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<br />© Waste Management (Form Update: 07-2019) Page 2 of 2 ISA City of Elk River 1.15.2020July 12, 2019
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<br />any negligent act, negligent omission or willful misconduct of the Company or its employees, which
<br />occurs (1) during the collection or transportation of Customer’s Industrial Waste by Company, or (2) as
<br />a result of the disposal of Customer’s Industrial Waste, after the date of this Agr eement, in a facility
<br />owned by a subsidiary or affiliate of the Company provided that the Company’s indemnification
<br />obligations will not apply to occurrences involving Nonconforming Waste.
<br />Customer agrees to indemnify, defend and save the Company harmless from and against any and all
<br />liability (including reasonable attorneys’ fees) which the Company may be responsible for or pay out as
<br />a result of bodily injuries (including death), property damage, or any violation or alleged violation of law
<br />to the extent caused by Customer’s breach of this Agreement or by any negligent act, negligent omission
<br />or willful misconduct of the Customer or its employees, agents or contractors in the performance of this
<br />Agreement or Customer’s use, operation or possession of any equipment furnished by the Company.
<br />Neither party shall be liable to the other for consequential, incidental or punitive damages arising out of
<br />the performance of this Agreement except for third party claims related to violations of law.
<br />10. UNCONTROLLABLE CIRCUMSTANCES. Except for the obligation to make payments
<br />hereunder, neither party shall be in default for its failure to perform or delay in performance caused by
<br />events beyond its reasonable control, including, but not limited to, strikes, riots, imposition of laws or
<br />governmental orders, fires, acts of God, and inability to obtain equipment, permit changes and
<br />regulations, restrictions (including land use) therein, and the affected party shall be excused from
<br />performance during the occurrence of such events.
<br />11. ASSIGNMENT & SUBCONTRACTING. This Agreement shall be binding on and shall inure to
<br />the benefit of the parties and their respective successors and assigns. Customer acknowledges and
<br />agrees that the Company may utilize unaffiliated subcontractors that are not affiliates of Company to
<br />provide the Services to Customer. Customer may not broker the disposal of Solid Waste through third
<br />parties under this Agreement without Company’s express written consent.
<br />12. ENTIRE AGREEMENT. This Agreement and its exhibits and attachments represent the entire
<br />understanding and agreement between the parties relating to the Services and supersedes any and all
<br />prior agreements, whether written or oral, between the parties regarding the same; provided that, the
<br />terms of any national service agreement or lease agreement for compactors or specialty equipment
<br />between the parties shall govern over any inconsistent terms herein.
<br />13. TERMINATION; LIQUIDATED DAMAGES. Company or Customer may immediately terminate
<br />this Agreement in the event of the other’s breach of any term or provision of this Agreement, including
<br />failure to pay on a timely basis. Notice of termination shall be in writing and deemed given when
<br />delivered in person or by certified mail, postage prepaid, return receipt requested. In the event Customer
<br />terminates this Agreement prior to the expiration of the Initial Term (“Term”) for any reason other than
<br />Company’s default, or in the event Company terminates this Agreement for Customer's default,
<br />Customer shall pay the following liquidated damages in addition to the Company's legal fees, if any: (a)
<br />if the remaining Term (including any applicable Renewal Term) under this Agreement is six (6) or more
<br />months, Customer shall pay the average of its six (6) most recent monthly Charges (or, if the Effective
<br />Date is within six (6) months of Company’s last invoice date, the average of all monthly Charges)
<br />multiplied by six (6); or (b) if the remaining Term under this Agreement is less than six (6) months,
<br />Customer shall pay the average of its six (6) most recent monthly Charges multiplied by the number of
<br />months remaining in the Term. Customer shall pay liquidated damages of $100 for every Customer
<br />waste tire that is found at the disposal facility. Customer acknowledges that the actual damage to
<br />Company in the event of termination is impractical or extremely difficult to fix or prove, and the foregoing
<br />liquidated damages amount is reasonable and commensurate with the anticipated loss to Compa ny
<br />resulting from such termination and is an agreed upon charge and is not imposed as a penalty.
<br />Collection of liquidated damages by Company shall be in addition to any rights or remedies available
<br />to Company under this Agreement or at law. In addition to and not in limitation of the foregoing, either
<br />party to this Agreement shall be entitled to recover all losses, damages and costs, including attorneys’
<br />fees and costs, resulting from the other party’s breach of any other provision of this Agreement in
<br />addition to all other remedies available at law or in equity.
<br />14. CONFIDENTIALITY. Except as required by law, including, but not limited to, laws applicable to
<br />government contract and public audits, record retention and data practices, the parties agree that the
<br />rates set forth on Exhibit A, including any adjustments thereto, and any other pricing information shall
<br />be considered confidential and shall not be disclosed to third parties without the other party’s written
<br />approval.
<br />15. MISCELLANEOUS. (a) The prevailing party will be entitled to recover reasonable fees and
<br />court costs, including attorneys' and expert fees, in enforcing this Agreement. In the event Customer
<br />fails to pay Company all amounts due hereunder, Company will be entitled to collect all reasonable
<br />collection costs or expenses, including reasonable attorneys’ and expert fees, court costs or handling
<br />fees for returned checks from Customer; (b) The validity, interpretation and performance of this
<br />Agreement shall be construed in accordance with the law of the state in which the Services are
<br />performed; (c) If any provision of this Agreement is declared invalid or unenforceable, then such
<br />provision shall be deemed severable from and shall not affect the remainder of this Agreement, which
<br />shall remain in full force and effect; (d) Customer’s payment obligation for Services and the Warranties
<br />and Indemnification made by each party shall survive termination of this Agreement.
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