Contract - Sharps - 2020-05-01AGREEMENT
Home Generated Sharps Waste Collections
This Agreement is entered into and effective on May 1, 2020 by WM Curbside, LLC (`WM"), and
Costa Mesa Sanitary District ("CMSD").
WM shall provide Costa Mesa Sanitary District with one (1) 43-gallon drop -box for the purpose
of collecting home generated sharps 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 Costa Mesa Sanitary District. WM delivered the Box to the
location address of 290 Pau/arino, 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. WM 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
"sharps only" " may be placed in the Sharps 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. WM will be compensated by the CMSD as follows: WM will charge a per stop
fee of $125.00. 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 of invoice. Any
CMSD invoice balance not paid within thirty (30) days of the date of invoice is subject to a late
charge, and any CMSD check returned for insufficient funds is subject to a Non -Sufficient Funds
fee, both to the rnaxirnurn extent allowed by applicable |ovv. CMSD acknowledges that any late
charge aoaoamed byVVM is not to be considered as interest on debt, is not e penalty, and is o
reasonable charge for late payment.
Waiver of LiabiUity. CMSD waives all claims itmay have against WMend any other person or
entity working for or at the direction of VVM for the safekeeping or safe delivery or damage to
any property of CyWSO or of any customer, because of (a) any act or omission associated with
the collection ofwaste from the Box; (b) leaks from the Box` any ouaua|tv' or odors on CMG[>'o
premises; or (o) any other such cause whatsoever; except for damage caused by VVM'o
intentional wrongful acts, groom negligence or from VVM'a improper disposal of the waste.
Notwithstanding anything stated in the Agreement tothe 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 irnpmaoboeb|e under applicable |avva. VVM shall comply with all |avva
pertaining to waste disposal. VVM shall maintain shipping and tracking documents for transfer of
the Waste Materials. . Such documentation shall be produced upon reasonable written request
of CMSD.
Indemnification. CM8O oho]| defend, hold hann|eea and indemnif»VVM and its affiliates and
their respective directors, ornp|oyees, successors, assigns, insurers, |ioenaeeo, distributors, and
agents, (the "Indemnified Partieo,,) against any claim, suit. proceeding, loss, damage,
settlement, cost, expense (including but not limited to reasonable attorneys' fees and expenses
and ooeYo of investigation) and liabilities ("Liabilities") involving an allegation (regardless of
whether it is fu|me, fraudulent or ground|ems, or whether it alleges any neg|igonce, willful
misconduct or culpability by Indemnified Parties) between any Indemnified Party and any third
poMv claim or action that arioeo, directly or indirectly, from the Box or services (the "Claims"),
that are incurred by any Indemnified Party relating to any Claim except as herein provided. If
portion of the Liability is caused by the gross negligence or willful misconduct of an Indemnified
Party, however, CMBD 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
CMSDagrees toindemnify, defend and save WIVIharm|ess from and against any and all liability
(including reasonable attomey'm fees) which WM may be responsible for or pay out as a result
of bodily injuries (including death), property darnoge, orany violation or alleged violation of |ovv
to the extent caused by Nonconforming Waste.
VVMmheU indemnify, defend and save CMS[} and its officers, agents and employees hamn|eom
from any and all liability. caused by improper disposal of the vvaata, except for claims involving
Nonconforming Waste. VVM may assume that the contents are sharps waste but shall dispose
of that in a \ovvu| manner. VVM shall also be responsible for its vehicle and driver and any and
all accidents that may occur, whether on CMSD property or otherwise.
Insurance. VVK4 shall have brood coverage insurance as set forth in Exhibit Aand aheJ| name
the District oman additional insured and provide the District with an endorsement ofcoverage
indicating such additional insured status.
Title to and liability for Nonconforming Waste shall remain with CMSD at all times. WM shall
have the right to inspect, analyze or test any waste delivered by CMSD. If CMSD's Waste
Material is Nonconforming Waste, WM can, at its option, reject Nonconforming Waste and
return it to CMSD or require CMSD to remove and dispose of the Nonconforming Waste at
CMSD's sole expense. CMSD shall indemnify, hold harmless and pay or reimburse WM for any
and all costs, damages and/or fines incurred as a result of or relating to CMSD's tender or
delivery of Nonconforming Waste or other failure to comply or conform to this Agreement,
including costs of inspection, testing and analysis.
Contribution. Where Indemnification is not enforceable and where any Indemnified Party or
CMSD is found liable to a third party with respect to the performance of Services, WM and
CMSD 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. Neither party shall consent to the entry
of any judgment or enter into any settlement without the other party's prior written consent.
Independent Obligation. The parties' obligations under the Indemnification section are
independent of any other obligation of the 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 Agreement, without the prior written consent of the other party,
which such consent shall not be unreasonably withheld, conditioned or delayed. Any attempt to
assign, subcontract or delegate in violation of this section is void in each instance.
Governing Law. This Agreement is governed by California law, excluding its conflicts of law
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 of this Agreement, and
waives all objections to jurisdiction and venue of such 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.
If to CMSD: Costa Mesa Sanitary District
290 Paularino Avenue
Costa Mesa, CA 92626
Attn: Nabila Guzman
If to WM Curbside, LLC:
WM Curbside, LLC
Regalado Pestano, District Operations Manager
10633 Ruchti Road,
South Gate, CA 90280
Copy to:
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WM Curbside, LLC
9081 Tujunga Ave.
Sun Valley, CA 91352
Attention Sr. Legal 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 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.
IN WITNESS WHEREOF, the parties have caused their respective duly authorized
representatives to execute this Agreement effective as of the effective date.
Costa Mesa Sanitary Dist?te+------"
WM Curbside, LLC
APPROVED AS TO FORM:
HARPER & BURNS LLP
General Manager
Title
Area Vice President
Title
Exhibit A
Insurances
Minimum Scope of Insurance
Coverage shall be at least as broad as the latest version of the following: (1) General Liability: Insurance
Services Office Commercial General Liability coverage (occurrence form CG 0001): (2) Automobile
Liability: Insurance Services Office Business Auto Coverage form number CA 0001, code 1 (any auto); and
(3) Workers' Compensation and Employer's Liability: Workers' Compensation insurance as required by
the State of California and Employer's Liability Insurance.
Minimum Limits of Insurance
Contractor shall maintain limits no less than:
General Liability
$1,000,000 per occurrence for bodily injury, personal injury and property damage. If Commercial
General Liability Insurance or other form with general aggregate limit is used, either the general
aggregate limit shall apply separately to this Agreement/location or the general aggregate limit shall be
twice the required occurrence limit.
Automobile Liability
$1,000,000 per accident for bodily injury and property damage
Workers' Compensation and Employer's Liability
Workers' Compensation limits as required by the Labor Code of the State of California Employer's
Liability limits of $1,000,000 per accident for bodily injury or disease.
Insurance Endorsements
The insurance policies shall contain the following provisions, or Consultant shall provide endorsements
on forms supplied or approved by the Costa Mesa Sanitary District to add the following provisions to the
insurance policies:
(A) General Liability. The general liability policy shall be endorsed to state that: (1) the Costa Mesa
Sanitary District, its directors, officials, officers, employees, agents and volunteers shall be covered as
additional Insured with respect to the Work or operations performed by or on behalf of the Consultant,
including materials, parts or equipment furnished in connection with such work; and (2) the insurance
coverage shall be primary insurance as respects the Costa Mesa Sanitary District, its directors, officials,
officers, employees, agents and volunteers, or if excess, shall stand in an unbroken chain of coverage
excess of the Consultant's scheduled underlying coverage. Any insurance or self-insurance maintained
by the Costa Mesa Sanitary District, its directors, officials, officers, employees, agents and volunteers
shall be excess of the Consultant's insurance and shall not be called upon to contribute with it in any
way.
(B) Workers' Compensation and Employers Liability Coverage. The insurer shall agree to waive all
rights of subrogation against the Costa Mesa Sanitary District, its directors, officials, officers, employees,
agents and volunteers for losses paid under the terms of the insurance policy which arise from work
performed by the Consultant.
(C) All Coverage. Each insurance policy required by this Agreement shall be endorsed to state
that: (A) coverage shall not be suspended, voided, reduced or canceled except after thirty (30) days (ten
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(10) days for nonpayment of premium) prior written notice has been given to the Costa Mesa Sanitary
District; and (B) any failure to comply with reporting or other provisions of the policies, including
breaches or warranties, shall not affect coverage provided to the Costa Mesa Sanitary District, its
directors, official, officers, employees, agents and volunteers.
Acceptability of Insurers
Insurance is to be placed with insurers with a current A.M. Best's rating no less than A-:VIII, licensed to
do business in California, and satisfactory to the Costa Mesa Sanitary District.
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