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C2010-378 - 10/12/2010 - Approved
i '). . r D ~ f S AGREEMENT THIS AGREEMENT ("Agreement") is made as of the date executed by the last signatory (the "Effective Date"), by and between, RecycleRewards, Inc., a Delaware Corporation having its principal office located at 9S Morton Street, 7th Floor, New York, NY 10014 {"RecycleRewards"}, and the City of Corpus Christi, ahome-rule municipal corporation in the State of Texas, having its principal executive office located at 1201 Leopard Street, Corpus Christi, Texas 78401-2825 {" Municipality"). RecycleRewards and the Municipality may be hereinafter referred to individually as a "Party" and collectively as the "Parties." RECITALS: WHEREAS, RecycleRewards is a marketing and rewards company that encourages consumers to recycle by offering them reward points that can be redeemed at participating merchants; and WHEREAS, RecycleRewards desires to have Municipality p rovide RecycleRewards' incentive based recycling program {the ".Incentive Recycling Program") to Municipalirty's residents ("Residents") in the Territory (as defined in Section. b below) on the terms and conditions set forth herein; and WHEREAS, Municipality would like to offer Residents the Incentive Recycling Program and has represented to RecycleRewards that it has, and that during the Term (as defined in Section 2 below) hereof it will have, the resources to perform all of its obligations hereunder. NOW, THEREFORE, in consideration of the mutual provisions contained herein and intending to be legally bound hereby, the parties hereto agree as follows: 1. Services and Assets. A. Services. RecycleRewards agrees to provide Municipality with the Incentive Recycling Program services described in Exhibit A attached hereto and incorporated herein by reference (the "Services") from the Effective Date through the end of the Term. B. Assets. RecycleRewards further agrees to provide Municipality with RFID Tags ("Tags") to the extent necessary and other equipment as described in Exhibit B attached hereto and incorporated herein by reference (collectively, the "Assets"). In the event that the cart manufacturer does not utilize its awn technology which is approved by RecycleRewards, the Tags shall either be provided to the cart manufacturer or retrofitted in the field pursuant to the terms and conditions of Section 8 hereof. The carts will be purchased by Municipality from a vendor (provided that the carts meet RecycleRewards' specifications which includes Cart vendor providing RecycleRewards an electronic list of RFID numbers and associated serial numbers imprinted on the cart} ("Carts"). Municipality shall provide, at least thirty {30) days prior written notice of any and all requests for Assets. All Assets shall be used by Municipality during the Term solely in connection with the Incentive Recycling Program. RecycleRewards shall deliver the initial Assets to be delivered by it to Municipality at the delivery location{s} and pursuant to the schedule set forth an Exhibit B. Municipality shall 2010-37E M2010-240 10/12/10 RecycleRewards ~~~ ~ ~ 1 R r , ensure that the Tags are at all times free of Iiens and encumbrances arising from any debts or actions of Municipality, and shall use commercially reasonable efforts to ensure that all Tags are used in accordance with all applicable laws in the manner in which they are intended io be used and in accordance with all instructions and warning labels. If, in its sole discretion, RecycleRewards chooses to finance the cost of the Assets, Municipality may be required to execute a waiver agreement in a farm substantially similar to that which is included in Exhibit B under the heading "Waiver Form." Municipality shall be responsible for ensuring that the serial number with corresponding RFID tag number of each Tag placed an a Cart and the corresponding Resident address to which the Cart is delivered is provided to RecycleRewards electronically in the agreed-upon format as set forth in Exhibit C (initially and each subsequent occasion an which the Cart is moved}, In the event that all of the Tags are provided by the Cart manufacturer, the Tags do not form a part of RecyleRewards's Assets and all provisions in this Agreement between the Parties pertaining to RecycleRewards's ar Municipality's obligations regarding collection of the Tags, disposition of the Tags, application of intellectual property rights in the Tags, etc., are accordingly modified and waived, unless otherwise explicitly applicable. C. Disposition of Assets. Unless otherwise agreed to in writing by the parties, immediately following termination of this Agreement for any reason; RecycleRewards shall have the right to pick up {at its own cost and expense} from the Municipality and/or its Residents all of the Assets, free and clear of all liens, claims and encumbrances and in the same condition as they were provided by RecycleRewards to Municipality, ordinary wear and tear excepted. In furtherance of the foregoing, Municipality shall, upon termination of this Agreement, provide RecycleRewards with access to Municipality property for the purpose of retrieving the Assets and shall allow RecycleRewards to assemble all of the Assets at -the location specified in Exhibit S pending pick-up by RecycleRewards, such pick-up to occur not later than 60 days from the termination date. In the event of any damage beyond reasonable wear and tear, lass, or unreturned Assets, IVlunicipality is responsible to RecycleRewards for the replacement costs of any and all lost, stolen, damaged or unreturned Assets. 2. Term. The Term of this Agreement shall commence on the Effective Date and shall continue for five (5} years and five {5) months unless sooner terminated pursuant to the other provisions of this Agreement, by operation of law, or otherwise. The Term may be extended by mutual written agreement of the Parties. 3. Best Business Practices. During the Term, Municipality shall use its best business practices to implement and actively promote the Incentive Recycling Program to its Residents within the Territory. For this purpose "best business practices" shall include, but not be limited to: utilizing the Assets and Services in accordance with the terms and conditions of this Agreement, and complying with all federal, and state and local laws, rules and regulations, including without limitation all privacy laws, 4. Municipality Obligations. Municipality agrees, throughout the Term of this Agreement, to comply with, fixlfill and operate the Incentive Recycling Program in accordance with all of the terms and conditions of this Agreement,, including without limitation the Service Standards described in Exhibit C attached hereto and incorporated herein by reference {the -2- ,s ~ ~ ~ "Service Standards") and the Scope of Supply Standards described in Exhibit D attached hereto and incorporated herein by reference (the "Scope of Supply"). 5. Fees. A. Service Charge. A service charge of sixty two cents {$,62) per month per household participating in the Incentive Recycling Pragram shall be charged. A discount of one cent {.O l) per month per household participating in the Incentive Recycling Program shall be given far every additional eight thousand (8,000) households added by Municipality after the first eighty thousand (80,000) hausehold are added to the Incentive Recycling Pragram. For purposes of this Section 5 participating in the Incentive Recycling Pragram shall mean any- Resident that is provided a Cart containing a Tag and having access to the Incentive Recycling Program at any time during the applicable month. B. Adjustment of Charges. The monthly .service charge payable by Municipality shall not be adjusted during the Term except as provided in this Section 5(B} and Section 5{A) above. During the Term, upon each anniversary of the date of Effective Date, the monthly service charge shall be increased by one hundred percent { 100%} of the percentage increase in the Annual Consumer Price Index, All Items, for urban wage earners and clerical workers for the South Urban area ("CPI Adjustment"), as published by the U.S. Government's Bureau of Labor Statistics. C. Program Launch D~te/Payment of Fees, The "Program Launch Date" shall be determined as the date upon which the Carts with the required technology (whether Tags or otherwise} have been delivered to Residents and Municipality has commenced its collection routes, The first Payment of monthly fees shall be made prior to or on the fifteenth (I Sty') day of the month following the month in which the Program Launch Date occurred payable on the number of residential customers who are provided a Cart as of any date during the month of the Program Launch Date. Payment of all monthly fees far all subsequent months during the Term shall be made by Municipality prior to or on the fifteenth {15th} day following the end of each month payable on the number of residential customers who are provided a Cart as of any date during the prior month and the number of residential customers who have continued to maintain a Cart that was provided in a previous month during the Term of this Agreement. RecycleRewards shall provide Municipality reasonable support documentation evidencing residential customers who have been provided with a Cart as of the date designated by RecycleRewards during the prior month. Overdue amounts shall bear interest at the rate of 1.5% per month, compounded monthly, or the maximum Iegal rate, if less, In addition, in the event RecycleRewards pursues collections of any overdue amounts that remain unpaid for 90 days or more, Municipality shall reimburse RecycleRewards for all necessary collection costs (including reasonable attorneys' fees) incurred. Territory; Resident C„_., „ ,.., onversron. The Territory shall be the City of Corpus Christi in Nueces County, Texas. Municipality will provide the. mailing addresses of the Residents as per the agreed upon format in Section 1B electronically to RecycleRewards not later than October 15, 2010, prior to Cart technology installation. ~3- k ~ ~ 7. Confidentiality; Rights in Data. A. Each Party shall keep confidential and not disclose to any third party and will not use, except for the purposes of this Agreement, all business, fnancial, technical, customer, pricing and other proprietary information, and data (including customer data) that it receives or has received from the other Party ("Proprietary Information"). Por any information to be deemed "Proprietary Information," the same must be in written form and appropriately identified and marked "PROPRIETARY" at the time of disclosure to the receiving party or, alternatively, if the information is disclosed orally, the same must be summarized in writing, marked "PROPRIETARY" by the disclosing party, and be provided to the non-disclosing party within ten (10) days after such disclosure. The disclosing party must identify and mark all pages, sheets, maps, and other information pertaining to this Agreement that the disclosing party considers as "Proprietary Information." All marked information provided by RecycleRewards to the City will be treated by the City as information that may be excepted from required public disclosure under the Texas Public Information Act (Texas Government Code, Chapter 552}. If the City receives a request far the information marked accordingly and supplied by RecycleRewards, the request and information will 6e forwarded to the Office of the Texas Attorney General far a determination as to its public availability under the Act. The City will withhold the information from the requestor until the Attorney General's decision is received. The City will only release the information. if directed to do so by the Attorney General or as otherwise required by law. Notwithstanding the foregoing, all data that is gathered and stored by RecycleRewards about Residents is subject to the RecycleRewards Privacy Policy and all applicable state and federal laws and, as such, no such data regarding recycling or online activities of Residents need to be specifically marked as "Proprietary" to be considered- "Proprietary Information". Municipality hereby expressly acknowledges the RecycleRewards Privacy Policy prior to deploying the Incentive Recycling Program to 'any Resident. B. The obligation set forth in Section 7.A does not apply to any materials or information of the types specified above to the extent that a Party can document that such materials or information: (i} are known to the Party prior to the receipt of such materials or information from the other Party; (ii) are in the public domain other than as a result of a breach of this Agreement; (iii} were furnished to a third party by the disclosing party with no restriction on disclosure; or (iv) information which the receiving Party developed independently of any disclosures of such information by the disclosing Party, C. Each party will awn all right, title, and interest, including any copyrights or other intellectual property rights, in and to any data or information that it collects, compiles or' creates regarding Residents. As between the parties, the owner of such rights will have the right to use as it wishes any such information, subject to applicable law and ifs own privacy policy, with na duty.to give the other party notice, gain the other party's consent, account to the other party or share royalties with the other party. Notwithstanding the foregoing, RecycleRewards acknowledges that Resident information provided to RecycleRewards by the City or obtained through the services provided under this Agreement is also governed by the provisions ofthe Texas Utilities Code, Chapter 1$2, -4- ,. 8. RecycleRewards IP. A. Grant of License, Municipality acknowledges that RecycleRewards awns certain valuable intellectual property used in, connection with, relating to, and/or derived from the Incentive Recycling Program. Such intellectual property includes without limitation all of RecycleRewards' sales, marketing, informational and other materials relating to the Program and all copyrights therein, all Resident, and other data derived from operation of the Incentive Recycling Frogram, all RecycleRewards know-how, trade secrets, and technology (including the RFID technology and account information used in the Tags) relating to the Program listed on Exhibit F, including without limitation as may be disclosed in RecycleRewards' patent applications or patents and those RecycleRewards trademarks, service marks and logos listed and/or depicted on said Exhibit F {said trademarks, service marks and logos and the goodwill associated therewith are referred to collectively herein as the "Marks"}. The foregoing is collectively referred to herein as the "RecycleRewards IP." Subject to the terms and conditions of this Agreement, RecycleRewards hereby grants to Municipality a limited, nonexclusive, nontransferable license during the Term to use the RecycleRewards IP, including as incorporated in the Tags, within the Territaxy solely in connection with the promotion and implementation of the Incentive Recycling Program. RecycleRewards shall also grant Municipality certain limited rights in Resident data, as set forth in Section A.3 of Exhibit A. The parties acknowledge and agree that Exhibit F may from time to time be amended as agreed in writing by the parties, and thereafter said Exhibit F shall be deemed to include all RecycleRewards IP then listed and/or depicted thereon. Municipality shall have no right to sublicense any of the RecycleRewards IP. Notwithstanding the foregoing, RecycleRewards acknowledges that Resident information provided to RecycleRewards by the City or obtained through the services provided under this Agreement is also governed by the provisions of the Texas Utilities Code, Chapter 182. B. Ownership of RecycleRewards IP. Municipality acknowledges that RecycleRewards is the sole owner of the RecycleRewards IP, including as incorporated in the Tags, and Municipality agrees that it will do nothing inconsistent with such ownership. Municipality further agrees that nothing in this Agreement shall give Municipality any right, title or interest in the RecycleRewards IP or the Tags other than the right to use them in accordance with this Agreement, and that all use of the RecycleRewards IP and Tags by Municipality and all goodwill associated therewith shall inure to the benefit of RecycleRewards, Municipality agrees that it will not at any time during the term of this Agreement or after its termination (i) register or use any mark or other term confusingly similar to the Marks, or (ii} challenge the title of RecycleRewards to any of the RecycleRewards IP. Notwithstanding the foregoing, RecycleRewards acknowledges that Resident information provided to RecycleRewards by the City or obtained through the services provided under this Agreement is also governed by the provisions of the Texas Utilities Code, Chapter 182. C. Qualit~Standards. Municipality agrees that the nature and quality of all services rendered by Municipality in connection with the Marks; all services provided and goods sold by Municipality under the Marks; and all related advertising, promotional and other related uses of the Marks by Municipality {together, the "Uses") shall conform to quality standards set by and under the control of RecycleRewards. -5- ,x ~ D. ualit Maintenance, Municipality agrees to cooperate with RecycleRewards in facilitating RecycleRewards' control of the nature and quality of Municipality's Uses, and further agrees that RecycleRewards shall have the right to request, review, and. mutually approve or disapprove copies ar samples of all written materials and demonstrations of all other Uses, at any time, and shall 6e entitled to require that Municipality modify any of the Uses to conform to RecycleRewards' quality standards. E. Form of Use. Municipality agrees that it will not use the RecycleRewards IP ar the Tags for any purpose whatsoever, other than as contemplated herein in connection with the Incentive Recycling Program. Municipality further agrees to use the Marks only in the form and manner and with appropriate legends as prescribed from time to time by RecycleRewards in accordance with customary trademark practices, and not to use any other trademark or service mark in combination with the Marks without prior written approval of RecycleRewards. F. Infringement, Proceedings. Municipality agrees to notify RecycleRewards of any unauthorized use by others of the RecycleRewards IP, including without limitation the Tags, as soon as such use comes to Municipality's attention. Municipality shall also forward any evidence it obtains of any unauthorized use to RecycleRewards unless prohibited by law or the limitations of an ongoing criminal investigation. RecycleRewards shall have the sole right and discretion {but not the obligation) to bring infringement or unfair competition proceedings involving the RecycleRewards IP. Municipality agrees to assist RecycleRewards with all such proceedings upon request by RecycleRewards. G. No Modification. Municipality agrees and acknowledges that, except as expressly permitted herein, it has na right to, and that it will not (and will net permit any third party to} (i} use, modify, copy, or otherwise reproduce the RecycleRewards IP in whole or in part, (ii} reverse engineer, decompile, disassemble, or otherwise attempt to derive the source Cade farm ar structure of the RecycleRewards IP or the Tags, {iii) distribute, sublicense, assign, timeshare, sell; rent, lease, grant a security interest in, ar otherwise transfer the RecycleRewards IP or the Tags or Municipality's rights hereunder, or (iv} remove any RecycleRewards proprietary notices embedded in or placed on the Assets or any Incentive Recycling Program materials, except as expressly provided herein. Any attempted distribution, sublicense, assignment, timesharing, sale, renting, lease, or other transfer the RecycleRewards IP or any of Municipality's rights hereunder in breach of the terms of this Agreement shall be null and void and shall be deemed a material breach by Municipality hereunder. Municipality will limit access to the RecycleRewards IP to its employees who require such access in connection with the permitted use hereunder and who have agreed in writing to observe Municipality's obligations hereunder. Similarly, RecycleRewards will limit access to the Municipality's resident information, including monthly usage and derived figures and data, to its employees who require such access in connection with the permitted use hereunder. H. Return of Technolo~y. Immediately following termination of this Agreement for any reason, Municipality shall notify RecycleRewards if it has any Tags {as referenced in Exhibit B} provided by RecycleRewards in its possession and shall make arrangements for destruction of such Tags or pick up of such Tags by RecycleRewards. If the -6- s Tags have been supplied by RecycleRewards and not the Cart manufacturer, Municipality shall also have the option to purchase Tags for the price of $ l .Op per Tag instead of destruction or pickup. 9. RecycleRewards Indemnification . RecycleRewards shall defend any action, suit, or proceeding brought against Municipality alleging that the RecycleRewards IP infringes any United States patent, trademark or copyright, and RecycleRewards shall indemnify and hold Municipality, its off cers, directors and employees, harmless against damages finally awarded against Municipality, costs, expenses, and losses (including, without limitation, court costs and reasonable attorneys' fees and expenses} in connection with any such action, suit or proceeding; provided, that (i) Municipality notifies RecycleRewards promptly in writing of the claim in question, (ii) RecycleRewards is provided the opportunity to share in control of the defense of the action and all related settlement negotiations, and (iii) Municipality provides RecycleRewards with all commercially reasonable assistance, information and authority to perform the above at RecycleRewards'_ expense. In the event that Municipality's use of the RecycleRewards IP is enjoined by a court of competent authority, RecycleRewards shall, at its sole option and at its expense, either {I) procure for Municipality the right to continue using of the RecycleRewards IP, or (II) modify the RecycleRewards IP to avoid infringement without material impairment of their functionality. If neither of the foregoing remedies can be obtained upon commercially reasonable terms, this Agreement shall terminate, Municipality shall return the Assets to RecycleRewards, and RecycleRewards shall refund to Municipality any prepaid rental or service fees. The foregoing indemnity shall not apply to the extent the alleged infringement is attributable to the combination of the. RecycleRewards IP with products or services not provided or approved by RecycleRewards, or to the extent the RecycleRewards IP is modified or altered by any person other than RecycleRewards or its agents, or if the RecycleRewards IP is used outside the scope of this Agreement (any such combination, modification, alteration, or use is collectively referred to herein as a "Municipality Modification"}. THIS SECTION STATES RECYCLEREWARDS' SOLE LIABILITY HEREUNDER WITH RESPECT TO INFRINGEMENT OF ANY INTELLECTUAL PROPERTY AND PROPRIETARY RIGHTS. 10. Municipality Indemnification. To the extent allowed under Texas law, Municipality agrees to, and hereby does, 'indemnify, defend and hold RecycleRewards its officers, directors, managers, employees, members, and assigns, harmless from and against any and all losses, claims, damages, costs, -7- J ~ charges, expenses, Iiabilities, suits, demands, proceedings and actions, including reasonable attorneys fees and cost of defense, ari sing out of or relating to: (i) Municipality's use of any of the Assets or Services; {ii) any act or omission of Municipality in connection with the Incentive Recycling Program; {iii) a Municipality Modification; or (iv} any breach or violation or any- alleged breach or violation of any federal, state or local laws, rules or regulations by Municipality related to this Agreement. RecycleRewards shall promptly notify Municipality when it learns of any such claim. Municipality shall be entitled to control the defense of any such claim. RecycleRewards may engage counsel of its own to join the defense at RecycleRewards' cost. iI. Limited Warranty and Disclaimer of Ali Other Warranties. RECYCLEREWARDS WARRANTS THAT IT SHALL PROVIDE THE INCENTIVE RECYCLING PROGRAM AS DESCRIBED HEREIN. ALL RIGHTS, GOODS, AND SERVICES PROVIDED BY RECYCLEREWARDS HEREUNDER ARE PROVIDED "AS IS." EXCEPT AS EXPRESSLY PROVIDED HEREIN, THERE ARE NO WARRANTIES, EXPRESS OR IMPLIED, BY OPERATION OF LAW OR OTHERWISE, REGARDING OR RELATING TO THE INCENTIVE RECYCLING PROGRAM, THE ASSETS OR THE RECYCLEREWARDS IP OR TO ANY OTHER MATERIALS, GOODS OR SERVICES FURNISHED TO MUNICIPALITY HEREUNDER OR IN CONNECTION HEREWITH. RECYCLEREWARDS SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING WITHOUT LIMITATION THOSE OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. NO REPRESENTATION OR OTHER AFFIRMATION OF FACT, INCLUDING BUT NOT LIMITED TO STATEMENTS REGARDING CAPACITY, SUITABILITY FOR USE OR PERFORMANCE OF THE INCENTIVE RECYCLING PROGRAM, WHETHER MADE BY RECYCLEREWARDS REPRESENTATIVES OR OTHERWISE, WHICH IS NOT CONTAINED IN THIS AGREEMENT, SHALL BE DEEMED TO BE A WARRANTY BY RECYCLEREWARDS FOR ANY PURPOSE OR GIVE RISE TO ANY LIABILITY OF RECYCLEREWARDS WHATSOEVER. MUNICIPALITY HEREBY ASSUMES ALL RESPONSIBILITY FOR THE SELECTION OF THE INCENTIVE RECYCLING PROGRAM AS APPROPRIATE TO ACHIEVE THE RESULTS INTENDED BY MUNICIPALITY. 12. Limitation of Remedies and Liabilities. MUNICIPALITY'S SOLE REMEDY AND RECYCLEREWARDS' SOLE OBLIGATION WITH RESPECT TO ANY CLAIMS, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE AND PRODUCT LIABILITY) OR OTHERWISE, ARISING OUT OF, CONNECTED WITH, OR RESULTING FROM THIS AGREEMENT SHALL BE GOVERNED BY THIS AGREEMENT, AND IN ALL CASES MUNICIPALITY'S REMEDY SHALL BE LIMITED TO MONEY DAMAGES NOT EXCEEDING THE UNAMORTIZED PORTION, IF ANY, OF SERVICE FEES PAID TO RECYCLEREWARDS PRIOR TO THE DATE OF SUCH CLAIM. WITHOUT LIMITING THE FOREGOING, IT IS EXPRESSLY AGREED THAT IN NO EVENT SHALL RECYCLEREWARDS OR ITS SUPPLIERS OR ANYONE ELSE WHO HAS BEEN INVOLVED IN THE PERFORMANCE OF THIS AGREEMENT ON BEHALF OF RECYCLEREWARDS, INCLUDING ITS EMPLOYEES, AGENTS, REPRESENTATIVES, -8- x f ~ SHAREHOLDERS, DIRECTORS, OR SUBCONTRACTORS, BE LIABLE FOR ANY (I) INDIRECT, INCIDENTAL, SPECIAL; RELIANCE, EXEMPLARY,- COVER OR CONSEQUENTIAL DAMAGES, INCLUDING BUT NOT LIMITED TO LOST PROFITS OR REVENUE, LOST BUSINESS OPPORTUNITIES, LOST SAVINGS,-LOST DATA, LOSSES CAUSED BY DELAY OR THE DOWNTIME OF COMPUTERS OR SERVERS, OR LOSSES FROM INTERRUPTION, TERMINATION, OR FAILED OPERATION OF THE INTERNET OR THIRD-PARTY TELECOMMUNICATION SERVICES, EVEN IF RECYCLEREWARDS HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, {II} CLAIMS AGAINST MUNICIPALITY BY ANY THIRD PARTY EXCEPT AS PROVIDED 1N SECTION 9 ABOVE, OR {III} DAMAGES, INCLUDING PRODUCT LIABILITY DAMAGES, CAUSED BY ANY NON-RECYCLEREWARDS PRODUCT. THE FOREGOING LIMITATIONS SHALL NOT APPLY TO RECYCLEREWARDS' DUTY OF INDEMNIFICATION UNDER SECTION 9 ABOVE. 13. Insurance. During the Term, pursuant to the .terms of the Municipality's self insurance program, Municipality shall maintain insurance coverage. During the Term, RecycleRewards shall procure and maintain at its own expense and for its own and Municipality's benefit the insurance coverage described on attached Exhibit E. RecycleRewards shall produce evidence of the Insurance described in Exhibit E no later than September 1, 2010. 14. Expenses; Disbursements. Except as otherwise expressly provided herein, both parties agree to pay all of its own expenses incurred and all disbursements made as a result of complying with the terms and conditions of and performing its obligations under this Agreement. 1S. Force Maieure. Any delay or inability of either party in complying with the terms hereof arising from unforeseeable causes or events beyond its control, including, without limitation, Municipality's failure to supply necessary information or assistance, acts of Gad, acts of public enemy, acts of the government in either sovereign or contractual capacity, terrorism, fires, floods, Internet failure or acts of a third party, shall excuse any resulting or related delay or failure in the performance by either party . In such event, the date of performance shall be extended for a reasonable period of time following the resolution of the cause of such delay or failure. 16. Termination. In addition to ether express termination provisions in this Agreement, this Agreement may be terminated as follows: A. At any time by mutual written agreement of the parties. B: By RecycleRewards, immediately upon notice to Municipality, in the event Municipality violates Sections 7 or 8 hereof. C. By either Party in the event (i) of a breach of this Agreement by the other Party (the "Breaching Party") that is not cured within ten {10) days for failure to pay fees, or thirty (30) days for other breaches, after delivery of notice of -such breach to the Breaching Party, or (ii) that the other Party ceases doing business, is the subject of a voluntary bankruptcy, insolvency or similar proceeding, is the subject of an involuntary state or federal bankruptcy, insolvency, or similar proceeding that is not dismissed within sixty (60} days of -9- ,, , filing, makes an assignment for the benefit of creditors, becomes unable to pay its debts when due, or enters into an agreement with its creditors providing for the extension or composition of debt. Nothing contained herein shall prevent or otherwise limit a Party from obtaining injunctive or other equitable relief pursuant to Section 18 hereof. D. In the event that RecycleRewards elects to finance the cost of the Assets pursuant to Section 1.B herein and the lender exercises its right to seize the Assets for any reason Municipality reserves the right to immediately terminate this Agreement without any cure period. E. By operation of Texas law, in the event that Municipality does not include payment of this contractual Agreement in any annual budget. Both parties recognize that the continuation of any contract after the close of any fiscal year of the City, which fiscal year ends on July 31 annually, is subject to future appropriations and budget approval providing for such contract item as an expenditure in that budget. The City does not represent that the budget item will. be actually adopted, ,that determination being within the sole discretion of the City Council at the time of adoption of each annual budget. F. Termination shall be without prejudice to any rights and obligations of the Parties that have vested prior to the effective date of termination. 17. Effect of Termination. Upon termination of this Agreement: A. Municipality's rights, licenses, and privileges granted under this Agreement shall automatically terminate. B. Municipality shall promptly pay to RecycleRewards any amounts accrued and/or due and owing hereunder. C. Unless Municipality elects to purchase the Tags for $1.00 per Tag Municipality shall immediately cease using and shall return all Tags (in accordance with Section 8H), RecycIeRewards IP and RecycleRewards Proprietary Information in its possession and all tangible embodiments thereof D. Sections 1B, 7, 8B, 9 through 12, 14,' 17, 24, and 28 hereof and all provisions herein relating to the confidentiality of customer data will survive termination of this Agreement. 1.8. Injunctive Relief. Municipality understands and agrees that RecycleRewards shall suffer irreparable harm in the event that of a breach by Municipality of any obligations under this Agreement and that monetary damages shall be inadequate to compensate RecycieRewards for such breach. Accordingly, Municipality agrees that, in the event of a breach or threatened breach of any of the provisions of this Agreement, in addition to and not in limitation of any other rights, remedies or damages available at law or in equity, RecycleRewards may seek to obtain a temporary restraining order, preliminary injunction and permanent injunction in order to prevent or restrain any such breach. Municipality shall be similarly afforded under this Agreement the same privilege to seek injunctive relief in the event of a breach by RecycleRewards. -10- l9. Authority. Each Party hereby represents and warrants to the other that it has full power and authority to enter into this Agreement, and that this Agreement has been duly authorized, executed and delivered by, and constitutes a valid, binding and legally enforceable agreement of, such Party. 20. Notices. All notices, requests, waivers, demands or other communication required hereunder shall be in writing and shall be deemed to have been duly given if delivered by postage prepaid certifed or registered air mail, return receipt requested, or sent by telefax and addressed to the proper party as follows: If to RecycleRewards, RECYCLEREWARDS, 1NC. 95 Marton Street, 7~' Floor New York, NY 10014 (212) 659-9900 If sent by telefax to: {212)-504-283 8 If to the Municipality, City of Corpus Christi Attn: Director, Solid Waste Operations 2525 Hygeia St. Corpus Christi, TX 78415 (361} 826-1972 (361} 826-1965 (Alternate} If sent by telefax to: (361) 826-1971 or such other address as shall be specified from time to time in writing by the Party entitled to receive such notices. Any notice sent by telefax shall be deemed to have been given on the date the fax was dispatched, with proof of a valid transmission, or in case of certified ar registered mail, return receipt requested, upon the date appearing on the postal receipt of certification or. registration witnessing the receipt of the notice. 21. No Joint Venture. Nothing contained herein shall be construed to place the Parties in the relationship of partners or joint venturers or principal and agent ar employer and employee, and no Party shall have the power to obligate or bind the other Party in any manner whatsoever. 22. Successors and Assigns. Municipality may not assign, sublicense or delegate any of its rights or duties under this Agreement without prior written notice to and consent of RecycleRewards (such consent not to be unreasonably withheld, conditioned or delayed) and to -11- t any secured party of same, if a Waiver Form (Exhibit B} has been executed. Similarly, RecycleRewards may not assign, sublicense ar delegate any of its rights or duties under this Agreement without prior written notice to and consent of the Municipality, such consent not to be unreasonably withheld, conditioned or delayed, except for in the case of a sale of more than fifty percent (50%) of the stock ar all or substantially all of the assets of RecycleRewards, in which case no consent will be needed. This Agreement shall be binding upon and inure to the benefit of the Parties hereto and their respective successors and permitted assigns. 23. Waiver and Modification. The waiver of a breach of any of the terms hereof or of any default hereunder shall not be deemed a waiver of any subsequent breach or default, whether of the same or similar nature, and shall not in any way affect the .other terms hereof. No waiver, change, alteration, modification or addition to this Agreement shall be effective unless in writing and properly executed by both Parties. Notwithstanding the foregoing, either Party may change the address set out in section 20' by properly informing the other Party, without the necessity of a formally amending this Agreement. 24. Governing Law. This Agreement and any disputes relating to this Agreement shall be construed under the laws of the State of Texas, without regard to Texas conflicts of laws principles. For purposes of any legal action or proceeding arising out of this Agreement, RecycleRewards submits and consents to the non-exclusive jurisdiction of the federal and state COUrtS in Texas. 25. Entire. Agreement. This Agreement constitutes the entire agreement and understanding between the Parties with respect to the subject matter hereof and terminates and supersedes any prior agreement or understanding, oral or written, between the Parties with respect thereto. The Parties acknowledge and agree that neither of them has made any representation with respect to the subject matter of the Agreement or any representations inducing its execution and delivery except those specif tally set forth. Each of the Parties acknowledges that such party has relied on its own judgment in entering into the Agreement. 26. Headier. The headings in this Agreement are for convenience only and are' in no way intended to describe, interpret, define, or limit the scope, extant, ar intent of this Agreement or any of its provisions. 27. Rights and Remedies Cumulative. The rights and remedies provided by this Agreement are cumulative and the use of any right or remedy by either Party shall not preclude or waive the right to use any or all other remedies. Said rights and remedies are given in addition to any other rights the Parties may have by law, statute, relevance or otherwise. 28. Severability. Should any paragraph or portion thereof of this Agreement be found invalid ar unenforceable by any court of competent jurisdiction, it is the intent of the Parties that the validity of the remaining paragraphs of the Agreement shall not be effected thereby. 29. Counterparts. This Agreement and any amendments hereto may be executed in several counterparts, and all of such executed documents shall constitute one agreement binding on all the Parties hereto. -12- r ~ IN WITNESS WHEREOF, the Parties hereto have executed this Agreement in duplicate to be effective as of the date executed by the last signatory. RECYCLEREWARDS, INC. By: Name: ~S ~o ~ ~~ Title: ~,oa Date: ~', q, icy CITY OF CORPUS CHRISTI By: IC `A 1 .Escobar City Manager Date: h/ /S~/~~ Attest: By: Armando Chapa City Secr tary Date; (~~~~~~ Approved as to form: This day of , 2010 c. Elizabet undley r Assist City Attorney for the City Attorney ~~ ~ ~~~~,,~,~~.,,~ Al#'fiN~al~~D B~ Cfl~iPiCIL ....~.~.~„~,~~ ...r...~ SECRE'~A~ . -13- ~ } ' 1 EXHIBIT A RECYCLEREWARDS SERVICES A. OPERATIONS 1. Implementation, technical trainingsupport • RecycleRewards will execute a "kick-off meeting" on or about October 1, 2010 and assign a Project Manager to Municipality. A custom project plan will be developed within fourteen (14) days of the kick-off meeting and weekly meetings will be held with Municipality to ensure project plan compliance. • Technical training and support for the identification and data management systems including the wireless data transfer system. 2. Reporting Container management and performance reports Such reports shall include resident-by-resident and route-by-route information regarding participation rates, and tonnage collected. These reports will be provided monthly by the RecycleRewards Account Manager. The Account Manager will provide monthly meetings to review program performance, metrics etc. Subject to any conflicting provision of the Texas Utility Code, all such resident data is owned by RecycleRewards and is pxovided to Municipality under a limited, non-exclusive and non-transferable license during the Term. Subject to Texas .law, IVlunicipality shall keep all such data strictly confidential and shall use it for internal purposes only. Municipality shall not be entitled to receive any other resident or other data derived by RecycleRewards from the Incentive Recycling Program. 3. Incentive Management and Resident Services • Resident and vendor reward fulfillment services and management, including RecycleRewards' Internet, phone and mail systems. 4. Education and Community Outreach Services • Web based material and information on recycling and sustainability 5. Asset Maintenance • RecycleRewards will provide routine maintenance for serviceable Assets including repair of truck systems and regular software updates as needed. RecycleRewards will train Municipality maintenance staff to support maintenance if .Municipality so desires. Additionally, RecycleRewards and Municipality will -14- • ~ 1 1. allow mutually agreed upon service providers to perform maintenance services for Assets. B. MAItK)GTING 1. Local/Regional Vendor Set-up and Relations • RecycleRewards will consult with Municipality to determine potential vendors, however RecycleRewards will be responsible in its discretion for calling on and setting-up all local/regional vendors in the Incentive Recycling Program. • RecycleRewards will contact and explain reward/redemption program to Vendors and will prepare and execute the requixed Vendor agreement. • RecycleRewards will organize and develop Vendor Reward parameters and will work with Vendors on all-approvals. • RecycleRewards will work with Municipality to add Municipal messaging, alerts and news to the appropriate Resident users. 2. National Vendor RecycleRewards will utilize existing relations with National Vendors and use reasonable efforts to expand their reward offerings to the Territory. 3. Market Research Information • RecycleRewards will be responsible for preparing, delivering and reviewing with Municipality and Vendors all applicable market research material. 4. Marketing Material RecycleRewards will be responsible for designing all marketing material that will be used by Municipality for any type of media advertising, mailers or general distribution. Municipality will be responsible for mailing costs associated with the Welcome Kit only (not to exceed $1.00 per household}. RecycleRewards will provide Municipality with approved artwork and copy for it to use in its marketing material to Residents and for the marketing of the Incentive Recycling Program. RecycleRewards reserves final approval on all advertising and other materials on which the RecycleRewards name, logo or approved artwork is used. Municipality may consult with RecycleRewards on specific marketing programs or community outreach ideas associated with the RecycleRewards Program, but RecycleRewards reserves the right of final approval on any marketing campaign. -15- 9 5. Training • Municipality will make available all necessary personnel, programs and materials for properly training designated Municipality personnel on the RecycleRewards program. This will include training of the Municipality's Customer Call Center staff. RecycleRewards will provide a single point of contact for Customer Call Center issues and questions. 6. Customer Service and Reward Redemption/Rewards Fulfillment • RecycleRewards will maintain a Customer Service Department to answer resident queries relating to the Incentive Recycling Program,, C. RECYCLEREWARDS MSA RECYCLING PROGRAM 1. Municipality will use a designated Material Recycling Facilitie(s) (MRF} for disposal of their Incentive Recycling Program recycling material. Such facility will accept the material in a commercially reasonable and competitive manner. 2. Municipality will provide RecycleRewards information on recycled loads, by route, including loads that are contaminated, based on their normal acceptance criteria. -16- EXHIBIT B ASSETS A. DESCRIPTION OF ASSETS Tags, containing proprietary RecycleRewards. technology and account information, that are affixed to Carts (the "Tags"), if supplied by RecycleRewards and not Cart manufacturer 2. Electronic Weighing Delivery System {EWDS} truck technology to read, record and transmit collection data. This system does not include scales. B. DELIVERY LOCATIONS City of Corpus Christi Public Works 2S2S Hygeia Circle, Corpus Christi Texas 7841 S C. DELIVERY SCHEDULE RecycleRewards shall be responsible for delivery of the Tags to the Cart manufacturer on or about October 1 S, 2010 in the event that the Cart manufacturer does nat utilize its own technology in lieu of the Tags. Truck equipment retrofit will be complete thirty (30) days prior to the Program Launch Date. D. INVENTORY LIST RecycleBank will procure and maintain on-board identification equipment systems to be installed on the below outlined rear-load and Automated Side Load (ASL) recycling collection vehicles. System hardware includes the radio frequency identification (RFID} onboard antenna and reader as well as the data storage and transfer unit to be installed on recycling collection vehicles. Software for the identification and data management systems includes the wireless data transfer system. The truck equipment will be outfit on the following trucks: REAR LUA© UNITS VHITH TIPPERS`- UNIT YEAR MQI]EL LICENSE TIPPER SERIAL NUMBER CONFIDENTIAL PAGE CONTACT THE LEGAL DEPT. BEFORE RELEASING A COPY OF THIS PAGE f ~ a ~ I. ("Agreement"} for the placement of certain Equipment, as defined below, at (the "Location"}. (" ") has entered into a Master Loan and Security Agreement No. with RecycleRewards dated as of (the "Security Agreement") covering the equipment described in the Security Agreement and any additions, accessions or replacements thereto (the "Collateral"). Municipality and RecycleBank now desire to enter into this Waiver Agreement ("Waiver") as of NOW, THEREFORE, notwithstanding anything to the contrary contained in this Waiver, RecycleBank, Municipality and agree as follows: 1. Municipality shall have no right of bailment and Municipality shall not hold any or all of the Collateral in bailment. 2. The Collateral shall be considered to be personal property and shall not be considered part of any real property regardless of whether or by what means it is or may become attached or affixed to any real or other personal property. 3. Municipality has no, and will not claim any, interest in the Collateral. 4. Upon { }days prior written notice to Municipality, Municipality will collect and round up, or otherwise cooperate with RecycleBank and to cause any third party subcontractor employed by Municipality or RecycleBanlc or fnance company to collect and round up all the Collateral and permit to enter the Location for the purpose of removing the Collateral, provided that indemnifies Municipality and holds it harmless from and against any other person, corporation or entity claiming to-have any interest in the Collateral. Municipality agrees to such removal of the Collateral. rf , in removing any of the Collateral damages any improvements of Municipality at the Location, will cause the same to be repaired at 's expense. 5. Municipality shall not remove any of the Collateral without 's prior written consent. Municipality shall notify within 10 days of any termination or expiration of the Agreement and permit to remove the Collateral as described in Section 4 above if so requests. 6. All notices hereundex shall be sent by reliable, overnight messenger, with proof of delivery. The terms of this Waiver shall be binding on the heirs, successors and assigns of each party. RecycleBank may not assign the Agreement without 's and Municipality's prior written consent. Municipality may assign the Agreement with prior written notice to 7. Municipality and RecycleBank shall not amend the Agreement without prior written notice to -3- • E 8. This Waiver may only be modified by a writing signed by an authorized representative of each party. 9. This Waiver may be executed in counterparts all of which together shall constitute the original. 10. In the event of any conflict between the terms of this Waiver and the Agreement, the terms of this Waiver shall prevail. 1~1. This Waiver shall be deemed to have been made under and shall be governed by the laws of the State of New York in all respects, .including matters of construction, validity and performance. -4- EXHIBIT C MUNICIPALITY SERVICE STANDARDS 1, Data Transfer Municipality or its agent must run a daily diagnostic test on all Program equipment, pre and post trip, and forward issues to RecycleRewards via a-mail daily. Municipality or its agent must report all equipment problems (truck, data readers, scanners, etc.} to RecycleRewards via e-mail at the end of each working day (immediately) and must dispatch spare equipment to finish remaining route. 2. Training • Municipality or its agent will provide all equipment and facilities necessary for all employees to be properly trained in the use of Incentive Based Recycling equipment. All drivers/helpers will be trained on the incentive based recycling equipment. • Municipality will support RecycleRewards' provision of quarterly training updates and re-training, as needed. 3. Missed Pick U s • In the event that RecycleRewards provides "manual points" to Residents to make up for recycling that is not recorded due to any operational or maintenance issue not in the control of RecycleRewards, and such manual points exceed 10% of the total points issued in any month, RecycleRewards and Municipality will agree to meet and resolve operational or maintenance issues. If after sixty {60} days manual points continue to exceed 10%, RecycleRewards will charge Municipality .02 cents far each point issued "manually" during that month. At no point will manual point charges exceed $7,000 per month, or $8,000 per calendar year. Such charge will appear on the next invoice to Municipality. 4. Resident Address List Format To be provided in a Microsoft excel spreadsheet or other compatible format no later than October 15, 2010. Such list, once supplied by Municipality to RecycleRewards, forms an integral part of this Agreement, the content of which is incorporated into this Agreement by reference as if fully set out in its entirety at the time of execution of this Agreement by the parties. The parties agree that resident utility account information is subject to disclosure and use in accordance ~. with the Texas Utility Code, Chapter 182, and any other applicable federal and State laws. -2- s 1 x, • ~ EXHIBIT D SCOPE OF SUPPLY STANDARDS 1. Material Processing • Municipality or its agent will deliver all recycling material that results from the Incentive Recycling Program to the program's designated MRF. This will be a full "single stream" commodity acceptance MRF that will provide processing on a commercially reasonable and competitive basis. 2. Cart Purchase and Deiivery • The Carts will be properly decaled and fitted with the necessary RFID customer identification tags to specifications to be provided by RecycleRewards. • Municipality (or its "agent) is responsible for communicating all new and terminated RecycleRewards residents to RecycleRewards Customer Service Department on a monthly basis in the format provided herein. 3. Customer Service Requirements Municipality (or its agent) is responsible far providing a procedure, to RecycleRewards' reasonable satisfaction, for promptly and courteously handling customer calls relating to Incentive Based Recycling, including those specific to the redemption and rewards program. This will include the seamless transferring of customer calls to RecycleRewards' Customer Service department. • ~ Municipality (or its agent) will cooperate with RecycleRewards, as reasonably requested by RecycleRewards, in connection with providing customers with a copy of RecycleRewards' "Customer Terms and Conditions." 4. Subcontracting • Municipality (or its agent) cannot subcontract any RecycleRewards work without prior written notice to and consent of RecycleRewards (such consent not to be unreasonably withheld, conditioned or delayed) and to any secured parry of same, if a Waiver Form (Exhibit B} has been executed. 5. Material Processing Municipality (or its agent} will deliver all recycling material that results from the Incentive Recycling Program to the program designated MRF in the Territory or, in the absence of a licensed facility, Municipality will negotiate and secure an agreement with a designated local MRF in the Territory. In ~~ either case, this will be a "single stream" commodity acceptance MRF that will provide processing on a commercially reasonable and competitive basis. -2- r t ~ 1 EXHIBIT E INSURANCE S~' S , ~ Contractor {RecycleRewards) shall maintain, at its own expense, with an insurer having a Best's rating of A or better, a commercial general liability insurance policy providing at least One Million U.S. Dollars (US $1,000,000} of coverage (including caverage for products liability), and an excess liability insurance policy providing an annual aggregate of Three Million U.S. Dollars (US $3,000,000} insuring against events involving the Incentive Recycling Program (collectively, the "Required Policy"}. The Required Policy must be written on either an occurrence basis or on a claims-made basis and shall name the City as additional insured. The Required Policy shall endeavor to provide far at least ten {10) days' prior written native to the City of the cancellation or any substantial modification thereof (including, withaut limitation, any reduction of the aggregate limit of coverage}. If Contractor cancels or substantially modifies the Required Policy or fails to keep the Required Policy in full force and effect, the City shall have the right, at anytime thereafter, without prejudice to its other rights, to terminate this Agreement, effective immediately upon notice to Contractor of such termination. Contractor shall also maintain, at its own expense, in full force and effect during the Term: (i} worker's compensation insurance, as required by applicable law, providing at least One. Million U.S. Dollars (US $1,000,000) of caverage and (ii} umbrellalexcess liability insurance providing at least Three Million U.S. Dollars (US $3,000,000) of coverage. The City of Corpus Christi is a self insured public entity. as allowed by the Statc of Texas for General Liability, Auto Liability, and Workers' Compensation. Liability limits are established by the Texas Tort Claims Act. The City of Corpus Christi's Iiability under the Act is Iimited. Under the Act, liability in.ca5es of personal injuries or death is limited to a maximum amount of $250,000 per person and $500,000 for each single occurrence. The Risk Liability Fund is funded by the City of Corpus Christi in accordance with generally accepted accounting principles through actuarially calculated annual cantributians. Information regarding filing a claim with the City of Carpus Christi can be obtained from the Risk Management Division office at City Hall, 1201 Leopard Street, Corpus Christi, Texas 78401, or by phone at {361) 826-3300. m ~' 3 . . `. ~ °'• 3 EXHIBIT F RECYCLEREWARDS IP A. MARKS 1. Trademark Serial No. 781509,350 2. Trademark Serial No. 781509,329 B. OTHER IP Patent App. No. 111345,867 -~ Method and System of Improving Recycling through the Use of Financial Incentives 2. Provisional Patent App. No. 601825,383 -- Method and System for Managing an Entity 3. Provisional Patent App. No 601892.650 -Method and System of a recycling system comprising a plurality of sub-systems 4. Provisional Patent App. No 601892,849 -Method of recycling comprising picking up carts, disposing recyclable goods at a recycling center, validating data regarding recyclable goods, imparting data into management software, generating reports, and providing e-commerce rewards 5. Provisional Patent App. No 601892,852 -Embodiments of the present invention generally relate to recycling system and method thereof In one embodiment, the cart is provided with RFID, such that information regarding the cart (e.g., address, ownership, condition, etc.) can be retrieved. The RFID may be any RFID device suitable for embodiments of the present invention 6. RecycleBank Envirostrong Software. - This application converts residential recycling activity {pounds and participation} into reward credits. It is a web- based application that manages each residential account, allows residential users to access their account, redeem rewards, and interact with RecycleRewards Customer Service Department 7. Provisional Patent App. Na 601954,851- Multi-family dwellings generally have central facilities where residents bring their recyclables to a common collection bin. In accordance with one embodiment of the present invention, a recycling kiosk provides alocation-based rewards model where participants share a common collection container