HomeMy WebLinkAboutC93-016 Agreement with We RecycleG93 -16 -34 THE COUNTY WE RECYCLE, A AGREEMENT BETWEEN OF EAGLE, STATE OF AND COLORADO NONPROFIT COLORADO CORPORATION THIS AGREEMENT, made and entered into this t k, day of v,.9 � - , 1993 by and between the Board of County Commissio ers of the County of Eagle, State of Colorado, a body corporate and politic (hereinafter referred to as the "County ") and We Recycle, a Colorado Nonprofit Corporation, (hereinafter referred to as the "Contractor "). W I T N E S S E T H: THAT, the County has awarded the Contractor grant funds in the amount of ONE HUNDRED THIRTEEN THOUSAND DOLLARS ($113,000.00) for the purpose of providing the citizens of the County the opportunity to recycle waste products. THAT, in consideration of the mutual promises, covenants and conditions contained herein, the parties hereto agree hereby as follows: 1. SCOPE of SERVICE Contractor shall utilize and spend the funds provided solely for the recycling services contemplated and described in Exhibit A attached hereto and incorporated herein by this reference. 2. PAYMENT A. The County shall pay one - quarter of the sum described above ($28,250.00) upon the execution of this Agreement by both parties. B. The remaining payments shall be made as follows: (1) On April 1, July 1, and October 1, 1993, Contractor shall provide the County with a summary of the previous quarter's activities, including quantity of materials collected, wages expended, changes in inventory of trucks and other equipment, and a description of any changes in the operation which materially deviate from the proposed activities described on Exhibit A. (2) Should the County be satisfied that the operation is continuing to benefit the citizens of the County, another quarterly payment in the amount of $28,250.00 0 o shall be paid to the Contractor within ten (10) days of the receipt and review of the Contractor's quarterly summary by the County's Budget Director. 3 . 4 . PERIOD O F AGREEMENT A. The term of this Agreement shall commence January 1 1 1993, and end December 31, 1993. However, the County may terminate the contract between the County and the Contractor (therefore terminating this Agreement) on ten (10) days' notice if it is deemed by the County that the Contractor is not fulfilling the goals of the recycling program as described in Exhibit A, or for other sufficient reasons. B. Notwithstanding the above, in the event the Contractor becomes insolvent, or is declared bankrupt, or dissolves, then the County may declare in writing that this Agreement is terminated, and all rights of the Contractor and obligations of the County shall thereupon terminate and cease immediately. RETURN OF F UNDS A. Any funds not expended at contract termination may be required to be returned to the County, as well as any funds lost or diverted or otherwise not properly expended according to project objectives. B. To protect the County's interest in this project, the funds which may be due the County pursuant to Paragraph 4.A shall immediately constitute a first lien on the property of Contractor, and on after - acquired property of the Contractor, until the County determines it has been paid in full all amounts due it by Contractor. 5. RECORDS AND INSURANCE The Contractor shall also Requirements: comply with the following A. The Contractor shall maintain all records pertaining to this Agreement for a minimum of three (3) years, which records may be subject to an audit by federal, state, or county auditors or their designees as requested, during reasonable business hours, upon forty -eight (48) hours' written notice. If misuse of funds is discovered by an auditor, the Contractor shall return said misused funds -2- to the County as previously described herein. B. The Contractor shall maintain insurance in the following amounts, and shall provide the County with certificates of said coverage. Liability insurance required under 2) and 3) shall be adjusted to comply with any changed limits in the Colorado Governmental Immunity Act, Title 24, Article 10, Colorado Revised Statutes. 1) Workmen's Compensation shall be carried, including coverage for disability, for all compensated persons performing services for Contractor under this Agreement. 2) General Liability Coverage shall be carried in the following amounts for coverage of claims for damages arising from the performance of services under this Agreement, including but not limited to personal injury or death, property damage, and other damages imposed by law upon the Contractor, its subcontractors, sublessees, agents or employees: $150,000 for any injury to one person in any single occurrence. $600,000 for an injury to two or more persons in any single occurrence ($150,000 limit per person) . 3) Comprehensive Motor Vehicle Insurance shall be carried in the minimum amounts of $150,000/$600,000 for bodily injury, and $600,000 for property damage, each occur- rence. All liability and property damage insurance required hereunder shall be Comprehensive General and Automobile Bodily Injury and Property Damage form of policy. C. At the conclusion of the term of this agreement, the Contractor shall obtain an external audit, and shall provide the County with copies of same. 6. NOTICE Any notice provided for herein shall be given in writing by certified mail, return receipt requested, which shall be addressed as follows: THE COUNTY: Eagle County c/o County Attorney P.O. Box 850 Eagle, Colorado 81631 -3- TAE CONTRACTOR: WE RECYCLE c/o Mauri Nottingham P.O. Box 1000 Avon, CO 81620 7. MODIFICATIONS AND WAIVER The Contractor shall not assign any rights or duties under the Agreement to a third party without the written consent of the County, which shall determine the acceptability of the third party to the County. Any effort to effect such an assignment without the written consent of the County will terminate the Agreement immediately at the option of the County 8. MISCELLANEOUS A. The parties of this Agreement intend that the relationship of the Contractor to the County is that of an independent contractor. No agent, employee or volunteer of the Contractor shall be deemed to be an agent, employee or volunteer of the County. B. Providing this grant to the Contractor will not in any way affect the County's right to operate the Eagle County Landfill in Wolcott, Colorado, or the County's right to control access to and the operation of equipment upon the site of the Eagle County Landfill. C. Should the Contractor cease operation of the program contemplated in Exhibit A, for any reason, the County shall assume the right to continue or terminate any subcontracts which may exist between the Contractor and any other party(ies) related to said program. B. This Agreement shall be binding upon and inure to the benefit of the Contractor and the County and their respective heirs, legal representatives, executors, administrators, successors and assigns; provided, however, that neither party may assign nor delegate any of its rights or obligation hereunder without first obtaining the written consent of the other party. C. In the event that a dispute should arise relating to the performance of the services to be provided under this Agreement, and should that dispute result in litigation, it is agreed that the prevailing party shall be entitled to recover all reasonable costs incurred in the defense -4- 0- (7) of the claim, including staff time, court costs, attorney's fees, and other claim- related expenses. D. The validity or unenforceability of any particular provision of this Agreement shall not affect the other provisions hereof, and this Agreement shall be construed as if such invalid or unenforceable provisions were omitted. E. Contractor shall indemnify and hold harmless the County with respect to any claims, liability, or judgments from any acts or omissions of the Contractor, and any of the Contractor's officers, employees, agents or volunteers. F. The Contractor shall comply with all applicable laws, resolutions, and codes of the State of Colorado and the County of Eagle. G. No person shall have any personal financial interest, direct or indirect, in this Agreement. H. The County's financial obligations under this agreement are contingent upon its receiving sufficient revenues within its budget. IN WITNESS WHEREOF, the parties hereto have executed this Agreement the day and year first above written. The parties hereto have signed this Agreement in quadruplicate One counterpart each has been delivered to the County and the Contractor. ATTEST: COUNTY OF EAGLE,, STATE OF COLORADO, By and Through Its BOARD OF COUNTY COMMISSIONERS 0 By: Chairman a ula- LJ Clerk to t e Board of County Commissioners cm ATTEST: Se reta (SEAL) STATE OF COLORADO ) ) SS County of Eagle ) CONTRACTOR: WE RECYCLE By: /M /1� � wl Print Name: AA, v r r Alo f wr Gee Title: F ra Srde .4 The foregoing was acknowledged before me this c day o , 199X by M m n ►�c; and as President and Secretary of WE RECYCLE, a Colorado non - profit corporation. awimi phrmmmz' atw ar, My commission expires: y°S r . M tne9 PA IM C \recycle.93 A , u-� - 0-j.� 0-n �Q�CAA-4-2' Nota Publi M. CIBIT A EAGLE COUNTY RECYCLING OPERATING PLAN FOR 1993 ---------------------------------------- - - - - -- 1. Materials collected and associated markets. CURRENTLY COLLECTING: Aluminum Cans Newsprint Newsprint Newsprint Newsprint Glass Containers Office Paper Plastic Containers Phone Books Corrugated Cardboard FUTURE: Old Magazines Steel Cans Batteries 2. community areas served. MARKET: Anheuser -Busch Recycle America /Denver United Waste /Grand Junction Eagle- Gypsum Products Blackmore Metals /Rifle Coors Glass /Golden Weyerhauser /Denver Manley Plastics /Denver U. S. West Direct /Denver Republic Paperboard /Denver Tri -R Systems Recycle America Walmart /Avon Drop -off locations with steel bins. West Vail - Vail das Schone Mall Vail - West side of old post office Avon /Beaver Creek - City Market Edwards /Berry Creek - Stop /Save Store /Edwards Eagle - Fairgrounds parking lot Gypsum - Hiway 6 Store Minturn /Red Cliff - Round House Parking Lot 3. Recycling Centers A. Wolcott: This warehouse facility contains approximately 3000 sq. ft. and is made available at no charge, by B.F.I., through the end of 1993. This space is presently serving as the center of our baling operations. All of the collected plastics are sorted, baled and stored there. A limited amount of corrugated cardboard is also baled. Local haulers then transport these bales to Denver markets. A glass collection container and a container for newprint are also at this location. This central county location as well as its proximity to the land -fill makes this facility ideal as a recycling center. The near by access to a rail spur could possibly serve our operation in the future. B. Vail Village: The west side of the old Vail post office was made available for use as a temporary recycling center by the Town of Vail. This facility has about 525 sq.ft. in addition to a large parking area for trucks, trailer and roll -off containers. This warehouse area is presently used for collection and sorting of office paper and houses the aluminum can processing equipment that was donated by Anheuser- Busch. Large roll - off containers for glass and newsprint are also located here. This facility will probably not be available for use after April 1993. Another location is Vail village is being sought for our use. Page 4. Labor Operations. A. Under sub- contract, B.F.I. will collect from all 7 drop -off sites from Minturn to Gypsum. They will also pick -up all commercial accounts currently served by WE RECYCLE. Pick -up will also be done at participating schools. The collected materials will be delivered to the recycling centers to be processed by the WE RECYCLE staff. B.F.I. will make newsprint deliveries to the Eagle /Gypsum plant. Under the new mode of operations WE RECYCLE staff will be cut back to 2 employees. (We are currently operating with 4 1/2 employees during 1992.') WE RECYCLE will not use any trucks on a regular basis. B.F.I. will continue to do the long -haul deliveries to Denver, Rifle and Grand Junction for a fixed fee. B. WE RECYCLE will employ one manager and one plant operator to receive, separate and process all B.F.I. delivered goods at the Wolcott and Vail locations. The manager is also responsible for the day -to -day office management in Vail and public education including school tours. 5. Equipment Inventory (1) 85 GMC Cargo Van - value $5500 (1) 86 ISUZU Cargo Van - value $11650 (1) 84 FORD Cargo Van - value $5200 (1) Bobcat 743B Loader - value $12600 ( ) 90 gal. containers - value $1500 (2) Side -dump Containers value $11000 (1) Vertical Baler - value $4000 (1) Vertical Baler - value $4000 (1) Glass Crusher - value $650 ( ) 32 gal. containers - value $1000 (1) Drop -off container - value $1100 (1) Drop -off container - value $1100 (1) Drop -off container - value $1100 (1) Roll -off container - value $4000 (4) Drop -off container - value $4400 (3) Roll -off containers- value $10000 (1) 40 ft. semi - trailr - value $5000 (1) Can Crusher - Blower - value $10000 (1) Scale _ value $400 ( ) Various Recycling Vehicles - to be sold - leased to B.F.I. - leased to E.V.C.F. - owned WE RECYCLE - maintained by B.F.I. - owned WE RECYCLE - owned WE RECYCLE - owned WE RECYCLE - owned B.F.I. - owned WE RECYCLE - owned WE RECYCLE - owned Town of Eagle - owned Town of Gypsum - owned Edwards /Berry Creek - owned WE RECYCLE - donated by WALMART - owned B.F.I. - owned B.F.I. - owned Anheuser -Busch - owned Anheuser -Busch - owned Anheuser -Busch - owned B.F.I. G.` Other H.ntities Involved A. Honey Wagon trash collectors have initiated a curbside recycling program amoung their residential customers. They have purchased a special recycling and trash truck for this purpose. All of their recyclables are delivered and contributed to WE RECYCLE. B. Several volunteers are involved in operating at the Vail and Wolcott recycling centers on a regular basis. Their assistance is primarily in sorting of office paper and sorting of plastics. Volunteers are also involved in fund - raising, education and media communications. C. The Vail Trail transports approximately 7,000 lbs of newsprint to Weyerhauser in Denver on a weekly basis. D. Vail Associates is operating their own in -house recycling program for aluminum cans, glass and office paper. They regularily transport their office paper (and ours) to Weyerhauser in Denver. E. Eagle- Gypsum Products is using newsprint in the manufacture of wall - board. They ordinarily take 15 - 24 tons per month. They are currently using none of our paper. 7. 1992 financial participants A. Eagle County $70,000 B. Town of Vail $14,100 C. Town of Avon $10,000 D. Town of Eagle $ 2,000 F. Town of Gypsum $ 2,000 H. Commercial Contributions I. Private Contributions on "­aT;nRV111;P BROWNRX443M INDUSTRIES ACCOUNT NEW ACCOUNT 'NEW SERVICE LOCATION LOCATION CODE: [1 REINSTATE CUSTOMER CHANGE SERVICE LEVEL S 14 ryJtJu OTHER CHANGE 1 ORM1 am, 0 ©�■■■■�m■■■■■■i■■■��■ OTHER SERVICE- OTHER CHARGEW CUSTOMER DEPOSIT. PURCHASE ORDER NO: RECEIPTS REOUIRED ?: N (Y/N) DEPOSIT RETURN DATE: P.O. DURATION IN MONTHS: C.O.D.? N (Y IN) SPECIAL BILLING ?: N (Y /N) SPECIAL INSTRUCTIONS: SEE ATTACHED ADDENDUM TO SERVICE ArRFFMFNT TERM JANUARY 1, 1993 THR T DF EmFR 31, 1 99-1 `+ $ TERMS AND CONDITIONS Services Rendered. The undersigned 18Fq agrees to furnish me sold waste collection and disposal services and equipment specified above and Customer agrees to mare the payments as provided for herein and abide by the terms and conditions of this Agreement. Binding Effect. This Agreement Is a legally binding contract on the part of both BFI and Customer and their respective heirs, successors and assigns in accordance with the terms and conditions set out herein. Term. This Agreement is for a term of three years a shag be renewed or successive three year terms without further action by the parties, but may be terminated at the end of any three year period by either of the parties hereto by not less than sixty days prior written notice (Certified MaE. Payments. Customer shag pay 81`1 on a monthly basis for the senrices adfor equipment furnished by BFI in accordance with the charges and rates provided for herein. Payment shag be made by Customer to BFI within ten (10) days of the receipt of an invoke from BR. Company may impose and Customer agrees to pay a late fee for all past due payments not to exceed the maximum rate for sane allowed by applicable lair. Waste Material. The waste material to be collected and disposed of by 8R pursuant to this Agreement is solid waste generated by Customer excluding radioactive, volatile, highly flammable, explosive, blomedlcal; toxic or hazardous material. The term "hazardous material" shag Include, but not be limited to, any amount of waste listed or characterized as hazardous by the United States Environmental Protection Agency or any state agency pursuant to the Resource Conservation and Recovery Act of 1976, as amended, or applicable state law. 8FI shall acquire tide to the waste material when it is loaded into BR's trucks. Title to a liability or any waste excluded above shall remain with Customer aunt Customer expressly agrees to defend, indemnify and laid hanrdess BR from and against any and all damages, penalties, flees a gatiftes resulting from or arising out of such waste excluded above. Liability for Equipment. Customer acknowbdges that g has the cue, custody ad control of equipment owned by BR and accepts responsibility a liability for the equipment and its contents except when it is being physically handled by employees of BR. Therefore, Customer expressly agrees to defend, indetnntly and hod harmless BFI from and against any aid all claims for loss of or damage to property, or injury to or death of person or persons, resulting from or arising in arty maaror out of Customer's use, operation or possession of any.egulpment furnished under this Agreement. Damage to Pavement. Customer aGmowledges that BR shag not be gable or any damages to pavement, curbing, or driving surface resulting from its trucks servicing an agreed upon area. Landfill and Fuel Adjustments. BFI reserves the right to adjust the rates hereunder based upon increases in fuel and landfill costs. Other Rate Adjustments. BFI may adjust the rates hereunder from t o tine ne to reflect the percentage increase In the U.S. city avert Consume Price Index for All Urban Consumers (CPI•U), published by the U.S. Department of Labor, Bureau of Labor Stagsfics. 8R may aim adjust the rates hereunder in an amount In excess of such percents increase with Customer's approval upon thirty (30) days notice from BFI prior to the effective date of the adjustment. Changes. Changes in the rates, the type, size and amount of equipment, and the frequency of service may be agreed to rxally or In writing by the parties without affecting the validity of this Agreement. Consent to oral changes shag be evidenced by the practkes and actions; of the parties. This Agreement shall continue in effect or the term provided herein and shag apply to changes of service address baton of the Customer within the area In which OR provides cogecton service. Failure to Perform. In the evert Customer termlin" ohs Alinement prior to the expiation of its term, Customer agrees to pay BFI as liquidated damages an arnount equal to the sum of Customer's monthly billings or the most recent six months, or, if Custom has not been serviced for sic months, Customer's average monthly Wgings for the months serviced muMpged by six. In the event Customer fags to pay 8FI all amounts which become due under this Agreement, or fags o perform he obligations hereunder, and BR refers such matter to an.attomay, Customer agrees o pay, In addition to the amount due, any and all costs Incurred by 8FI as a result of such action, including, to the extent permitted by law, reasonable attorneys' fees. Excused Performance. Neither party hereto shag be gable for its fagae to perform hereunder due o contingences beyond its reasonable control Including, but rat Iirnited o, strgces, riots, fires, and acts of God. Assignment. Neither party shag assign this Agreement without the prior written consent of the other party, except that BR withal Customer's consent may assign this Agreement to arty corporation affiliated with 8FI. TERMS: NET 10 DAYS CUSTOMER NAME WE RECYCLE, - BROWNING- FERRIS INDUSTRI S OF COLORADO, ING, corpora ion VAIL DI RICT sY (SIGNATURE) : .mil nti A�l�r..h� P� $ X737 PRINT NAME ANDTITLE i�y'RSn a° (NAME JSTPP SUBSIDIARY) EFFECTIVE P/TITL CONTRACT DATE 01 / 01 /93 11/87 ORIGINAL BFI 2130-475 0 0 ADDENDUM TO SERVICE AGREEMENT This Addendum to Service Agreement (the "Addendum ") is incorporated into and made part of the SERVICE AGREEMENT by and between BROWNING- FERRIS INDUSTRIES OF COLORADO, INC., a Colorado corporation ( "BFI "), and WE RECYCLE, a Colorado non - profit corporation ( "Customer "), No. 5- 1479380, dated effective the 1st day of January, 1993 (the "Agreement "). In the event of a conflict between the terms of the Agreement and the terms of this Addendum, the terms of this Addendum shall control. Capitalized terms used in this Addendum which are not otherwise defined herein shall have the meaning ascribed to them in the Agreement. RECITALS A. Customer is a non - profit corporation providing services for the recycling of certain aluminum, glass, plastic and paper materials to persons and entities located in portions of Eagle County, Colorado extending from the areas of Vail to Minturn to Gypsum (the "Service Area "). Customer is funded in part by the Eagle County Board of County Commissioners (the "County "). B. BFI is any entity normally engaged in the business of providing materials collection services. C. In connection with certain funds earmarked by the County for recycling efforts, Customer desires to engage BFI to provide certain collection and transportation services and BFI desires to perform such services for Customer. AGREEMENT In consideration of the terms, covenants and conditions set forth herein, the parties agree as follows: 1. Services to be Performed BFI shall furnish all materials, labor, tools and equipment to commence, diligently pursue and complete the following (the "Services "): (a) Aluminum, glass, plastic and paper materials collections as needed from established locations in the Service Area, including without limitation, the bins at Vail, Avon, Edwards, Minturn, Eagle and Gypsum; (b) Collection of glass as needed from designated commercial entities in the Service Area; and (c) Local transportation of such material in and around the Service area to the Vail Recycling Center and /or the Wolcott recycling site, as appropriate. (d) Collection volume under Subparagraph 1(a) and (b) shall aggregate approximately 2,000 tons for the Initial Term as that term is defined below. 2. Term The "Initial Term" of the Agreement shall commence on January 1, 1993 and shall expire on December 31, 1993. Thereafter, the term of the Agreement shall be automatically extended, commencing January 1, 1994 and expiring December 31, 1994, contingent only upon Customer receiving adequate funding from the County to compensate BFI from such second year according to the terms described herein. The Initial Term and any extensions thereof may hereinafter be collectively referred to as the "Term ". 3. Compensation In consideration for BFI performing the Services, Customer agrees to pay BFI the annual sum of One Hundred Thousand Dollars ($100,000.00), payable in 12 equal, monthly installments of $8,333.33 each on the first day of each month of the Term. BFI agrees that it shall not adjust the rate charged for the Services during the Term of the Agreement. 4. Lease of Property For use by BFI in connection with the Agreement, Customer hereby leases to BFI any collection containers now owned by Customer which BFI desires to utilize. 5. Insurance At all times during the Term of the Agreement, BFI shall carry and maintain, in full force and effect, at its sole cost and expense, the following insurance policies. Customer and the County shall be named as additional insureds as their respective interests may appear on the policies listed in Subparagraphs 5(a) and (b). BFI agrees to provide Customer and the County with certificates of insurance evidencing the policies listed above upon execution of the Agreement. (a) Comprehensive general liability insurance in an occurrence format in amounts of at least $150,000 for any injury to one person in any single occurrence, $600,000 for any injury to two or more persons in any single occurrence ($150,000 limit per person), including the following coverages: contractual liability, personal injury, broad form property damage, independent contractors and premises operations. (b) Comprehensive automobile liability insurance on all vehicles used in connection with this Agreement, in amounts of at least $150,000 for any injury to one person in any single occurrence, $600,000 for any injury to two or more persons in any single occurrence ($150,000 limit per person), and $600,000 for property damage per occurrence. (c) Workers' Compensation insurance in accordance with the provisions of the Workers' Compensation Act of the State of Colorado for all its employees engaged in the Services. IM 7) In the event any portion of the Services is subcontracted, BFI shall require the subcontractor similarly to provide the insurance listed in Subparagraphs 5(a), (b) and (c) above. 6. Indemnity BFI agrees to indemnify, defend and hold harmless Customer, the County, their respective officers, directors, agents, servants and employees of and from any and all liability, claims, liens, demands, actions and causes of action whatsoever arising out of or related to any loss, cost, damage or injury, including death, of any person or damage to property of any kind caused by the misconduct or negligent acts, errors or omissions of BFI, its subcontractors or any person directly or indirectly employed by them, or any of them, while engaged in any activity associated with the Services, or related thereto. 7. Compliance with Law, Rules and Regulations BFI warrants that it will comply with all applicable laws, ordinances, rules and regulations having jurisdiction over the Services and /or the Service Area. BFI further warrants that the drivers of each of the vehicles used in the performance of the Services herein shall be properly trained and licensed. 8. Default If either party to the Agreement fails to perform in accordance with the terms, covenants and conditions of the Agreement or is otherwise in default of any of the terms of the Agreement, after giving 10 days' prior written notice to the other party of the alleged default, and upon said defaulting party's failure to cure such breach within said 10 days, the non - defaulting party shall have the option to terminate the Agreement and pursue all remedies available at law or in equity. 9. Delegation /Assignment Neither party may (a) delegate its respective duties under the Agreement; nor (b) assign the Agreement without the prior written consent of the other party. Subject to the above, the terms, covenants and conditions of the Agreement shall be binding on the successors and assigns of either party. 10. Notices Any notice, demand or communication which either party may desire or be required to give to the other party shall be in writing and shall be deemed sufficiently given or rendered if delivered personally or sent by first class United States mail, postage prepaid, addressed as follows: -3- Customer: We Recycle P.O. Box 1000 Avon, Colorado 81620 Attention: President If to BFI: Browning- Ferris Industries of Colorado, Inc. P.O. Box 19 Wolcott, Colorado 81655 Attention: Manager Either party shall have the right to designate in writing, served as provided above, a different address to which any notice, demand or communication is to be mailed. 11. Condition Precedent The parties specifically agree that the receipt by Customer of adequate funding from the County to fund BFI's compensation herein described shall be a condition precedent to the effectiveness of the Agreement and to any obligation of either party to perform the duties described herein. 12. Specific Provisions of the Agreement Notwithstanding anything to the contrary contained in the terms and conditions of the Agreement, the parties agree as follows: (a) The nature of the waste material to be collected and disposed of under the Agreement is unknown to Customer, including without limitation whether such waste material contains radioactive, highly flammable, explosive, biomedical, toxic or hazardous material. BFI assumes all risk as to the nature of the waste material and agrees to hold Customer harmless from any damages, penalties, fines and liabilities resulting from or arising out of such waste material. (b) Customer shall not be responsible for liquidated damages in the event of early termination of the Agreement. 13. Miscellaneous (a) The Agreement (including this Addendum) contains the entire agreement and understanding of the parties with respect to the entire subject matter hereof, and there are no representations, inducements, promises or agreements, oral or otherwise, not embodied herein. Any and all prior discussions, agreements, proposals, negotiations and representations relating thereto are merged herein. (b) If any clause or provision of the Agreement shall be held to be invalid in whole or in part, then the remaining clauses and provisions, or portions thereof, shall nevertheless be and remain in full force and effect. -4- V (c) No amendment, alteration, modification of or addition to the Agreement shall be valid or binding unless expressed in writing and signed by the parties to be bound thereby. (d) The captions of each section are added as a matter of convenience only and shall be considered of no effect in the construction of any provision of the Agreement. (e) The Agreement shall be governed by and interpreted in accordance with the laws of the State of Colorado. (f) Any and all warranties, provisions, rights and obligations of the parties herein described and agreed to be performed subsequent to the termination of the Agreement shall survive the termination of the Agreement. (g) Time is of the essence with respect to the performance of the Services. IN WITNESS WHEREOF, the parties hereto have executed this Addendum as of the respective dates set forth below to become effective as of the date first written above. BFI and Customer hereby make this Addendum an integral part of the Agreement. CUSTOMER: WE RECYCLE, a Colorado non - profit corporation Date: By: IJAM4b d-d-crrr' . --. Title: 6,.✓+ BROWNING- FERRIS INDUSTRIES OF COLORADO, INC., a Colo ado corporation B Title: Date: -5-