HomeMy WebLinkAboutVeolia ES Technical Solutions LLC; 2010-08-17; TRAN1030AGREEMENT FOR REMOVAL OF UNIVERSAL AND HAZARDOUS WASTE FROM THE CITY OF
CARLSBAD
(VEOLIA ES TECHNICAL SOLUTIONS, LLC)
PEM506
THIS AGREEMENT is made and entered into as of the /7-#v day of
20 fo, by and between the CITY OF CARLSBAD, a municipal corporation,
("City"), arra Veolia ES Technical Solutions, LLC, a limited liability corporation, ("Contractor").
RECITALS
A. City requires the professional services of a universal and hazardous waste removal
Contractor that is experienced in universal and hazardous waste removal and associated training.
B. Contractor has the necessary experience in providing professional services and advice
related to universal and hazardous waste removal.
C. The Contractor agrees to furnish all tools, equipment, apparatus, facilities, labor, services,
and materials necessary to remove and dispose of materials as described in this agreement and its
attachments.
D. The Contractor agrees that it assumes all risk for loss of or damage to tools or equipment
owned or rented by the Contractor.
E. Selection of Contractor is expected to achieve the desired results in an expedited
fashion.
F. The Contractor agrees that all work performed by the Contractor is subject to the inspection
and approval of the City acting through its Director, Property and Environmental Management, or
designated representative.
G. Contractor has submitted a proposal to City and has affirmed its willingness and ability
to perform such work.
H. The Contractor, prior to commencing work under this agreement, shall provide to the City a
listing of all materials that will be used, and have this list accepted and approved. With this listing will
be a legible copy of the Material Safety Data Sheet (MSDS) for each product that requires a MSDS.
When the Contractor makes a change to the list of materials, the Contractor must submit an updated
list to the City with a revised MSDS. When a MSDS is revised, a copy of the revised sheet must also
be submitted.
I. The Contractor shall provide the City with appropriate hazardous waste manifests for
materials that are removed and show chain of custody to the final destination.
J. The contractor shall comply with all Federal, State, County and City statutes,
ordinances and regulations.
NOW, THEREFORE, in consideration of these recitals and the mutual covenants contained
herein, City and Contractor agree as follows:
1. SCOPE OF WORK
City retains Contractor to perform, and Contractor agrees to render, those services ("Services") that
are defined in attached Exhibit "A", which is incorporated by this reference in accordance with this
Agreement's terms and conditions.
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2. STANDARD OF PERFORMANCE
While performing the Services, Contractor will exercise the reasonable professional care and skill
customarily exercised by reputable members of Contractor's profession practicing in the Metropolitan
Southern California Area, and will use reasonable diligence and best judgment while exercising its
professional skill and expertise.
3. TERM
The term of this Agreement will be effective for a period of two years from the date first above written.
The City Manager may amend the Agreement to extend it for three additional one (1) year periods, or
parts thereof. Extensions will be based upon a satisfactory review of Contractor's performance, City
needs, and appropriation of funds by the City Council. The parties will prepare a written amendment
indicating the effective date and length of the extended Agreement.
4. TIME IS OF THE ESSENCE
Time is of the essence for each and every provision of this Agreement.
5. COMPENSATION
The total fee payable for the Services to be performed during the initial Agreement term will be not to
exceed fifty thousand dollars ($50,000). No other compensation for the Services will be allowed
except for items covered by subsequent amendments to this Agreement. The City reserves the right
to withhold a ten percent (10%) retention until City has accepted the work and/or Services specified in
Exhibit "A".
6. STATUS OF CONTRACTOR
Contractor will perform the Services in Contractor's own way as an independent contractor and in
pursuit of Contractor's independent calling, and not as an employee of City. Contractor will be under
control of City only as to the result to be accomplished, but will consult with City as necessary. The
persons used by Contractor to provide services under this Agreement will not be considered
employees of City for any purposes.
The payment made to Contractor pursuant to the Agreement will be the full and complete
compensation to which Contractor is entitled. City will not make any federal or state tax withholdings
on behalf of Contractor or its agents, employees or subcontractors. City will not be required to pay
any workers' compensation insurance or unemployment contributions on behalf of Contractor or its
employees or subcontractors. Contractor agrees to indemnify City within thirty (30) days for any tax,
retirement contribution, social security, overtime payment, unemployment payment or workers'
compensation payment which City may be required to make on behalf of Contractor or any agent,
employee, or subcontractor of Contractor for work done under this Agreement. At the City's election,
City may deduct the indemnification amount from any balance owing to Contractor.
7. SUBCONTRACTING
Contractor will not subcontract any portion of the Services without prior written approval of City. If
Contractor subcontracts any of the Services, Contractor will be fully responsible to City for the acts
and omissions of Contractor's subcontractor and of the persons either directly or indirectly employed
by the subcontractor, as Contractor is for the acts and omissions of persons directly employed by
Contractor. Nothing contained in this Agreement will create any contractual relationship between any
subcontractor of Contractor and City. Contractor will be responsible for payment of subcontractors.
Contractor will bind every subcontractor and every subcontractor of a subcontractor by the terms of
this Agreement applicable to Contractor's work unless specifically noted to the contrary in the
subcontract and approved in writing by City.
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8. OTHER CONTRACTORS
The City reserves the right to employ other Contractors in connection with the Services.
9- INDEMNIFICATION
Contractor agrees to indemnify and hold harmless the City and its officers, officials, employees and
volunteers from and against all claims, damages, losses and expenses including attorneys fees
arising out of the performance of the work described herein caused in whole or in part by any act,
error or omission of the Contractor, any subcontractor, anyone directly or indirectly employed by any
of them or anyone for whose acts any of them may be liable. Contractor's obligation to indemnify the
City shall not extend to any loss or damage of any kind or nature caused by the City or anyone for
whom the City may be liable.
The parties expressly agree that any payment, attorney's fee, costs or expense City incurs or makes
to or on behalf of an injured employee under the City's self-administered workers' compensation is
included as a loss, expense or cost for the purposes of this section, and that this section will survive
the expiration or early termination of this Agreement.
10. INSURANCE
Contractor will obtain and maintain for the duration of the Agreement and any and all amendments,
insurance against claims for injuries to persons or damage to property which may arise out of or in
connection with performance of the services by Contractor or Contractor's agents, representatives,
employees or subcontractors. The insurance will be obtained from an insurance carrier admitted and
authorized to do business in the State of California. The insurance carrier is required to have a
current Best's Key Rating of not less than "A-:V". If pollution and/or asbestos pollution and/or errors
and omissions coverage are not available from an admitted insurer, the coverage may be written by a
nonadmitted insurance company. A nonadmitted company should have an A.M. Best's rating of A:X
or higher.
10.1 Coverages and Limits
Contractor will maintain the types of coverages and minimum limits indicated below, unless City
Attorney or City Manager approves a lower amount. These minimum amounts of coverage will not
constitute any limitations or cap on Contractor's indemnification obligations under this Agreement.
City, its officers, agents and employees make no representation that the limits of the insurance
specified to be carried by Contractor pursuant to this Agreement are adequate to protect Contractor.
If Contractor believes that any required insurance coverage is inadequate, Contractor will obtain such
additional insurance coverage, as Contractor deems adequate, at Contractor's sole expense.
10.1.1 Commercial General Liability Insurance $1.000.000 combined single-limit per
occurrence for bodily injury, personal injury and property damage. If the submitted policies contain
aggregate limits, general aggregate limits will apply separately to the work under this Agreement or
the general aggregate will be twice the required per occurrence limit.
10.1.2 Automobile Liability (if the use of an automobile is involved for Contractor's work for
City). $1,000,000 combined single-limit per accident for bodily injury and property damage.
10.1.3 Workers' Compensation and Employer's Liability Workers' Compensation limits as
required by the California Labor Code and Employer's Liability limits of $1,000,000 per accident for
bodily injury. Workers' Compensation and Employer's Liability insurance will not be required if
Contractor has no employees and provides, to City's satisfaction, a declaration stating this.
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10.1.4 Professional Liability: Pollution and/or Asbestos Pollution Liability and/or Errors and
Omissions with limits of not less thank $1,000,000 each occurrence/$2,000,000 policy aggregate. If
Pollution and/or Asbestos Pollution Liability and/or Errors & Omissions coverages are written on a
claims-made form:
1. The "Retro Date" must be shown, and must be before the date of the contract or the beginning of
contract work.
2. Insurance must be maintained and evidence of insurance must be provided for at least five (5)
years after completion of the contract work.
3. If coverage is canceled or non-renewed, and not replaced with another claims-made policy form
with a "retro date" prior to the contract effective date, the Contractor must purchase "extended
reporting" coverage for a minimum of five (5) years after completion of the work.
10.2. Additional Provisions. Contractor will ensure that the policies of insurance required under this
Agreement contain, or are endorsed to contain, the following provisions:
10.2.1 The City will be named as an additional insured on the General Liability policy.
10.2.2 The Pollution and/or the Asbestos exclusion in the automobile liability policy must
be deleted and the Motor Carrier Act endorsement (MCS-90), TL 1005, TL 1007
and/or other endorsements required by federal or state authorities must be
added.
10.2.3 This insurance will be in force during the life of the Agreement and any
extensions of it and will not be canceled without thirty (30) days prior written notice to City sent by
certified mail pursuant to the Notice provisions of this Agreement.
10.3 Providing Certificates of Insurance and Endorsements. Prior to City's execution of this
Agreement, Contractor will furnish certificates of insurance and endorsements to City.
10.4 Failure to Maintain Coverage. If Contractor fails to maintain any of these insurance coverages,
then City will have the option to declare Contractor in breach, or may purchase replacement
insurance or pay the premiums that are due on existing policies in order to maintain the required
coverages. Contractor is responsible for any payments made by City to obtain or maintain insurance
and City may collect these payments from Contractor or deduct the amount paid from any sums due
Contractor under this Agreement.
10.5 Submission of Insurance Policies. City reserves the right to require, at anytime, complete and
certified copies of any or all required insurance policies and endorsements.
11. BUSINESS LICENSE
Contractor will obtain and maintain a City of Carlsbad Business License for the term of the
Agreement, as may be amended from time-to-time.
12. ACCOUNTING RECORDS
Contractor will maintain complete and accurate records with respect to costs incurred under this
Agreement. All records will be clearly identifiable. Contractor will allow a representative of City during
normal business hours to examine, audit, and make transcripts or copies of records and any other
documents created pursuant to this Agreement. Contractor will allow inspection of all work, data,
documents, proceedings, and activities related to the Agreement for a period of three (3) years from
the date of final payment under this Agreement.
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13. OWNERSHIP OF DOCUMENTS
All work product produced by Contractor or its agents, employees, and subcontractors pursuant to
this Agreement is the property of City. In the event this Agreement is terminated, all work product
produced by Contractor or its agents, employees and subcontractors pursuant to this Agreement will
be delivered at once to City. Contractor will have the right to make one (1) copy of the work product
for Contractor's records.
14. COPYRIGHTS
Contractor agrees that all copyrights that arise from the services will be vested in City and Contractor
relinquishes all claims to the copyrights in favor of City.
15. NOTICES
The name of the persons who are authorized to give written notices or to receive written notice on
behalf of City and on behalf of Contractor under this Agreement.
For City: For Contractor:
Name John McKelvey Name Alex Lontayo
Title Management Analyst Title Account Manager
Department Property and Environmental Address 9530 Candida Street
Management San Diego CA 92126
City of Carlsbad Phone No. 619-384-1167
Address 405 Oak Avenue
Carlsbad CA 92008
Phone No. (760) 434-2992
Each party will notify the other immediately of any changes of address that would
require any notice or delivery to be directed to another address.
16. CONFLICT OF INTEREST
City will evaluate Contractor's duties pursuant to this Agreement to determine whether
disclosure under the Political Reform Act and City's Conflict of Interest Code is required
of Contractor or any of Contractor's employees, agents, or subcontractors. Should it be
determined that disclosure is required, Contractor or Contractor's affected employees,
agents, or subcontractors will complete and file with the City Clerk those schedules
specified by City and contained in the Statement of Economic Interests Form 700.
Contractor, for Contractor and on behalf of Contractor's agents, employees,
subcontractors and consultants warrants that by execution of this Agreement, that they
have no interest, present or contemplated, in the projects affected by this Agreement.
Contractor further warrants that neither Contractor, nor Contractor's agents, employees,
subcontractors and consultants have any ancillary real property, business interests or
income that will be affected by this Agreement or, alternatively, that Contractor will file
with the City an affidavit disclosing this interest.
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17. GENERAL COMPLIANCE WITH LAWS
Contractor will keep fully informed of federal, state and local laws and ordinances and
regulations which in any manner affect those employed by Contractor, or in any way
affect the performance of the Services by Contractor. Contractor will at all times observe
and comply with these laws, ordinances, and regulations and will be responsible for the
compliance of Contractor's services with all applicable laws, ordinances and regulations.
Contractor will be aware of the requirements of the Immigration Reform and Control Act
of 1986 and will comply with those requirements, including, but not limited to, verifying
the eligibility for employment of all agents, employees, subcontractors and consultants
that the services required by this Agreement.
18. DISCRIMINATION AND HARASSMENT PROHIBITED
Contractor will comply with all applicable local, state and federal laws and regulations
prohibiting discrimination and harassment.
19. DISPUTE RESOLUTION
If a dispute should arise regarding the performance of the Services the following
procedure will be used to resolve any questions of fact or interpretation not otherwise
settled by agreement between the parties. Representatives of Contractor or City will
reduce such questions, and their respective views, to writing. A copy of such
documented dispute will be forwarded to both parties involved along with recommended
methods of resolution, which would be of benefit to both parties. The representative
receiving the letter will reply to the letter along with a recommended method of
resolution within ten (10) business days. If the resolution thus obtained is unsatisfactory
to the aggrieved party, a letter outlining the disputes will be forwarded to the City
Manager. The City Manager will consider the facts and solutions recommended by each
party and may then opt to direct a solution to the problem. In such cases, the action of
the City Manager will be binding upon the parties involved, although nothing in this
procedure will prohibit the parties from seeking remedies available to them at law.
20. TERMINATION
In the event of the Contractor's failure to prosecute, deliver, or perform the Services,
City may terminate this Agreement for nonperformance by notifying Contractor by
certified mail of the termination. If City decides to abandon or indefinitely postpone the
work or services contemplated by this Agreement, City may terminate this Agreement
upon written notice to Contractor. Upon notification of termination, Contractor has five
(5) business days to deliver any documents owned by City and all work in progress to
City address contained in this Agreement. City will make a determination of fact based
upon the work product delivered to City and of the percentage of work that Contractor
has performed which is usable and of worth to City in having the Agreement completed.
Based upon that finding City will determine the final payment of the Agreement.
Either party upon tendering thirty (30) days written notice to the other party may
terminate this Agreement. In this event and upon request of City, Contractor will
assemble the work product and put it in order for proper filing and closing and deliver it
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to City. Contractor will be paid for work performed to the termination date; however, the
total will not exceed the lump sum fee payable under this Agreement. City will make the
final determination as to the portions of tasks completed and the compensation to be
made.
21. COVENANTS AGAINST CONTINGENT FEES
Contractor warrants that Contractor has not employed or retained any company or
person, other than a bona fide employee working for Contractor, to solicit or secure this
Agreement, and that Contractor has not paid or agreed to pay any company or person,
other than a bona fide employee, any fee, commission, percentage, brokerage fee, gift,
or any other consideration contingent upon, or resulting from, the award or making of
this Agreement. For breach or violation of this warranty, City will have the right to annul
this Agreement without liability, or, in its discretion, to deduct from the Agreement price
or consideration, or otherwise recover, the full amount of the fee, commission,
percentage, brokerage fees, gift, or contingent fee.
22. CLAIMS AND LAWSUITS
By signing this Agreement, Contractor agrees that any Agreement claim submitted to
City must be asserted as part of the Agreement process as set forth in this Agreement
and not in anticipation of litigation or in conjunction with litigation. Contractor
acknowledges that if a false claim is submitted to City, it may be considered fraud and
Contractor may be subject to criminal prosecution. Contractor acknowledges that
California Government Code sections 12650 et seq.. the False Claims Act applies to
this Agreement and, provides for civil penalties where a person knowingly submits a
false claim to a public entity. These provisions include false claims made with deliberate
ignorance of the false information or in reckless disregard of the truth or falsity of
information. If City seeks to recover penalties pursuant to the False Claims Act, it is
entitled to recover its litigation costs, including attorney's fees. Contractor acknowledges
that the filing of a false claim may subject Contractor to an administrative debarment
proceeding as the result of which Contractor may be prevented to act as a Contractor
on any public work or improvement for a period of up to five (5) years. Contractor
acknowledges debarment by another jurisdiction is grounds for City to terminate this
Agreement.
23. JURISDICTIONS AND VENUE
Any action at law or in equity brought by either of the parties for the purpose of
enforcing a right or rights provided for by this Agreement will be tried in a court of
competent jurisdiction in the County of San Diego, State of California, and the parties
waive all provisions of law providing for a change of venue in these proceedings to any
other county.
24. SUCCESSORS AND ASSIGNS
It is mutually understood and agreed that this Agreement will be binding upon City and
Contractor and their respective successors. Neither this Agreement or any part of it nor
any monies due or to become due under it may be assigned by Contractor without the
prior consent of City, which shall not be unreasonably withheld.
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25. COMPOSITION OF WASTE
If CITY'S waste materials do not conform to the descriptions and specifications in the
corresponding Profile Sheet, CONTRACTOR and CITY shall, in good faith, attempt to
amend the Profile Sheet and any other pertinent documents and/or correct any
improper containerization, marking or labeling to enable CONTRACTOR to accept such
non-conforming waste materials at a Facility. If the parties cannot, within a reasonable
time after CONTRACTOR notifies CITY the waste materials are non-conforming,
resolve the same as set forth above, CITY shall make prompt arrangements for the
removal of such non-conforming waste materials from the Facility at which they are
located to another lawful place of storage or disposal. CITY agrees to pay
CONTRACTOR its reasonable expenses and charges incurred with respect to CITY'S'
non-conforming waste materials.
CONTRACTOR represents and warrants to CITY that: a. CONTRACTOR is engaged
in the business of performing Services with respect to waste materials and has
developed the requisite expertise to perform the Services agreed to by CITY and
CONTRACTOR hereunder; b. all CONTRACTOR vehicles and each Facility utilized to
perform Services hereunder shall have all permits, licenses, certificates or approvals
required under applicable laws and regulations for such Services; and c.
CONTRACTOR will perform Services for CITY in a safe and workmanlike manner, and
in compliance with all statutes, ordinances, laws, orders, rules and regulations
applicable to the Services.
26. CITY'S WARRANTIES
CITY represents and warrants to CONTRACTOR that: a. the description of and
specifications pertaining to its waste materials in the Profile Sheet is and at all times will
be true and correct in all material respects, and waste materials tendered to
CONTRACTOR will at all times, including, without limitation, at the time of recertification
of the waste materials, conform to the description and specifications contained in the
Profile Sheet; b. CITY has made available all information it has regarding the waste
materials, and if CITY receives information that the waste materials described in a
Profile Sheet present, or may present, a hazard or risk to persons or the environment
not reasonably disclosed in the Profile Sheet, CITY will promptly report such information
to CONTRACTOR; c. CITY has selected the packaging for the waste materials CITY
will ship and CITY warrants that such packaging (i) is suitable for the wastes contained
therein, (ii) will not leak or spill contents under normal conditions of transport (including
loading and unloading) and (iii) meets all legally applicable regulatory standards for
shipping such wastes; d. if CITY is not the Generator of the waste materials (as
defined in 40 CFR 260.10), CITY has all necessary authority to enter into this
Agreement with respect to the waste materials; e. CITY is under no legal restraint
which prohibits the transfer of possession of such waste materials to CONTRACTOR; f.
CITY shall comply with all applicable statutes, ordinances, laws, orders, rules and
regulations, and shall provide CONTRACTOR a safe work environment for Services
performed on any premises owned or controlled by CITY; and g. if CONTRACTOR
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requests that work areas be secured, CITY will be solely responsible for securing such
work areas and for preventing anyone other than CONTRACTOR personnel from
entering the designated work areas.
27. TRANSFER OF TITLE
CONTRACTOR shall take title to CITY'S waste materials which conform to the
descriptions and specifications stated in the Profile Sheet upon completion of loading
into CONTRACTOR'S transportation vehicles, or if transported by CITY, upon
acceptance at the Facility.
28. ENTIRE AGREEMENT
This Agreement, together with any other written document referred to or contemplated
by it, along with the purchase order for this Agreement and its provisions, embody the
entire Agreement and understanding between the parties relating to the subject matter
of it. In case of conflict, the terms of the Agreement supersede the purchase order.
Neither this Agreement nor any of its provisions may be amended, modified, waived or
discharged except in a writing signed by both parties.
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29. AUTHORITY
The individuals executing this Agreement and the instruments referenced in it on behalf
of Contractor each represent and warrant that they have the legal power, right and
actual authority to bind Contractor to the terms and conditions of this Agreement.
CITY OF CARLSBAD, a municipal
corporation of the State of California
By: / (J IA>—'(IltC^y
/iSSn City Manager-or Mayor
(print name/title)ATTEST:
(e-mail address)
*By:
(sign here)
•4(print name/title
(e-mail address)
If required by City, proper notarial acknowledgment of execution by eibjjts
must be attached. If a Corporation. Agreement must be signed by one ''
officer from each of the following two groups.
"Group A.
Chairman,
President, or
Vice-President
**Group B.
Secretary,
Assistant Secretary,
CFO or Assistant Treasurer
Otherwise, the corporation must attach a resolution certified by the secretary or
assistant secretary under corporate seal empowering the officers) signing to bind the
corporation.
APPROVED AS TO FORM:
RONALD R. BALL, City Attorney
Bv:S
Deputy City Attorney
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0VGOLIA
ENVIRONMENTAL SERVICES
TECHNICAL SOLUTIONS
NORTH AMERICA
NOTARY STATEMENT
To: City of Carlsbad
Re: Contract Award
PEM 506-Removal of Universal and Hazardous Waste from the City of
Carlsbad
On this day, personally appeared before me
and l^fr toffy-r (o . \jJ 1 (L^Z-i <L r^J to me known to be the person(s)
described in and who executed the within and foregoing instrument, and
acknowledged that he/she signed the same as his/her voluntary act and deed, for
the uses and purposes therein mentioned.
Witness my hand and official seal hereto affixed
this J2*- day of'j If r\IL~ . 201 0.
Notary Public in and for the State of Illinois.
My commission expires AT- if. f \ .
VICTORIA SSHIMKUS
°FJ:!C!AL J MY COMMISSION EXPIRES
,2014
Veolia K Technical Solutions, L.LC.
700 East Butterfield Road, Suite 201, Lombard, IL 60148
tel: 630 2181500 - fax: 630 268 8973
www.VeoliaES.com
EXHIBIT "A"
PEM506
SCOPE OF SERVICES
PURPOSE
This bid is for the removal of any and every hazardous waste generated by or
received at corporate yards for the Fleet Maintenance, Parks, Streets and
Facilities operations for the City of Carlsbad. The City of Carlsbad will require
that a transporter licensed by the applicable Federal, State, County and City
statutes, ordinances and regulations report to a designated site in the case of
emergency to remove unknown hazardous wastes. This contract will be bid
based upon an on-call status with an estimated number of frequency. All prices
will include the contractor supplying all necessary packing materials to include
laboratory materials, labels and placards required for safe storage and
transportation of universal and hazardous waste. Pricing shall also include all
reporting to Local, State and Federal agencies related to materials disposed off
under this contract. Contractor shall provide to the City, no later than the 10th
working day of January each year, summary data, broken down by month, for the
preceding calendar year, to enable the City to file the federal Biennial Hazardous
Waste Report (BR) to the State of California Department of Toxic Substances
Control.
POLICY
It is the policy of the City of Carlsbad to be in compliance with all Federal,
County, State and City statutes regarding the removal and storage of hazardous
waste.
COSTS
Contractor will be paid based on actual Universal and Hazardous Waste
Materials collected at City Facilities and any training provided to City Staff
based on per unit costs as outlined in Contractor's proposal dated March
23, 2010, incorporated herein as Exhibit "B".
Total Cost of Universal and Hazardous Waste collections and any
provided training shall not exceed $35,000 per agreement year.
Contractor may provide emergency response services under this
agreement, based on a per incident pricing, if requested by City. The total
value of emergency response services shall not exceed $15,000 per
agreement year.
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