not
including Nonconforming Waste, during the term of this agreement.
The Box has been placed at the CMSD Headquarters. WM delivered the Box to the location
address of 290 Paularino Avenue, Costa Mesa, CA 92626 inside of the building. It is the
responsibility of CMSD to affix the Box to the building if they choose to do so. The manner of
installation and location of the Box shall be within the sole discretion of CMSD.
The Box is the property of Costa Mesa Sanitary District. WIVI is not responsible for any
incidents that occur as a result of the use and/or placement and/or installation of the Box.
CMSD shall determine the rules and regulations for use of the Box by CMSD's patrons and
others. WM assumes no responsibility for the CMSD or CMSD's rules or usage of the Box, and
the CMSD agree that WM has made no representations as to how the Box should or should not
be used. However, CMSD shall maintain - signage on or associated with the Box stating that
"only non -controlled pharmaceutical" may be placed in the non -controlled pharmaceuticals Box.
CMSD is responsible for all incidents related to the Box.
CMSD will take reasonable steps so that the Waste Materials it tenders to WM will not contain
Nonconforming Waste. WM disclaims all responsibility for and assumes no liability for any
Nonconforming Waste, which it will neither handle nor accept for disposal, unless otherwise
agreed to between the parties in writing. "Nonconforming Waste" is waste that is not in
accordance with waste descriptions given by CMSD under this Agreement and/or prohibited
from being received, managed or disposed of at a transfer, storage or disposal facility used
hereunder by federal, state or local law, regulation, ordinance, permit or other legal requirement,
or is not a Waste Material.
Term and Termination. The initial term of this Agreement ("Term") is two (2) years, starting
on the effective date, unless terminated earlier, as provided herein. WM and/or the CMSD may
mutually agree to extend the Term for an additional one (1) year by giving written notice to the
other. WM and/or CMSD may terminate this agreement, without cause, by giving the other party
a written notice thirty (30) days prior to the end of a term. There is no early termination fee.
The parties may terminate this Agreement for cause with five (5) days written notice and
opportunity to cure.
Compensation. WIVI will be compensated by the CMSD as follows: WM will charge a per stop
fee $125.00; and WM will charge a disposal fee of $4.85 per pound of non -controlled
pharmaceuticals collected from the Box. The fee may be adjusted by WM to account for
increased costs due to uncontrollable circumstances, including, without limitation, changes in
local, state or federal laws or regulations, imposition of taxes, fees or surcharges and acts of
God such as floods, fires, etc. provided CMSD receives notice and agrees. Should CMSD not
agree, WM may terminate for cause. CMSD shall pay the rates in full within 30 days of the date
ofinvoice. Any CMSD invoice balance not paid within thirty (30)days of the date of invoice is
subject toelate charge, and any CKSD check returned for insufficient funds |asubject to a
Non -Sufficient Funds fee, both to the maximum extent allowed by applicable |ovv C)K8S[)
acknowledges that any late charge assessed byVVIVI|mnot tobeconsidered aminterest ondebt,
imnot apenalty, and ioareasonable charge for late payment.
Waiver of Liability. CMS[]waives all claims itmay have against VVMand any other person or
entity working for or at the direction mfVVM for the safekeeping or safe delivery or damage to
any property ofCyWGO or of any ouedorner, 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 CMSD's
pnarn|oma| or (u) any other such cause whatsoever; except for damage caused by VVK8`s gross
negligence mrfrom VVM'simproper disposal nfthe waste.
Notwithstanding anything stated in the Agreement to the contrary, CMS[) will not assert any
claims against WM for any federal laws associated with pharmaceutical waste collection
programs based on the content of the box, 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. VVyVI shall comply with all laws
pertaining to waste disposal. VVM ahm|1 maintain shipping and tracking documents for transfer of
the Waste Materials. . Such documentation shall be produced upon reasonable written request
ofC/NSD.
Indemnification. C)K48[) aho|| defend, hold harmless and |ndan7nifvVVyW and its affiliates and
their respective directors, ammp|oyeeo, successors, assigns, |naunono, Uoenseea, d|etr|butons,
agents, and the C0NS[3 (the "Indemnified Party") against any c|n|nn, suit, proceeding, /naa,
darnage, sett|ennont, cost, expense (including but not limited tmreasonable attorneys' fees and
expenses and costs of investigation) and liabilities /'^L|abUit|me'`\ involving an allegation
(regardless nfwhether it|afalse, fraudulent orgroundless, orwhether it alleges any negligence,
vv|||fu| misconduct orculpability by Indemnified Parties) between any Indemnified Party and any
third party c|o|rn or action that arises, directly or |nd|nen1|y. from the Bbx or services (the
"C\mirna'`\' that are incurred by any Indemnified PeMx relating to any <J|ainn except as herein
provided. If o portion of the Liability is caused by the gross negligence or vN}|fu| misconduct of
an Indemnified Party, however, CMSD is not obligated to indemnify that Indemnified Party to the
proportional extent of its Liability as determined by a fino|, non -appealable order of a court
having jurisdiction.
CMSD agrees to indemnify, defend and save WM harmless from and against any and all liability
(including reasonable attorney`afees) which VVK4may beresponsible for orpay out aoaresult
of bodily injuries (including deo1h), property dmrnmga' or any violation or alleged violation of |evv
tothe extent caused byNonconforming Waste.
VVM shall |ndonnn|fv, defend and save CK80Dmnd its mff|oera, agents and employees harmless
from any and all liability caused by improper diapmmm| of the waste. VVM may aoeunno that the
contents are pharmaceutical waste but shall dispose ofthat inolawful manner. VVMshall also
be responsible for its vehicle and driver and any and all accidents that may occur, whether on
CNYS[) property orotherwise.
Insurance. WMshall have broad coverage insurance as set forth in Exhibit A and shall name
the District msmn additional insured and provide the District with an endorsement of coverage
indicating such additional insured status.
2
WM Curbside, LLC
9081 Tujunga Ave.
Sun Valley, CA 91352
Attention Sr. Legal Counsel
Notice is effective: (i) when delivered personally, (H) 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.
Severabilfty. 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 party does not waive any right under this Agreement by failing to insist on
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, incidental punitive or indirect
damages arising out of the performance of this Agreement.
License Status. WM represents and warrants that it has all licenses, permits and
approvals necessary to dispose of pharmaceutical waste as described in this Agreement
and will provide proof of the same to CMSD upon request.
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 and CMSD.
Title toand liability for Nonconforming Waste shall remain with CMSD atall times. WM shall
have the right to inspect, analyze mrtest any waste delivered by CMGD.|fCM0D's Waste
yNoteha| is Nonconforming VVmete. VVIVI can, at its option, reject Nonconforming Waste and
return it to CK8S[> or require CMS[) to remove and dispose of the Nonconforming Waste at
C|MSD'aoo|e expense, CMSD shall indemnify, hold harmless and pay or reimburse WM for any
and all coata, damages and/or fines incurred as a result of or relating to CK4SD'm tender or
delivery of Nonconforming Waste or other failure to comply or conform to this Agreement,
including coots of inspection, testing and analysis.
Contribution. Where Indemnification is not enforceable and where any Indemnified Party or
C)K40[) is found liable to u third party with respect to the performance of Services, VVM and
CK8SD each shall contribute to any judgment awarded in favor of the third party in proportion to
its comparative degree ofculpability.
Claim. An Indemnified Party need not seek recovery from a third party or otherwise mitigate its
losses in order to make a o|a(nn under Indemnification. CK4S[) shall not consent bzthe entry of
any judgment or enter into any settlement without WM's prior written consent.
Independent Obligation. The parties' obligations under the Indemnification section are
independent ofany other obligation ofthe parties under this Agreement.
Assignment. WM and CMSD shall not assign any part or all of this Agreement, or subcontract
or delegate any rights under this Agnaement, without the prior written consent of the other party,
which such consent shall not be unreasonably withheld, conditioned or delayed. Any attempt to
mmsign, subcontract ordelegate }n violation of this ueubmn is void in each instance.
Governing Law. This Agreement is governed by California |mvv, excluding its conflicts of |ovv
rules. CMSD irrevocably submits to venue and exclusive personal jurisdiction in the federal and
state courts in Orange County, California for any dispute arising out ofthis Agreement, and
waives all objections tojurisdiction and venue ofsuch courts.
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.
|fioCK4SD: Costa Mesa Sanitary District
28ORaukahnoAvenue
Costa Mesa, CA 92826
Attn: NabUaGuznnan
If to WM Curbside, LLC:
VVM Curbukje,LLC
ReggladoPeatono.District Operations Manager
10633Ruohti Road,
South Gate, CA 90280
Copy to:
IN WITNESS WHEREOF, the parties have caused their respective duly authorized
representatives to execute this Agreement effective as of the effective date.
..---�osta Mesa Sanitary District, Title
Area Vice President
Larry ww1r,WV(Cu s[de,CL-C —Title
6111
HARPER & BURNS LLP